I dissent and vote to affirm both judgments of conviction.
During the early morning hours of September 5, 1971 defendant opened a window of the bottom floor apartment of Anne Heeseman located at 88-59 Elderts Lane in Queens, reached in and took Heeseman’s pocketbook which had been on her dining room table. Later that morning, at 5:00 a.m., Police Officer John Hamberger, responding to a report of a prowler in the Elderts Lane area, stopped the defendant, who, after some questioning, pulled out a gun and attempted to shoot Officer Hamberger in the chest. Officer Hamberger and his partner arrested defendant and found in his possession property belonging to Heeseman.
After a hearing and pursuant to an order dated October 14, 1971, defendant was found to lack the capacity to understand the proceedings against him or to assist in his own defense. In an indictment filed December 23, 1971 defendant was charged, inter alia, with attempted murder and burglary in the second degree.
During this time defendant remained confined in various mental institutions. However, in February, 1972, defendant was mistakenly released and he returned home.
Subsequently, on June 17, 1972, defendant stabbed and killed Deborah Januszko in her home. At 5:00 a.m. on June 20, 1972 Detective Donald Palmer approached defendant on 170th Street in Queens and told him that the police were conducting a canvass in the area relative to the Januszko homicide. At midnight of the next day Detective Palmer returned to see defendant at his home.1 Defendant then admitted that he had attempted to shoot Officer Hamberger. Thereupon he was brought to the station house where he was questioned by Detective Lamardo. At said questioning on June 21, 1972, and on two subsequent occasions, namely, July 7 and 14, 1972, defendant re-enacted the Januszko homicide. On the latter two dates he not only re-enacted the Januszko homicide but three others as well. The July 7 and 14 re-enactments occurred in sessions held with the consent of his attorney. As a result of defendant’s admissions, four indictments were returned against him.
An arraignment on the various charges pending against *295defendant was held on April 10, 1973. A finding of competency was accepted and a hearing on that issue waived. Defendant entered pleas of not guilty and not guilty by reason of insanity. By notices of motion dated April 10, 1973 defense counsel moved to have a chromosome scan and evaluation performed on the defendant. By notices of motion dated May 7, 1973 defendant made omnibus motions, inter alia, seeking transcription and discovery of Grand Jury minutes, discovery and inspection of statements made by the defendant and any reports by experts. A suppression hearing was also requested.
While the record is unclear as to what occurred next, on October 18, 1974 the court received a report that the defendant was capable of standing trial. Defense counsel accepted this report. On October 21, 1974 trial commenced on the attempted murder and burglary charges stemming from the September 5, 1971 occurrence.
THE FIRST TRIAL
At the commencement of the trial, held before a jury, defense counsel at a sidebar conference told the Trial Judge the following: "It is the defendant’s position, and he wants this known for the record, that he believes that any act which has a bearing on his mental condition is part of that which should be brought to the attention of the jury, so that when a psychiatrist testifies concerning his opinion as to the man’s mental capacity, there is a foundation upon which to predicate it.”2
Defense counsel delivered an opening in which he detailed defendant’s prior confinement in mental institutions and the fact that defendant re-enacted four homicides of young women.
The trial continued and the People presented evidence which left little doubt of defendant’s complicity in the attempted murder and burglary. The defense then began its case with its first witness being the defendant.
Defendant testified that he had been committed to the Creedmoor State Hospital from 1962 to 1966. In regard to the morning of September 5, 1971, defendant denied that he had burglarized Heeseman’s house. He explained the fact that he was in possession of property obviously belonging to her by *296asserting that he had found it in the street. As to the charge that he had attempted to shoot Officer Hamberger, defendant conceded that he had a .22 caliber starting pistol in his back pocket at the time of arrest but he denied firing it, or even pointing it at Officer Hamberger. Defendant contended further that the gun introduced in evidence was not his. Upon further questioning defendant denied remembering the events which occurred on June 20, 1972 and June 21, 1972.
The following discussions then occurred between the court, the prosecutor and defense counsel:
"mr. gaudelli [the prosecutor]: I press my objection. It is obvious counsel is now testifying to facts that are not in evidence. It’s obvious defendant isn’t going to remember anything about what happened that day. In effect, [counsel] is now testifying. I submit to the Court, if he wants to testify, he should take the stand; because I believe he was there that day.
"[counsel]: No, I wasn’t; but I’ll be glad to testify.”
Counsel continued his examination of the defendant asking him if he shot five named people. The defendant stated that he had not. Defendant also stated that it would not help his recollection if he was told that he had stated on a prior occasion that he had committed those crimes.
Significantly, the prosecutor objected to this line of questioning, stating the following at a sidebar conference:
"I submit to the Court by allowing counsel to go into all these suspected crimes in the same area when there isn’t sufficient evidence * * * to indict is improper and prejudicial to the People’s case.3
"[counsel]: If I may respond, I’d like to say this, sir: Officer Lamardo had indicated to me, and I intend to put him on the stand to so testify, that the defendant has acknowledged to him having done these various things as part of a history of what the man is like, what his activity has been. I’m questioning him whether he did, in fact, do them and remembers that he did them, because this is part of a bizarre history of the *297individual, and I only have two or three more and then I’m coming to the actual murders that he detailed.”
Defense counsel continued the same line of questioning asking the defendant whether he committed nine different violent stabbings and shootings. In each case, upon defendant’s denial of involvement, his attorney asked him if it would help him remember if told that he had previously admitted his guilt. In each case the defendant responded that it would not.
The defendant concluded his testimony. The following then occurred at a sidebar conference requested by defense counsel:
"[counsel]: * * * I also want to indicate another problem I am contending with now, so this record will reflect some of defense counsel’s thinking on the matter.
