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November 30, 1976.

UNITED STATES of America ex rel. Frank LAUDATI, Petitioner,
Hon. Vito TERNULLO, Superintendent, Fishkill Correctional Facility, Beacon, New York, Respondent.

The opinion of the court was delivered by: CARTER

ROBERT L. CARTER, District Judge.

Petitioner Laudati is currently serving concurrent sentences of 20 years to life imprisonment for the murder of his wife and son. The bodies of Laudati's wife and child were found on April 1, 1968. On the afternoon of March 30, Laudati had tried to hold a press conference regarding the "Communist-Mafia conspiracy" at the FBI building in New York City. A police officer took him to a psychiatrist at Lenox Hill Hospital, from which he was sent to Bellevue and then to Kings County Hospital for mental observation. He was sedated and placed in a straight jacket.

 On April 1, 1968, while still confined at Kings County Hospital, Laudati told a nurse that he had killed his wife and child with a hatchet. He repeated his confession, after receiving Miranda warnings, to police officers who came to the hospital, and to a district attorney at the stationhouse. After arraignment on April 2, Laudati was returned to Kings County Hospital for further observation.

 On April 12 and 15, 1968, four psychiatrists found Laudati to be a paranoid schizophrenic and unable to consult with counsel or understand the nature of the charges against him. *fn1" He was indicted on July 29, 1968, for murder. The court ordered further mental observation at Kings County Hospital, and on August 19, 1968, psychiatrists found defendant competent to stand trial. This report was confirmed without a hearing on September 30, 1968, when Laudati was arraigned on the murder charges and pleaded not guilty. At that time and at all subsequent times, he refused, against advice of counsel, to plead not guilty by reason of insanity.

 A Huntley hearing was begun, after many delays occasioned primarily by defense counsel, on January 27, 1970, to determine the voluntariness of Laudati's confessions. After a lengthy hearing, it was determined that Laudati was not insane when he made the three confessions, and that he had knowingly waived his constitutional rights.

 A jury trial was commenced on June 29, 1970. The defense introduced no psychiatric testimony and the prosecution was precluded from doing so; but the jury was informed of defendant's aberrant behavior at the FBI building on March 30, 1968, and of his subsequent sojourn in the psychiatric ward of Kings County Hospital. The court's charge, however, made no reference to defendant's mental state at either the time of the crime or the time of the confessions, and contained no instructions in regard to the related evidence or issues.

 The jury found Laudati guilty as charged, whereupon he was sentenced to concurrent terms of from 20 years to life. Approximately five months after sentencing, Laudati was found to be mentally ill and was transferred from Attica Correctional Facility to Dannemora State Mental Hospital. After judicial review of his case on June 3, 1971, and on April 6, 1972, an Order of Retention had been entered, to expire on April 6, 1974. Laudati is currently being held at the Fishkill Correctional Facility in Beacon, New York.

 Laudati's petition for habeas corpus relief raises the following points: (1) New York State failed to accord petitioner due process when it did not hold a hearing to determine Laudati's competence to stand trial; (2) introduction at trial of his alleged confessions violated his constitutional rights; (3) it was error to deny him compulsory process for the attendance of an expert psychiatric witness at the Huntley hearing; (4) petitioner was denied a fair trial by the trial court's failure to marshal evidence sua sponte concerning his sanity at the time of the alleged crime and at the time of his confessions.

 Petitioner has appealed his conviction to the Appellate Division of the New York State Supreme Court and to the New York Court of Appeals. The conviction was affirmed. It would seem, therefore, that all state post-conviction remedies have been exhausted.

 1. Competence to Stand Trial

 The conviction of an accused person while legally incompetent violates due process, Bishop v. United States, 350 U.S. 961, 76 S. Ct. 440, 100 L. Ed. 835 (1956), and "state procedures must be adequate to protect this right", Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 838, 15 L. Ed. 2d 815 (1966). Where there is evidence to suggest that a defendant is incompetent to stand trial, a state court's failure to accord him a hearing on this issue deprives the defendant of his constitutional right to a fair trial. Id., at 385, 86 S. Ct. 836. Defendant's failure to request a competency hearing does not constitute a waiver of the defense of incompetence to stand trial. Id., at 384, 86 S. Ct. 836.

 In light of the Supreme Court's mandate, it is necessary to determine whether, at the start of the trial, sufficient evidence existed to have required the trial court to order a hearing on petitioner's competency to stand trial. At the outset, therefore, it is crucial to distinguish the three occasions when petitioner's mental state was at issue: (1) his mental state at the time the crime was committed; (2) his mental state at the time of making the three confessions; (3) his mental state at the time of his actual trial. It is only to the last occasion that an inquiry into defendant's competency must be addressed.

 The Supreme Court directs that such an inquiry requires determining

 "whether [the defendant had] sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he [had] a rational as well as factual ...

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