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UNITED STATES EX REL. ZAVARRO v. COMMISSIONER OF C

June 23, 1972

UNITED STATES of America ex rel. Isaac ZAVARRO, Petitioner-Relator,
v.
COMMISSIONER OF CORRECTION OF the STATE OF NEW YORK and Warden of the State Prison at Wallkill, New York, Respondents


Frederick van Pelt Bryan, District Judge.


The opinion of the court was delivered by: BRYAN

FREDERICK van PELT BRYAN, District Judge:

Petitioner Isaac Zavarro, and his brother, Mark Zavarro (not a party here), were each convicted after a joint jury trial in Nassau County Court of one count of second degree arson and one count of third degree arson. Each was sentenced to concurrent terms of 4 to 10 years in prison.

 The convictions were affirmed without opinion by the Appellate Division, People v. Zavarro, 29 A.D. 2d 917, 289 N.Y.S. 2d 737 (2d Dep't 1968). The New York Court of Appeals affirmed Isaac's conviction, but reversed Mark's conviction, holding that the introduction of an out-of-court statement of Isaac's which inculpated Mark, violated the rule of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). People v. Zavarro, 26 N.Y. 2d 846, 309 N.Y.S. 2d 594, 258 N.E. 2d 91 (1970).

 Isaac Zavarro thereafter commenced this proceeding seeking a writ of habeas corpus. None of the numerous grounds advanced entitle him to relief.

 I.

 In the course of his summation, the prosecutor said:

 
He [a witness] said he left [a certain bar] immediately after Cain, that there was one other person there who no one knew who he was and we heard no evidence from the defendants who he was. *fn1"

 Zavarro contends that this was a comment on the defendants' failure to take the stand, in violation of his Fifth and Fourteenth Amendment rights under Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), and its progeny. E.g., Fontaine v. California, 390 U.S. 593, 88 S. Ct. 1229, 20 L. Ed. 2d 154 (1968) (per curiam); Anderson v. Nelson, 390 U.S. 523, 88 S. Ct. 1133, 20 L. Ed. 2d 81 (1968) (per curiam); Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). In each of the cited cases, the prosecutor had emphasized the failure of the defendant to testify, and the trial judge had charged the jury that it could draw inferences unfavorable to the defendant from his failure to take the stand. On that basis, the convictions were reversed.

 In contrast, the comment questioned here was indirect. The prosecutor's remark, quite plainly, did not specifically mention that the defendants did not testify, nor did it ask the jury to draw any inference from that fact. The statement "we heard no evidence from the defendants who he was" was indirect and could be considered a comment on failure to take the stand only when taken in conjunction with the additional fact that no one but the defendants could have made the identification. Such claims have been generally rejected in other circuits and in my view the facts here do not entitle a defendant to relief in this circuit. See United States ex rel. Leak v. Follette, 418 F.2d 1266 (2d Cir. 1969), cert. denied, 397 U.S. 1050, 90 S. Ct. 1388, 25 L. Ed. 2d 665 (1970).

 Beyond this, the trial judge included a curative instruction on defendants' failure to testify, in his charge to the Jury. *fn2" While this can scarcely be said to be an ideal instruction on the subject, defense counsel took no exception to it, and did not challenge its sufficiency in the New York Court of Appeals and does not do so here.

 I hold that the challenged remark is too "oblique" to be properly characterized as comment on the defendants' failure to take the stand. United States ex rel. Satz v. Mancusi, 414 F.2d 90 (2d Cir. 1969) (alternate holding). A jury would not "naturally and necessarily" so construe it. United States ex rel. Leak v. Follette, supra, 418 F.2d at 1269; United States ex rel. D'Ambrosio v. Fay, 349 F.2d 957, 961 (2d Cir.), cert. denied, 382 U.S. 921, 86 S. Ct. 301, 15 L. Ed. 2d 235 (1965). See United States v. Marcus, 401 F.2d 563, 566-567 (2d Cir. 1968), cert. denied, 393 U.S. 1023, 89 S. Ct. 633, 21 L. Ed. 2d 567 (1969).

 Zavarro is not entitled to relief on this theory.

 II.

 Zavarro also claims that the New York Court of Appeals held it was error to try him and his brother jointly, and that this prejudiced him because the joint trial prevented him from calling his brother as a witness. But the Court of Appeals did not hold that it was error to hold a joint trial; the error was the introduction of Isaac Zavarro's statement at the joint trial. The prosecution could have tried the defendants together and not used Isaac's statement. ...


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