"Yesterday, at one point during my questioning of defendant, the District Attorney commented that '[counsel] was there. If he wants to testify, why doesn’t he take the stand.’ The fact of the matter is I was present during what I regard as bizarre behavior, and I could very well testify to what I saw, without professing to be a medical doctor or a psychiatrist. I am somewhat loath to do that because I realize it is not the usual procedure of counsel. Yet, in the absence of Lomardo [sic] and the light of the comment by the District Attorney, which may very well have some effect upon the jurors’ thinking about why, if I saw it, I do not tell about what I saw. I am very much inclined to possibly detail what I did see. I was wondering whether, perhaps, this might be an appropriate time then to take a luncheon recess, let me evaluate further whether LaBurt will be here and whether I will proceed without him by testifying myself. I also want to indicate to both Mr. Gaudelli and the Court that if I do testify, I will—if I do testify, I will endeavor to be completely objective and just detail what I visually saw and heard, without seeking to characterize or enact because I am aware of the fact that to me it was a very dramatic thing, and I might have the temptation to, but I recognize my position as an officer of the court.
"me. gaudelli: I think you could conduct yourself properly. I think we have faith in your objectivity.”
Ultimately, counsel, who had been admitted to the New York Bar in 1936, testified that at meetings with defendant on July 7 and 14, 1972, defendant re-enacted various murders while in a trance-like state.
*298Following defense counsel’s testimony the defense psychiatrist, Dr. Harry La Burt, took the stand. He testified that defendant did not have substantial capacity to appreciate the nature or consequence of his act. Testimony was also elicited from Dr. La Burt regarding his view of someone who had reenacted murders as described in the testimony of defense counsel.
To counter this testimony Dr. Schwartz testified for the People that on September 5, 1971 the defendant had the mental capacity to know and appreciate the nature and wrongfulness of his conduct; that he was not suffering from any mental disease or defect; and that he was not a schizophrenic.
On cross-examination by defense counsel, Dr. Schwartz conceded that he had not seen defendant personally during September or October, 1971 and that his staff members who had, diagnosed defendant as suffering from a schizophrenic reaction, chronic undifferentiated.
Both sides rested and counsel moved for a directed verdict of not guilty by reason of insanity. The motion was denied.
Counsel thereupon delivered a summation in which he stated the following: "Well, of course the defendant, and you heard at the outset, is under no obligation to put in a defense as to the charges, but he took the witness stand and he told you his version of that morning. I don’t take either side or vouch for his position either way. You will have to decide what the facts were of that morning. I am going to speak about what he told you now from another aspect, the aspect of his defense of insanity, and whether or not the person that you saw sitting on that witness stand the other day, who sits here in this courtroom today did do it or whether the man who got up on that stand and said the things to you that he did only shows by his testimony how sick he is.”
Counsel then argued as follows in support of the defendant’s claim that he did not commit the crimes:
"I direct your attention, for whatever value you see in it, to certain aspects of my cross examination and the testimony elicited from the two police officers. You have a gun. It has flat surfaces on it. It has solid surfaces on it. If you look, you will be able to see there still is, as a matter of fact, the fingerprints that I impressed on it with my thumb at that time when I showed it to the witness on the witness stand, and since the testimony of the police officers was to be, and *299since their allegation is, that this man had his gun and he allegedly said right off the bat that he didn’t have a gun, how easy would it have been, in the light of our current scientific knowledge, to take the fingerprints. Certainly, this defendant handled it one time or another and opened it to put cartridges in. Wouldn’t he have somewheres on it, on one of these flat surfaces, fingerprints that would tie him completely to this weapon? Even this holster, if you want to close this holster, you must necessarily put your finger on the button and press, and if you do that and then you look at it, there is what is known as a latent fingerprint.
"But, they’re not here. And talking about some of the things that the defendant is alleged to have said to the police on that morning of September the 5, 1971, it seems a little strange that no where in the officer’s memorandum book and no where in any record that he made at any time except within his mind, as he testified here on the stand, three years later. No where is there any reference to any of these conversations that he allegedly had with the defendant, and it also seems strange to me if, in fact, the police had taken the gun from this man on that morning, after he alleged to have pointed it point blank at someone and pulled the trigger, wouldn’t there have been some conversation with him in the police car, 'What the hell are you trying to do, pointing a gun at me, trying to kill me,’ something of that sort. Wouldn’t there be some talk about it? But neither officer, at any time, said anything about there having been such a conversation. That is as far as I’m going on the question of telling you he had no part of it, that he is not guilty of these three specific counts that you are going to have to decide.”
Counsel next proceeded to discuss the aspect of the defense dealing with insanity. He stated the following:
"Our position is: Here is a person who has been sick just about all his life * * * There was testimony about action on the part of this defendant at times other than September 5, 1971. You have a right to consider them.
"mr. gaudelli: Objection.
"the court: The only way they could be considered would be on the question of credibility. That’s all.
"[counsel]: I take exception to that, sir. I am about to suggest to them that they have a right to consider these acts on the question of his mental condition.
*300"mr. gaudelli: Withdrawn.
"the court: All right.”
Defense counsel continued by discussing the evidence of defendant’s insanity. In support of this claim he pointed to his own testimony which, in an obvious attempt to buttress its credibility, he termed objective.
The summations were completed and the jury charged. On the issue of credibility the Judge stated the following:
"When a defendant takes the stand he becomes a witness in his own behalf, his credibility, like any other witness, may be impeached by showing any criminal acts of his life occurring after he became sixteen years of age which may affect his character and tend to show that he is not worthy of belief. You will recall the testimony of the defendants [sic] as to acts committed while in Creedmore [sic] Hospital. That simply means that you may consider such facts, in arriving at a determination as to whether the defendant is presently telling the truth. The fact that he may have been guilty of such prior conduct does not necessarily mean that he is not to be believed at this time by you. It is for you to decide whether his testimony is worthy of belief.
"However, you will limit yourselves to considering such evidence on the question of credibility only. It is not received and it must not be considered by you as proving, indicating, or suggesting that because the defendant has at some time in the past been guilty of such conduct, he is a person who is disposed to do vicious things and, therefore, likely to have committed the crime of which he is accused in this case.”
After the jury completed its deliberations it returned a verdict finding the defendant guilty of attempted murder, burglary in the second degree and possession of weapons, etc., as a felony.
