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September 24, 1975

J. LELAND CASCLES, Superintendent, Great Meadow Correctional Institution, Respondent

The opinion of the court was delivered by: PLATT



 By order to show cause and a petition, petitioner seeks a writ of habeas corpus to relieve himself of an allegedly illegal conviction imposed by the State of New York in violation of the United States Constitution.

 Jurisdiction, which is not disputed, is obtained under 28 U.S.C. § 2241(a).

 Petitioner, a citizen and resident of New York, is currently incarcerated in the Great Meadow Correctional Institution, Comstock, New York, in the custody and control of the respondent, the Warden of said institution. He was convicted after a jury trial of possessing and selling narcotic drugs and was sentenced by the County Court (LaPera, J.) of Nassau County on various counts in the indictment to concurrent terms ranging between seven (7) and twenty-five (25) years.

 On appeal to the Appellate Division, 2nd Department, petitioner argued, among other things, that the trial judge erroneously failed to charge the jury on the issue of identification and the judgment and conviction was affirmed but his sentence was modified to a fifteen (15) year maximum term. Leave to appeal to the Court of Appeals was denied by Chief Judge Charles D. Breitel on February 4, 1975.

 Concededly petitioner's "major", if not only, defense at the trial was that the undercover police officers, who purchased cocaine at the Flagstone Bar in Hempstead, New York, and thereafter gave a description to a third officer who arrested the petitioner, were mistaken in their identification of the petitioner. Although petitioner admits that he was present in the Flagstone Bar at the time the alleged sale of cocaine took place, he claims he was not the person who made the sale.

 In both opening and closing statements to the jury the petitioner's counsel focused the juries attention on the issue of the reliability of the police officers identification of the petitioner. Moreover, the testimony of the police officers on the subject appears to have been overwhelming. The third officer, William Cooper, for example, who made the arrest, testified that he had gone to high school with the petitioner and had known him for ten to fifteen years, that he saw him walk to the vicinity of a telephone booth to which area his two fellow officers went a few moments later to make their purchases and that the petitioner was the only person who would fit the descriptions given by the two fellow police officers as the person from whom they made their purchases. Both of the purchasing officers also positively identified the petitioner as the person from whom they made their purchases.

 In the trial court's charge to the jury the County Court judge gave no specific instructions concerning the issue of identification. However, the court gave the jury an instruction with respect to their duty to determine the credibility of witnesses and with respect to the elements of the crimes charged and explained that in order to find the petitioner guilty, it must find that petitioner "knowingly and unlawfully sold to" the officers in question the narcotic drugs. In addition, the trial court gave standard instructions with respect to reasonable doubt, burden of proof, presumption of innocence, etc.

 At the conclusion of the charge the petitioner's counsel raised several exceptions but did not request any further instructions with respect to the issue of identification.

 Literally a minute or two before or at the same time as the court was informed that the jury had reached a verdict, counsel for the defendant said that "I feel that the court neglected to charge the jury on the question of identification and gave no criteria or outlines that the jury should look for when considering identification testimony given by all three officers". In reply, the Court said (and the record shows no interruption) "Well, the court has now been informed that the jury has reached a verdict. I feel that the charge to the jury was sufficient." As indicated above, the petitioner was found guilty of all four counts charged in the indictment.

 The law is that absent a showing of gross error or a fundamentally unfair trial, habeas corpus will not lie to set aside a state court conviction on the basis of improper jury instructions. Young v. State of Alabama, 443 F.2d 854 (5th Cir. 1971); United States ex rel. Mintzer v. Dros, 403 F.2d 42 (2d Cir. 1968); Poulson v. Turner, 359 F.2d 588 (10th Cir.), cert. denied, 385 U.S. 905, 17 L. Ed. 2d 136, 87 S. Ct. 219 (1966); Galloway v. Burke, 297 F. Supp. 624 (E.D. Wis. 1969); Auger v. Swenson, 302 F. Supp. 1131 (W.D. Mo. 1969).

 Although petitioner cites a number of cases from other Circuits, he seems to agree that the law in this Circuit on the question of a trial court's failure to give an instruction on identification is set forth in United States v. Evans, 484 F.2d 1178 (2d Cir. 1973).

 To begin with, as the Attorney General correctly points out in his brief, the Evans case did not involve an application for a writ of habeas corpus and hence was not concerned with the question of a showing by a defendant of gross error or a fundamentally unfair trial. Evans involved a direct appeal from a federal judgment of conviction and was obviously decided on the question of whether the trial court had committed reversible error in failing to give an instruction on identification. As the Attorney General further states, the Court of ...

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