These appeals come to us as the result of the defendant’s resentence on December 11, 1969 pursuant to the mandate of People v. Montgomery (24 N Y 2d 130). The defendant was originally sentenced on October 10, 1960, following his plea of guilty. That plea was interposed to the crimes charged (none of the five counts was reduced) and the defendant was sentenced to a total term of 20 to 40 years.
Prior to his interposition of the plea of guilty, the defendant was sent to Kings County Hospital for examination as to his sanity. Two psychiatrists diagnosed his condition as ‘ ‘ chronic brain syndrome associated with brain trauma — cerebral contusion—behavioral reaction ”, but concluded that he was “ presently not insane ’ ’ and that he was capable of understanding the charges against him and of making his defense. The psychiatrists ’ report noted that the defendant ‘ ‘ laughed it off ” when told that he faced a 60-year prison term, indicating that he thought his attorney was confused. The defendant had sustained a severe brain concussion in an automobile accident on March 13, 1959. His family stated that his behavior had deteriorated following the accident. However, the psychiatrists found no symptoms of organic brain injury.
Defense counsel sought to controvert the report and indicated to the court that the accident had resulted in serious changes in the defendant’s characteristics and behavior. After defense counsel outlined his reasons for disagreement with the report, the court asked him, ‘ ‘ Assuming what you say is right, what is your position? Do you wish to have a hearing on this sanity proceeding or do you just want to state your position and let me make a decision? ” Defense counsel replied, “ I just wish to state my position and let you make a decision. ’ ’ Despite this, defense counsel thereupon continued to review the defendant’s psychiatric history for the court and indicated that during the defendant’s confinement at Kings County Hospital one of the psychiatrists told him he had reason to believe that the defend*188ant was not sane.* The court, without any proof before it other than the psychiatrists’ ex parte report, thereupon found the defendant to be sane and confirmed the report.
On the date of sentence defense counsel again indicated his disagreement with the psychiatric report, noted that the defendant was not possessed of sufficient funds for an independent psychiatric examination and stated his opinion that the defend- . ant, as a result of the accident, was not in possession of all of his mental faculties.
I agree with the defendant’s contention that his inability to procure the assistance of independent psychiatrists to controvert the psychiatric report deprived him of a basic constitutional right solely as the result of his indigency. The defendant was originally sentenced some five years before the enactment of section 722-c of the County Law, which authorizes the procurement of expert services at public expense. Hence, a formal motion for such relief would have been an exercise in futility. The court was nonetheless apprised of the need for such expert services, of the defendant’s inability to pay for them and of the fact that a hearing would have been demanded had the defendant been able to procure the aid of psychiatric experts.
Both the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States emphasize that all persons accused of crime must be treated equally and may not, because of their poverty, be deprived of benefits which are provided to others (Griffin v. Illinois, 351 U. S. 12, 17). Hence, indigent persons, as a fundamental right essential to a fair trial, have the right to the assistance of counsel in criminal cases (Gideon v. Wainwright, 372 U. S. 335), to the assistance of counsel on direct appeal from judgments of conviction (Douglas v. California, 372 U. S. 353) and to the assistance of counsel on appeal when collaterally attacking such judgments by writ of error coramnobis (Lane v. Brown, 372 U. S. 477).
A similar result should follow in this case where, solely because of his indigency, the defendant was unable to retain a psychiatrist as a witness and thus properly litigate the issue of his competency. As a substantial question had arisen as to the question of the defendant’s competency, it was discriminatory not to have appointed a psychiatrist at public expense (Jacobs v. *189United States, 350 F. 2d 571, 573; see, also, Bradford v. United States, 413 F. 2d 467; Lee v. Habib, 424 F. 2d 891, 899 ; United States v. Schultz, 431 F. 2d 907, 911; United States v. Theriault, 440 F. 2d 713).
The failure to demand a hearing as to the defendant’s competency to stand trial was a result of indigency and not of a trial strategy (cf. People v. Baxter, 32 A D 2d 840). The defendant did not receive an advantageous plea for he pleaded guilty as indicted to the five counts of the indictment. I would therefore remand the case to the Criminal Term for a hearing as to the defendant’s competency to stand trial on August 2, 1960, the date of his plea of guilty.
Munder, Acting P. J., Latham and Christ, JJ., concur with Benjamin, J.; Shapiro, J., dissents and votes to remand the case to the Criminal Term for a hearing as to defendant’s competency to stand trial on August 2,1960, the date of his plea of guilty.
Judgment of the Supreme Court, Kings County, rendered December 11, 1969 on resentence, and order of the same court dated June 22, 1970, affirmed.
Section 662-a of the Code of Criminal Procedure provides, in pertinent part:
“ If either counsel for the defendant or the district attorney does not accept the findings of the psychiatrists and wishes to eontravert [sic] them, the court shall afford counsel for the defendant and the district attorney opportunity to do so before him.” The record herein clearly establishes that defense counsel did not accept the findings of the psychiatrist and wished to controvert them.