THE SECOND TRIAL
Proceedings regarding the Januszko homicide as well as the other murders defendant re-enacted commenced on November 7, 1974 with a Huntley hearing.
Detective Lamardo testified for the People that on June 21, 1972 he gave the defendant his Miranda rights after which he interrogated him. Defendant then engaged in behavior which appeared to re-enact the Januszko homicide three times. Defendant was also returned to the scene of the crime where there was a further re-enactment of the murder. Lamardo *301again met with the defendant on July 7 and 14, in the presence of his counsel. On each of those occasions defendant appeared to re-enact the Januszko homicide as well as three others. Lamardo further testified that there was no agreement not to use the evidence developed in this way against the defendant.
Dr. Schwartz testified for the People that, as to the July 14 interrogation, the defendant made his statements while in a self-induced trance and that statements made while in such a state would be voluntary.
The People rested and defense counsel took the stand. The court expressed the view that defense counsel would not be representing his client properly if he did not take the stand.
Counsel testified that he met with the defendant in Kings County Hospital on June 22, 1972. Defendant appeared to be in a stupor and essentially responded only with grunts. On July 5, 1972 he met with Lamardo and Assistant District Attorney Nicolisi who expressed the view that if defendant was placed in a trance-like state, he might be able to solve other cases. Also they each repeatedly indicated that they believed defendant to be so insane that he could not possibly be tried. Counsel and Nicolosi had a definite agreement that the July 7, 1972 interrogation would not be used against the defendant in connection with any prosecution.
On cross-examination defense counsel conceded that he believed that the confessions to the crimes and the manner in which they were given would facilitate a defense of not guilty by reason of insanity which was his only true legal defense. Counsel also explained that while he was acting as a friend of the court, it was in the context of an agreement that the defendant would not be prosecuted.4
After both sides rested on the Huntley hearing the People argued that defendant’s statements on July 7 and 14, 1972 should not be suppressed because they were made in the presence of counsel. The court responded as follows: "the court: Mr. Gaudelli, you evidently missed for three days what the Court’s concerned with * * * never mind about the hypnotic state; never mind about the claim of insanity because a competent doctor testified as to the sanity of the defendant. But I have a lawyer, an experienced lawyer, that appears in *302the office of the prosecution and he makes allegations in my court under oath under which he permitted his client to be interrogated and during the entire interrogation that went on for two days, never once stopped that man from testifying, which leads me to believe that this man had the right to rely on the word of your office [that there would be no prosecution].”
In a memorandum dated November 12, 1974, Criminal Term (Agresta, J.), held that defendant’s statements about the Januszko homicide were voluntarily made and that the defendant was competent at the time they were made. Accordingly, it refused to suppress those statements. As to the defendant’s admissions about the three other homicides made on July 7 and 14, the court suppressed them. After referring to defense counsel as an "expert in criminal matters” the court held that he had relied upon his understanding of the arrangement made with the People.
On November 26, 1974 the nonjury trial on the Januszko homicide began. Counsel presented an opening in which he declared that it was the defense position that defendant did not commit the crime and that in any event he was not guilty by reason of insanity.
The People’s case rested on Lamardo’s testimony of his June 21, 1972 interrogation of the defendant during which the Januszko homicide was re-enacted. Also, a tape recording of the June 21, 1972 session was introduced. Defendant’s counsel in cross-examining Lamardo about the June 21 interrogation, sought to establish that the defendant was not competent at that time and that his statements were not voluntarily made.
The People rested and the defendant took the stand in his own behalf testifying about his prior institutionalization. He denied killing Januszko and stated that he did not remember doing the things Lamardo said he did when he was brought to the station house on June 21, 1972.
On cross-examination defendant showed sufficient understanding of the proceedings so as to refuse to answer a question about his conversations with a psychiatrist at Creedmoor on the ground that the question did not refer to his case.
After the defendant completed his testimony defense counsel took the stand. Counsel indicated that he had discussed with the defendant what he was going to do. He testified briefly and in a general way that on July 7, 1972 the defen*303dant with a "vacant stare” had re-enacted three or four homicides.
Following completion of counsel’s testimony, Dr. La Burt testified for the defense and Dr. Schwartz for the People on the issue of defendant’s sanity. Their testimony was similar to that presented at the first trial, except that Dr. Schwartz, under extensive cross-examination, conceded that he had at one point diagnosed defendant as "probably hysterical personality dissociative type” or multiple personality.
Both sides rested and defense counsel delivered a summation in which he contended that defendant’s statements on June 21, 1972 were involuntary in that the defendant was not conscious of what he was doing. Counsel argued further that there was a lack of proof of defendant’s commission of the Januszko homicide and that in any event there should be an acquittal by reason of insanity.
Criminal Term (Balbach, J.), in a decision stated December 18, 1974 (People v Baldi, 80 Misc 2d 118), held that testimony regarding defendant’s statements and actions on June 21, 1972 were admissible in evidence. The court, in discussing the re-enactments conducted by the defendant in his June 21 meeting with Lamardo, inter alia, stated (p 125):
"As regards the first interview in which the defendant acknowledged cutting a girl and making gestures relating to an imaginary box, this court finds these statements to be voluntary and, consequently, to possess high probative value. The facts seem to indicate that the defendant was aware of what he was saying and does not appear to have entered a trance at this point.
"As for the second interview, in which the defendant gave brief answers, and the third interview, in which the defendant gave taped answers, this court finds that the defendant was apparently in some form of trance for at least a portion of this time and concludes that the probative value of these statements and acts is minimal.
"The final interview, dealing with the visit to the site of the crime, appears to have considerable probative value. On this visit, the defendant appears to have been aware of what was transpiring. He spoke to the detective and even held on to his hand. Further, when the squad car reached the area, the defendant got out all alone and went to the victim’s home and re-enacted scenes which indicate a guilty knowledge. The facts indicate that the defendant was, for some period, in a state of *304trance during the later enactment, but it would appear that he enacted his acts through his own knowledge and was not susceptible to outside influences. Hence, under the trustworthiness test laid down in People v Schompert ([19 NY2d 300] supra) these admissions by acts would be reliable. Based upon the above reasons, this court concludes that the statements and actions of the defendant are admissible and have the probative value indicated.”
