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October 10, 1975

UNITED STATES of America ex rel. Robert A. BORNHOLDT, Petitioner,
Vito TERNULLO, Superintendent, Fishkill Correctional Facility, Respondent

The opinion of the court was delivered by: MACMAHON


 MacMAHON, District Judge.

 Petitioner, confined in Matteawan State Hospital, Beacon, N. Y., seeks post-conviction relief, invoking 28 U.S.C. ยง 2254 and challenging the constitutionality of his conviction and confinement under the Sixth and Fourteenth Amendments.

 Petitioner was convicted in Supreme Court, New York County, on May 26, 1970 of murdering a New York City police officer and was sentenced to twenty-five years to life. The sentencing court recommended that he never be considered for parole. Petitioner contends that he was incompetent to stand trial because he was under the influence of the drug Prolixin, a tranquilizer, during selection of the jury and that, although he raised the defense of insanity, the prosecutor failed to prove his sanity at the time of the alleged crime beyond a reasonable doubt.

 We note at the outset that petitioner appealed his conviction and it was unanimously affirmed without opinion by the Appellate Division. People v. Bornholdt, 39 A.D.2d 839, 332 N.Y.S.2d 1013 (1972), and by the New York Court of Appeals, 33 N.Y.2d 75, 89, 350 N.Y.S.2d 369, 305 N.E.2d 461 (1973). The appellate briefs and opinions show that the same issues now raised were previously raised in the state courts on direct appeal. Petitioner has thus exhausted his state court remedies. *fn1"

 We now consider petitioner's first claim that he was incompetent to stand trial because tranquilizing drugs made him unable to cooperate with his attorney during selection of the jury.

 It appears that petitioner was remanded during January and February 1970 to Bellevue Psychiatric Hospital for an examination as to his competency to stand trial. Jury selection began on March 2, 1970, with petitioner present.

 In the latter part of March 1970, after jury selection but before opening statements, the court held an evidentiary hearing following receipt of the Bellevue psychiatric report attesting to petitioner's competency. There, Dr. Stanley Portnow, then Chief of Forensic Psychiatry at Bellevue, testified that petitioner was a remissive schizophrenic. The doctor found that petitioner had no trouble communicating for he was able to confer with him and other ward personnel. The doctor also found that petitioner understood the nature of the charges against him, since he displayed a knowledge of them in his discussions with the doctor, but was unwilling to state details.

 The doctor further testified that Prolixin, a heavy tranquilizing drug, was prescribed to counteract petitioner's extreme agitation and anxiety. This drug and a companion, Artane, also administered to petitioner, caused side effects, such as excessive salivation, tremors of the hands, a mask-like facial appearance, and a shuffling gait. The doctor emphasized, however, that these drugs had no effect on petitioner's memory or cognitive faculties.

 The only defense witness upon the hearing was petitioner's attorney. He testified that he found petitioner's concentration somewhat impaired during jury selection due to petitioner's preoccupation with his physical symptoms. The attorney conceded, however, that petitioner's condition had markedly improved by the end of the jury selection.

 It appears that, although petitioner was examined by two defense psychiatrists, neither of them testified at the hearing, and, indeed, nothing in their later trial testimony gives the slightest inkling that petitioner was incompetent to stand trial.

 The trial judge recognized that petitioner suffered discomfort from the side effects of the tranquilizing medication, but found nothing to indicate that petitioner could not comprehend the nature of the charges and cooperate with his attorney.

 The test of competency to stand trial is concerned not so much with whether a defendant is afflicted with mental illness, per se, but with whether he possesses "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him." *fn2"

 While it is universally recognized that a person, who lacks capacity to understand the nature of the charges against him, to consult with counsel, and to assist in the preparation of his defense, is not competent to stand trial, *fn3" most courts considering the issue have been concerned more with consideration of what indicia of evidence mandates a hearing than with what quantum of proof is required to sustain a finding of competency. *fn4" In jurisdictions where the latter issue has been precisely considered, it appears to be the settled rule that the burden rests with the prosecution to ...

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