The evidence adduced with regard to the commission of the double homicide in this case is most graphic, and the dissent concedes that the proof of the performance by the defendant of the criminal acts alleged was established beyond a reasonable doubt.
There remains for discussion, however, a twofold problem with regard to the defendant; namely, was he insane at the time of the commission of the crime, and was he competent to stand trial?
As to the former claim of insanity at the time of the crime, we note that defendant refused to be examined by psychiatrists. He claimed that he was sane and that his defense of alibi was a complete defense to the crimes charged. He repeatedly stated that he understood the act of which he was accused and the consequences of that act.
Under these circumstances, the Trial Justice appropriately disallowed any medical testimony with regard to defendant’s insanity at the time of the commission of the crime (Matter of Lee v County Ct. of Erie County, 27 NY2d 432).
With regard to the second prong of defendant’s insanity— namely, his competency to stand trial—we find no reason to overturn the rulings of the Trial Justice.
Pursuant to CPL article 730, a pretrial hearing was held to determine whether defendant was an "incapacitated person”; i.e., was he able to understand the proceedings being conducted and also whether he was able to assist in his own defense (CPL 730.10, subd 1).
The caveat found in the psychiatric report that the defendant "might disorganize under the stress of incarceration and require psychiatric attention” does not vitiate the main findings . in the report that defendant was competent to stand trial.
*400The logic of the dissent in voting for a new trial for this defendant is marred by a fuzzing and merger of the two separate and distinct concepts of mental incapacity, one being the capacity of the defendant to know and appreciate the nature and consequences of his conduct or its wrongfulness, and the other being the competency of the defendant to understand the proceedings against him and his ability to assist in his own defense.
The only troublesome element during the trial which prompted the Trial Justice to direct a further psychiatric examination was whether defendant was able to assist in his own defense. Defendant, in fact, may not have assisted in his own defense to the extent that he disagreed with his own attorney’s theory of the case. However, this does not mean, nor does the record reveal, that defendant was mentally disoriented or that his trial was unfairly conducted.
Lastly, it must be noted that the alleged incapacity of juror No. 8 does not warrant reversal and remand for a new trial. When that juror’s comments were revealed to the court, a psychiatric examination was directed. The reporting doctor concluded that, though the juror suffered from hallucinations, he was nonetheless competent to make a judgment on the merits of the case presented to him in court.
Recently, a juror in attendance at a trial in the Federal District Court for the Southern District was found to have "hallucinatory tendencies, symptoms of possible psychosis, paranoia, and grandiosity, and in general an inability to appreciate reality without fantasizing.” Nonetheless, the Court of Appeals for the Second Circuit found this not to be sufficient grounds for reversal (Dioguardi v United States, 492 F2d 70, cert den 419 US 873).
In that case, Judge Lumbard stated (p 79): "Reluctance to inquire into the state of mind of any juror and into the conduct of the jurors during their deliberations rests on sound reasons. The rule against any inquiry whatever recognizes exceptions only where there is clear and incontrovertible evidence of incompetence shortly before or after jury service, clear evidence of some criminal act, or evidence of some 'objective fact’ of internal impropriety.” Similarly, in the case at bar, there has been insufficient shown to warrant reversal on the basis of the alleged incompetence of juror No. 8.
Accordingly, the judgment of the Supreme Court, Bronx County, rendered June 29, 1973, convicting the defendant *401after trial of two counts of murder and of possession of a weapon as a felony, should be affirmed.