As to the sanity issue the court found the People’s evidence persuasive and, accordingly, defendant was found guilty of the murder of Januszko.
THE MAJORITY’S CONTENTIONS
Stripped to its essentials the majority contends: (1) a new and more flexible standard for judging ineffectiveness of counsel has arisen under which the fact that an attorney acted as he did for strategic reasons is not determinative; (2) counsel should not have testified; (3) counsel in his testimony should not have contradicted defendant’s denials of the commission or re-enactments of the various homicides; (4) counsel should not have examined defendant about the killing or maiming of 14 women; (5) counsel should have challenged the findings that defendant was competent to stand trial; (6) counsel should have objected to the court’s jury charge that the evidence of the uncharged crimes may be considered only on the question of defendant’s credibility; (7) counsel in his summation to the jury should not have adopted an objective stance by stating that he does not vouch for the defendant; (8) counsel should not have acquiesced to the July 7 and 14 interrogations of the defendant; and (9) counsel should have produced a psychiatrist to testify at the suppression hearing held in the Januszko case.
Close analysis of the first four of the above points shows that they are matters which relate to strategy, it being the majority’s view that counsel should have realized that the affirmative actions taken on behalf of the defense would weaken rather than strengthen it. The remaining points raised are of a type traditionally. raised by defendants who contend that their trial counsel was inadequate. These points involve actions which a defendant believes his attorney should have taken but failed to.
In my view the majority has engaged in a selective recital of the transcript in reaching its conclusions. Careful examination *305of the record shows that the faults found in defense counsel’s representation are unwarranted and that, in any event, the matters adverted to are not so serious as to constitute incompetence. Essentially the representation afforded the defendant is being found ineffective because a novel and daring, even if questionable, strategy was used in an attempt to establish the defense of insanity. The central fact remains that the defense of insanity was vigorously presented and that the strategy used to present it cannot be termed unreasonable. Moreover, there is an inherent lack of logic in the position adopted by the majority since it concedes that a close issue was presented at the trials on the issue of insanity. The question then presents itself as to how ineffective counsel was if he succeeded in making defendant’s sanity a close issue.
I. THE STANDARDS FOR JUDGING INCOMPETENCE OF AN ATTORNEY AND COUNSEL’S DEFENSE STRATEGY.
It is the majority’s contention that under current standards for judging competence of an attorney the representation rendered here must be deemed inadequate. The majority believes that counsel’s testimony and his bringing to the court’s attention other crimes with which defendant was involved irrevocably prejudiced the case against the defendant. I agree that the standard for judging incompetence of counsel is no longer simply whether the legal representation afforded a defendant rendered the trial a farce and mockery of justice.5 While the majority expounds on the issue of what the standard is for judging incompetence of counsel, this court, in People v Jackson (74 AD2d 585), unmistakenly indicated that in determining adequacy of counsel the question is whether he has demonstrated reasonable competence in defense of his client.6 In any event, where the incidents of alleged incompetence involve matters of strategy, reversal on the ground that a defendant was denied the effective assistance of counsel should be rare indeed.
An examination of the case at bar shows that the evidence available to and presented by the People overwhelmingly established defendant’s guilt of the crimes with which he was charged. The only hope for defendant lay in verdicts of not *306guilty by reason of insanity. Counsel, obviously aware of this, brought to the attention of the jury in the first trial and the Judge in the second the fact that defendant had been involved in numerous crimes other than those for which he was then on trial and that defendant had re-enacted some of these crimes in a bizarre manner. Clearly, counsel hoped that this testimony would buttress the expert psychiatric testimony of insanity that he was going to present. Moreover, the record supports the view that the defendant himself wanted the evidence of the other crimes to come out at the trials.7 The situation faced, therefore, is one in which an attorney made a calculated tactical decision after consultation with his client. The decision certainly seems reasonable even if questionable since evidence that the defendant had killed frequently and that he had in a bizarre manner re-enacted some of these killings could strengthen the view that defendant was totally insane. Oddly enough the majority concedes that counsel created a close case on the issue of insanity. The impression therefore created is that the basis for finding incompetence lies in counsel’s failure to win the case. In any event, even if there were errors in the representation afforded defendant, analysis of the leading cases on the issue support the view that since they were part of a reasonable strategy there should be an affirmance.
In People v Brown (7 NY2d 359, cert den 365 US 821), a case decided under the rule providing that legal representation was ineffective only if it rendered the trial a farce and mockery of justice, the court clearly stated that errors of judgment or of tactics by a defense attorney during trial would not provide a basis upon which to upset a conviction.
McMann v Richardson (397 US 759, 770), which the majority terms the origin of the rule of judging the effectiveness of an attorney by a standard of reasonable competence, in discussing whether an attorney properly advised his client to waive a trial states: "Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court’s judgment might be on given facts.” Significantly, the court indicated that a defendant assumes *307the risk of ordinary error in either his or his attorney’s assessment of the law and facts.
While in People v Bennett (29 NY2d 462) the court refused to define with precision what constitutes ineffective legal representation it did, nevertheless, find ineffectiveness in that the attorney had rendered the trial a farce and mockery of justice. There the sole possible defense was insanity. The court, in finding ineffectiveness, pointed to the total lack of preparation of defense counsel including such factors as counsel’s inability to phrase a hypothetical question for the psychiatrist and placing psychiatrists on the stand who testified that defendant was sane.
