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November 10, 1976.

UNITED STATES of America ex rel. Paul FLAMMIA - N.Y.S.-E.H. 345, Petitioner,
Mr. Vito TERNULLO, Superintendent, Fishkill Correctional Facility, Respondent.

The opinion of the court was delivered by: HAIGHT


HAIGHT, District Judge.

 The Petitioner, by application for writ of habeas corpus, seeks reversal of his conviction upon four felony counts imposed following a trial before Judge Lipitz in Suffolk County Court. Petitioner was sentenced to a prison term of one to seven years. It is Petitioner's contention that he was denied numerous Constitutional rights because he was not given a state hearing on the question of his competency to stand trial. After careful consideration of this application, the request for writ of habeas corpus is denied.


 The Facts

 On March 15, 1973, the Petitioner Paul Flammia was convicted by a jury trial on three counts of criminal possession in the third degree and one count of conspiracy, third degree. On March 22, 1973, Petitioner was sentenced, by Judge Lipitz, to the term of one to seven years incarceration. This was to run consecutive to a sentence of up to seven years imprisonment, imposed by Judge Lipitz on July 25, 1972, following conviction for the crimes of conspiracy, third degree and grand larceny, second degree.

 The 1973 trial, whose conviction is challenged by this application, commenced on January 10, 1973. The following day, January 11, the court was recessed due to Petitioner's illness. On January 12, a new attorney was substituted to represent Petitioner. At that time, the new counsel, Mr. Caiati, claimed that the Petitioner was incoherent. Following some discussion with the judge, court was recessed until January 15.

 No courtroom business transpired on the morning of the 15th. The Petitioner had suddenly sought a hearing before Justice DeLuca, Supreme Court, Suffolk County, to determine Petitioner's claim that he required immediate medical treatment for a heart condition. However, Justice DeLuca told Judge Lipitz to proceed with selecting the jury. The People moved to stay the hearing before Justice DeLuca, which Petitioner had brought pursuant to New York CPLR Article 78. In light of this series of legal maneuvering, Judge Lipitz selected the jury on the afternoon of the 15th, and recessed the trial until January 22.

 On January 17, the Appellate Division, Second Department, stayed the Article 78 hearing. Accordingly, no order was ever issued by Justice DeLuca. In addition, the Second Department subsequently affirmed this conviction. People v. Flammia, 48 A.D.2d 1014 (2d Dept. 1975). Leave to appeal to the Court of Appeals was denied.

 Petitioner now seeks relief under 28 U.S.C. § 2241(c)(3) and 28 U.S.C. § 2254. He alleges that his right to a fair and impartial trial, guaranteed by the Sixth Amendment, has been violated by preventing him from obtaining a hearing on the competency question. Petitioner also alleges that the denial of a hearing violated his protection against cruel and unusual punishment, guaranteed by the Eighth Amendment, and his right to due process and equal protection, as guaranteed by the Fourteenth Amendment.

 Petitioner alleges that these enumerated rights were violated by New York's failure to hold a competency hearing pursuant to Article 730 of the Criminal Procedure Law of New York. He asserts that he was an incapacitated person, as defined by CPL Sec. 730.10(1):

 "'Incapacitated person' means a defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense."

 Petitioner alleges that at the time of his trial he was such an incapacitated person, due to a combination of prescribed drugs which were known to him (valium, quaalude) and prescribed drugs unknown to him. He alleges that this combination of drugs placed him in a stupor and denied his counsel Petitioner's effective assistance at trial.

 To support his allegation of incompetency and the Constitutional violations arising from the state's failure to hear the matter, Petitioner raises four points. First, he contends that his pre-trial motion for severance, which was denied, should have been viewed as an application for an incapacitated person hearing, pursuant to CPL Secs. 730.10(1) and (3). Petitioner argues that this should ...

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