In People v Droz (39 NY2d 457, 463) the court did not refer to the farce and mockery standard but instead, in reversing, stated that "we cannot say that the representation defendant received in this case was adequate or effective in any meaningful sense of the words.” The court pointed to the following inadequacies of counsel (pp 462-463):
"Here it is evident that counsel made little or no effort to prepare the case for trial. He did not consult with his client until two months after his appointment, and then only on the first day of the initial trial. In addition, apart from mailing two letters, he made no attempt to contact potential witnesses to determine whether they might have any evidence helpful to the defense. Apparently he did not even study the record. Thus, he was not aware that the defendant had previously pleaded guilty to the charges alleged in the last three counts of the indictment, and consequently, very damaging testimony regarding the cache of drugs found in the defendant’s apartment was admitted at trial, when it properly should have been excluded. And if counsel was familiar with the fact that defendant had also pleaded guilty, and later withdrawn the plea to the remaining counts, it is difficult to understand why he was so instrumental in bringing this highly prejudicial matter to the attention of the jury.
"This particular error was later compounded when counsel advised the defendant that a mistrial would accomplish nothing since the information regarding the withdrawn plea would come out on cross-examination, in any event, once he took the stand. That, of course, is not correct since it is well settled that a guilty plea, once withdrawn, 'is out of the case forever and for all purposes’ (People v Spitaleri, 9 NY2d 168, 173). Finally we note that counsel made no effort to obtain the *308prior testimony of Detective McGuckin, although use of such testimony on cross-examination is now accepted as one of the fundamental methods for 'impeaching the prosecutor’s witness’ (People v Rosario [9 NY2d 286], supra, at p 290; see, also, People v LaBree, [34 NY2d 257], supra, at p 259), particularly the primary witness for the prosecution.”
Of great significance to the instant appeal is People v Garrow (51 AD2d 814). There defendant admitted at his trial that he had caused a death by stabbing. Defendant, in his testimony, also confessed to three other murders and numerous rapes. Defendant relied on a defense of insanity. On appeal he contended that he was denied the effective assistance of counsel. The Appellate Division, Third Department, in affirming the conviction stated: "[W]hile the strategy of putting defendant on the stand might be questioned by some, we cannot say that it was unreasonable to expect that he would buttress his defense of insanity by his testimony as to his past crimes and bizarre behavior.”8
Any inquiry in this jurisdiction on the effectiveness of counsel must of course focus on People v Aiken (45 NY2d 394). In Aiken the defendant absented himself from the trial. Nevertheless, defense counsel’s motion for a mistrial was denied. Defendant, inter alia, contended that he was denied the effective assistance of counsel because his attorney (1) waived an opening and closing statement and (2) failed to cross-examine witnesses called either by the People or the codefendant.
The court noted the mockery of justice and more stringent reasonable competence standards for judging effectiveness of legal representation. While it did not expressly adopt the latter standard, it did indicate that competence of counsel is to be judged by a more flexible standard than mockery of justice.9 In any event defendant was found not to have been *309denied effective representation under either standard. The reasons for the conclusion that representation had been effective are of particular importance here. The court called the waiver of an opening and closing as well as the failure to cross-examine witnesses a matter of strategy. In this regard the following was stated (p 399): "[W]e emphasize that a defendant who absents himself from trial may not succeed on appeal by raising counsel’s purported ineffectiveness where counsel affirmatively, as a matter of trial strategy, sought to obstruct the trial of his client. * * * Instead, we view counsel’s conduct as indicative of a conscious strategic decision designed to pressure the trial court into declaring a mistrial. As such, the wisdom of counsel’s decision can provide no basis for appellant’s claim that he was denied effective counsel.” (Emphasis supplied.)
The overpowering effect of the fact that an attorney acted for strategic reasons on a claim that counsel was incompetent is again indicated in the more recent case of People v Bell (48 NY2d 933, 934-935), where the court found that there was no question that there was a lack of effective assistance of counsel, stating: "His retained attorney not only failed to request any pretrial hearings, conduct any voir dire of jurors or make any opening statement, but also asserted as a defense in this narcotics prosecution 'trafficking’ without ever coherently indicating what the defense consisted of, by cross-examination of prosecution witnesses elicited incriminating hearsay evidence against his client, joined in a motion by codefendant Bell made at the end of the People’s case for dismissal of the charges against Bell on the ground that his client, Pritchett, was the only one involved, but nevertheless sought to establish an agency defense, as to which he requested an instruc*310tion to the jury, with Bell as the principal, put Pritchett on the stand and, apparently in relation to the trafficking defense elicited a confession from Pritchett as to his part in the selling of the drugs, made a largely irrelevant closing argument, and to cap it off made no sentencing statement on behalf of Pritchett at all. Such a litany establishes beyond peradventure that what is here involved is not a misguided though reasonably plausible strategy decision but clear ineffectiveness of counsel; why else proffer an unrecognizable defense or join in a motion that only his own client was involved(Emphasis supplied.)
On the other hand, in People v De Mauro (48 NY2d 892) an attorney failed to make a pretrial motion to suppress five statements and delayed in requesting a mistrial after evidence of the defendant’s unrelated incarceration had been introduced. In affirming the court, inter alia, stated (p 894): "These were no more than matters of trial tactics and errors of judgment at most.”
Finally, we ourselves, in addressing the issue of incompetence of counsel, have recently pointed to the central effect of strategy. In People v Jackson (74 AD2d 585, supra) the defendant was charged with an armed robbery at a fast-food restaurant. Testimony presented at a Wade hearing indicated that shortly after the crime several of the restaurant’s employees were shown an array of photographs. Defendant’s photograph was not included in this array and the witnesses made no identification. Later, an anonymous tip was received at the restaurant implicating the defendant in the robbery. When this information was relayed to the police, a second photographic array was assembled which included defendant’s photograph. Two of the employees then selected the defendant’s photograph and, at the Wade hearing, identified him as a perpetrator of the crime. We described defense counsel’s trial strategy and analyzed it as follows (p 586): "At the trial, counsel planned to offer an alibi defense. His witnesses, however, were vulnerable to impeachment either because of a close family relationship to the defendant or because of an unsavory personal background. Consequently, counsel did not rely solely on the alibi testimony but attempted to challenge the identification evidence offered by the People. He succeeded in demonstrating certain discrepancies between the description of the perpetrator initially given to the police and the actual appearance of the defendant. He then chose to press his *311attack by exploring the photograph identification made by the prosecution’s witnesses. He established that the first array, from which no selection was made, was comprised of 150 photographs, while the second, compiled after police attention had been drawn to the defendant, contained only six. Counsel’s apparent purpose was to persuade the jury that the identification testimony at trial was not the product of the witnesses’ independent recollection but of subtle police suggestion. In effect, counsel asked the jury to infer that the detectives had sought to solve the case by severely limiting the number of photographs in the second array and by then focusing the witnesses’ attention upon the defendant, with whom the police were familiar and about whom they had received the anonymous tip. Counsel thereupon produced the individual who had provided the tip to testify that he had done so in anger following an altercation with the defendant. On the witness stand, he retracted the accusation and supported the defendant’s alibi defense. As executed at trial, counsel’s strategy was somewhat unorthodox and apparently unsuccessful. Nevertheless, it is not the law that, with the beneñt of hindsight, an attorney will be judged incompetent whenever he unsuccessfully employs an unusual or innovative approach at trial. As long as counsel demonstrates reasonable competence, there can be no claim of ineffective assistance.” (Emphasis supplied.)
After discussing People v Bell (48 NY2d 933, supra) and People v De Mauro (48 NY2d 892, supra) we concluded (p 587): "Both De Mauro and Bell are helpful here; the first because it recognizes that unsuccessful strategy decisions do not spell out ineffective assistance, and the second because it stands in such stark contrast to the record presently before us. In the case at bar, counsel duly requested a Wade hearing. He vigorously cross-examined the prosecution witnesses in accordance with his strategy and theory of the case. Demonstrating adequate investigation and preparation, he planned and competently presented a four-witness alibi defense * * * Lastly, he delivered a summation which, although no model of clarity, nonetheless brought home to the jury the essential position of the defense that the identification was suspect while the alibi was credible. Significantly, at no point did the defendant suggest that he was dissatisfied with the quality of representation his retained counsel was providing * * * In our view, then, the record in this case viewed as a whole demonstrates reasonably *312plausible strategy decisions and trial tactics not amounting to ineffective assistance.”
The pattern that emerges is that if the alleged ineffectiveness of counsel involves a matter of strategy reversal will not be warranted so long as the strategy is reasonably plausible. In my view the determination of counsel here to bring to the attention of the court through various means including his own testimony defendant’s violent past and bizarre behavior cannot be deemed an unreasonable and implausible strategy. Its purpose was clear and the defense presented certainly was well prepared, vigorous and recognizable. At no point did defendant object to his counsel’s tactics. It is of no small significance that the People objected, on the grounds of prejudice, to counsel’s examination of defendant about the killing and maiming of 14 women.10
Regarding the fact that counsel took the stand himself, the majority correctly concedes that this does not by itself establish ineffectiveness of counsel. Certainly, where counsel’s purpose is to testify in favor of the defendant and apparently with his consent in furtherance of the trial strategy there is no denial of the right to the effective assistance of counsel (cf. United States v Hall, 346 F2d 875, 882).
Accordingly, the affirmative steps taken by counsel, an experienced criminal defense attorney, in support of the defense of insanity do not support the majority’s conclusion that defendant was denied the right to the effective assistance of counsel.
II. counsel’s failure to challenge the finding that defendant WAS COMPETENT TO STAND TRIAL
Under CPL article 730 a defendant who as a result of mental disease or defect lacks capacity at the time of trial to understand the proceedings against him or to assist in his defense is deemed incapacitated and unfit to proceed to trial. The Legislature, in enacting this provision, had in mind "the situation where the defendant, because of a current inability to comprehend * * * cannot with a modicum of intelligence assist counsel” (People v Francabandera, 33 NY2d 429, 435-436).
At the sentence proceeding held on November 25, 1974 in *313regard to the first trial, the following was stated by counsel and the court:
"[counsel]: Strangely enough, as time has progressed and while this defendant has been in custody, it appears that his condition has vastly improved so much so that this man who, at the age of 33, had never learned to read or write has now, while in custody, developed both of those abilities * * * He actually has been given a degree of authority in that he counts the silverware for the warden * * *
"[the court]: * * * I agree with what counsel has said, that there is obviously a change in the defendant from the first stage that I saw him. I suppose that that would be, in the words of the psychiatrist, a period of remission.”
As to the trials themselves, defendant testified at both of them. He rationally and intelligently denied involvement in the crimes charged. At the second trial he showed sufficient alertness so as to refuse to answer a question on cross-examination on the ground that it did not refer to his case.
What is apparent beyond peradventure is that defendant was fit to proceed at both trials and that counsel knew that lack of fitness could not be established. Nevertheless, counsel’s failure to contest defendant’s competency to stand trial is adduced as evidence of counsel’s incompetency. I pose the following question to the majority in response: Is an attorney’s representation of a defendant to be deemed ineffective because the attorney refuses to take obviously useless steps in defense of his client?11
III. counsel’s summation and the charge to the jury
The majority is of the view that the defense summation is lacking because in it counsel declared that he did not "vouch for [defendant’s] position.” I have earlier set forth a large portion of the summation so as to indicate the innocuous nature of this comment. Examined in its context the record shows that immediately after this comment and notwithstanding the fact that counsel’s position was that defendant was insane, counsel pointed to weaknesses in the People’s proof of defendant’s involvement in the crime. In view of the defense being presented by counsel, his ability to present a cogent argument in support of the defendant’s position that he did not commit the crime (the lack of fingerprints and the lack of *314a memorandum of defendant’s statements) hardly presents a basis upon which his competence can be questioned.
In regard to the charge, the majority contends that counsel was remiss in not objecting to the instruction that the jury consider defendant’s prior criminal behavior only as to his credibility. What the majority disregards is that this portion of the charge expressly related to defendant’s testimony that he did not commit the crime (see the relevant portion of the charge, supra, p 300).12 Not only was the charge not objectionable but it correctly reflected the law. The jury in determining whether or not to believe defendant’s testimony that he did not commit the crime could properly consider the evidence of his prior criminal activity only for purposes of weighing his credibility and not as proof that he committed the subject crimes (see People v Jones, 71 AD2d 981; People v Lo Primo, 69 AD2d 890; People v Peltak, 54 AD2d 1051, revd on other grounds 45 NY2d 905).
Only later in the charge did the jury receive instruction on the insanity defense. On that defense the jury was instructed as follows: "But when there appears in a particular case any evidence tending to prove a mental infirmity and thus tending to overthrow the presumption of sanity, then the People are required to undertake the burden of going forward * * * The purpose of expert testimony is to aid you in your deliberation as to the particular subject concerning which expert testimony is admissible. But such testimony is merely a guide to you in your deliberation of the facts.”
There is nothing within this instruction which prevented the jury from considering defendant’s prior acts on the issue of his sanity.13 Accordingly, there was nothing for counsel to object to and there was no need for him to request any additional instruction.
IV. DEFENSE COUNSEL’S CONSENT TO THE JULY 7 AND 14 INTERROGATIONS OF THE DEFENDANT.
Much is made of the fact that counsel turned the defendant over to the People on two occasions, July 7 and 14, during *315which he in effect confessed to three homicides in addition to the Januszko one. The short answer to this is that Criminal Term (Agresta, J.) suppressed the confessions on the ground that there was an agreement between defense counsel and the People that there would be no prosecution for those crimes.14 An attorney who makes an arrangement which frees his client from prosecution for three murders can hardly be termed ineffective.15
V. DEFENSE COUNSEL’S FAILURE TO PRESENT PSYCHIATRIC TESTIMONY IN CONNECTION WITH THE HUNTLEY HEARING HELD FOR THE JANUSZKO HOMICIDE.
Counsel’s conduct of the second trial is criticized because he failed to introduce psychiatric testimony to buttress the contention that defendant’s statements made on June 21, 1972 to Detective Lamardo were involuntary on the ground of his incompetency and insanity. The point is also made that had these statements been suppressed there would be no case against the defendant.
It is of course true that mental illness will mandate suppression of a defendant’s confession unless the People prove beyond a reasonable doubt that it was made as a result of a rational and meaningful act of volition (Blackburn v Alabama, 361 US 199; People v Byrne, 66 AD2d 963, 964; People v Howard, 27 AD2d 796). However the People’s burden is not as heavy as it might at first appear to be since, in People v Shompert (19 NY2d 300, involving an intoxicated defendant), the court stated that a confession will be inadmissible for lack of volitional competency only if the defendant is unable to understand the meaning of his statements.
It must at the outset be recognized that the majority ignores the fact that there is no basis upon which the physical evidence (knives) seized from the defendant could be suppressed. Furthermore, there is no basis upon which all of defendant’s statements on June 21, 1972 could be suppressed. *316It is clear beyond cavil that defendant’s initial comments to detective Lamardo were voluntarily made while defendant seemed very much aware of his situation. I refer especially to the fact that defendant, at the beginning of his interrogation by Lamardo, after being shown a knife and asked if he heard about the girl that was hurt in Jamaica (obviously alluding to the Januszko homicide) stated: "I think I hurt a girl * * * I cut her.” This comment was made before defendant began his bizarre trance-like re-enactment of the Januszko homicide. As to the re-enactments it is not entirely clear that it was incumbent upon counsel to present psychiatric proof of incompetence. It apparently was counsel’s position that defendant’s demeanor during the re-enactments on June 21 and July 7 and 14, 1972 was such that it was clear that defendant was incompetent to voluntarily make any statement. Evidence to that effect was certainly presented. As to the comment of the hearing Judge that "never mind about the claim of insanity because a competent doctor testified as to the sanity of the defendant”, the majority has regrettably taken it out of context. The comment, read in context, shows that it was directed toward the issue of whether there was an agreement with the People not to prosecute.
It must also be pointed out, in any evaluation of counsel’s effectiveness, that he did succeed in suppressing the July 7 and 14 statements apparently on the basis that the People had agreed not to use those statements against defendant.
Moreover, and most significantly, even if counsel’s failure to call a psychiatrist to testify about the June 21, 1972 statements were to be deemed indefensible, it does not follow that such failure supports a finding that counsel was ineffective.
Counsel raised the issue of the voluntariness of defendant’s June 21, 1972 statements at the trial itself, at which there was expert psychiatric testimony. Nevertheless, Criminal Term found, after addressing the issue in depth (People v Baldi, 80 Misc 2d 118, supra), that defendant’s June 21, 1972 statements had been voluntarily made. This fact establishes beyond a reasonable doubt that counsel’s error was harmless (see Chapman v California, 386 US 18, reh den 386 US 987; People v Almestica, 42 NY2d 222; People v Crimmins, 36 NY2d 230). This conclusion is not weakened because it is based upon the findings of the fact finder at the trial. As previously indicated the fact finder was a Judge without a jury. While a jury is deemed incapable of separating factors *317relating to the voluntariness of a confession from those bearing on guilt or innocence, that is not true of a Judge who may properly preside over a pretrial hearing as well as the trial itself (Stephens v LeFevre, 467 F Supp 1026, 1029-1030; People v Brown, 24 NY2d 168; People v Lombardi, 76 AD2d 891 [decided herewith]). Therefore, Criminal Term’s determination that defendant’s June 21 statements to Lamardo were voluntary established beyond a reasonable doubt that any misfeasance by counsel in failing to call a psychiatrist at the Huntley hearing was harmless.
Stated otherwise and even without reliance on the harmless error doctrine (cf. Cuyler v Sullivan, 446 US 335; People v Felder, 47 NY2d 287; People v Macerola, 47 NY2d 257), any misfeasance in counsel’s conduct of the Huntley hearing was obviated by his raising the issue of voluntariness at the trial itself at which he did present psychiatric testimony.
CONCLUSION
The judgments appealed from should be affirmed. Unfortunately the majority by its reversals is tendering an invitation to almost all defendants to raise the issue of ineffectiveness of counsel and announcing to members of the defense trial bar that if they wish to prevent having their representation termed ineffective they would be well advised to avoid any novel or daring strategy moves on behalf of their clients.
Cohalan, J. (dissenting).I commence this brief dissent by stating what the majority appears to concede, namely, that Baldi’s guilt as to both indictments was established beyond a reasonable doubt, and overwhelmingly.
His trial court assigned attorney is a man with four decades of experience. He is acknowledged by the Bar to be an expert in the field of criminal law, especially in trial work.
In the two cases before us, he attempted to show at the trial level, albeit unsuccessfully, that in the vernacular of the streets his client was "as nutty as a fruitcake.”
As we know, his unconventional defense did not prevail in either the jury or the nonjury case. However, it now appears that even though he is no longer involved, his tactics will have proven to be successful on this appeal, inasmuch as the majority is remanding for new trials. If every time an unusual defense proves unavailing a defendant is to be granted a new trial on the ground of incompetent or ineffective representa*318tion, then the courts will be deluged with motions and appeals. Already the tide is threatening to engulf us. Therefore, if an attorney with 40 years of successful practice is declared, even on an ad hoc basis, to be ineffective as an advocate, defendants found guilty after trial will declare open season on their hapless attorneys.
In the factual circumstances of this consolidated appeal, I would affirm.
Hopkins, J. P., and Titone, J., concur with Lazer, J.; Martuscello, J., dissents and votes to affirm the judgments with an opinion, in which Cohalan, J., concurs; Cohalan, J., dissents and votes to affirm the judgments with a separate opinion, in which Martuscello, J., concurs.
Two judgments of the Supreme Court, Queens County, rendered November 25, 1974 and January 16, 1975, respectively, reversed, on the law, and new trials ordered.
. The police returned because they could not satisfactorily verify defendant’s claim, made on June 20, that he was attending a trade school.
. Unfortunately the majority has ignored this statement. They, therefore, fail to realize that much of what they find fault with was done with defendant’s consent, and perhaps even at his request.
. The majority, in concluding that counsel was incompetent, relies heavily on this portion of the record where defense counsel asked the defendant whether he committed 14 stabbings and shootings. Significantly, however, at the trial the prosecutor objected to this line of questioning on the ground that the People’s case was being prejudiced.
. In view of the agreement not to prosecute it is apparent that counsel’s representation should not be found ineffective because he acted as a friend of the court.
. Although not controlling here, in Indiviglio v United States (612 F2d 624), the United States Court of Appeals for the Second Circuit reaffirmed its adherence to the farce and mockery standard.
. See, also, the First Department’s memorandum decision in People v Sellars (74 AD2d 551).
. At the first trial counsel told the court at a sidebar conference that the defendant wanted any acts reflecting on his mental condition brought to the jury’s attention. At the second trial before counsel took the stand he conferred with the defendant.
. The majority (p 289, n 25) seeks to distinguish Garrow. However, they misapprehend its significance which lies not in the criteria used to review effectiveness of counsel but in the statement that it is not unreasonable to expect that an insanity defense would be buttressed by testimony as to bizarre behavior. By way of comparison, see People v Duke (58 AD2d 31) where, in a case not involving an insanity defense, the Appellate Division, First Department, ordered a new trial on the ground of inadequacy of counsel, inter alia, because defense counsel brought to the jury’s attention proof of prior sales of narcotics by the defendant on occasions other than those charged in the indictment. The distinguishing feature of course is that such evidence served no purpose for the defense. It merely showed that defendant was of a criminal bent deeply involved in the narcotics business.
. The court stated the following (p 398): "Nonetheless, given the judicial need for *309the application of some standard with which to gauge the representation provided by defense counsel, we have attempted in the past to formulate a threshold standard, and, in so doing, have held that although counsel’s representation of a defendant need not be errorless (People v La Bree, 34 NY2d, at pp 260-261, supra), it must not be such as to render the defendant’s 'trial a farce and a mockery of justice’. (People v Brown, 7 NY2d 359, 361, cert den 365 US 821; People v Bennett, 29 NY2d, at p 467, supra; People v Tomaselli, 7 NY2d 350, 354.) In recent years, however, we have displayed a greater desire to avoid the confining strictures of a standard presumptively applicable to all cases. In People v Droz (supra), for example, rather than measuring the quality of counsel’s representation of the defendant in terms of the 'mockery of justice’ standard, we concluded only that upon the facts of that case counsel’s omissions and errors precluded us from finding that his representation of the defendant 'was adequate or effective in any meaningful sense of the words.’ (39 NY2d, at p 463, supra.)”
. Of course while there are limitations on the People in introducing proof of prior crimes (see People v Santarelli, 49 NY2d 241), such limitations certainly do not apply to a defendant seeking to prove insanity.
. "[D]efense counsel is not required to brief and argue every conceivable argument” (United States v Daniels, 558 F2d 122, 126).
. The majority (p 285, n 17) asserts that the instructions given are those normally charged when the prosecution introduces evidence of other crimes. The fact remains that the instructions were favorable to the defendant’s claim that he did not commit the crimes.
. Counsel’s summation, as set forth, supra, p 299, indicates that the prosecutor conceded in the jury’s presence that it may consider defendant’s prior acts on the question of his sanity.
. The majority (p 286, n 19) contends that the suppression was on constitutional grounds. While the written decision speaks of constitutional rights, Criminal Term nevertheless states: "It is the opinion of this Court * * * that the defendant’s attorney relied upon his understanding of the arrangement made with the Assistant District Attorney”. In any event, Criminal Term’s oral statement (supra, p 272) makes clear that the court believed that there was an agreement not to prosecute.
. The majority (p 286, n 19) points to the failure to obtain suppression of the July 7 and 14 statements concerning the Januszko murder. By any reckoning this can be of no effect in view of the failure to suppress the June 21 admissions. That failure is discussed infra.