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March 4, 1977

WIDELTO LEYVA, Petitioner, against SUPERINTENDENT, Green Haven Correctional Facility, Respondent.


Petitioner seeks a writ of habeas corpus following his conviction, with two co-defendants, of criminal possession of dangerous drugs (1st and 4th degrees) after a jury trial in State Supreme Court, Kings County. He is presently serving a sentence of 15 years to life imprisonment. The judgment of conviction was unanimously affirmed by the Appellate Division, 360 N.Y.S.2d 596 (1974), and, in a written opinion, by the Court of Appeals, 38 N.Y.2d 160, 379 N.Y.S.2d 30, 341 N.E.2d 546 (1975).

Petitioner's first claim is that his conviction was obtained through the prosecutor's knowing use of perjured testimony. *fn1" Specifically he charges that the detectives and an assistant district attorney who participated in his arrest falsely testified in a suppression hearing before trial, and at trial, to their use of an informant when in fact there was no informant and an illegal wiretap was the source of their information.

 Before a constitutional claim may be asserted on federal habeas corpus, however, the federal claim must first be fairly presented to the State courts. Picard v. Connor, 404 U.S. 270, 275-76, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). A careful review of the papers submitted does not support petitioner's contention that this due process claim was presented to the State court. Petitioner, in arguing to the New York Court of Appeals that the identity of the informant whose information had supplied probable cause for the arrest should have been disclosed, pointed out that the detectives who testified were, at time of the appeal, under federal or State indictment. *fn2" This statement merely attacked their credibility and did not charge perjury.

 Petitioner's cause is not helped even if he did not learn until after his appeal to the Court of Appeals of the possibility of perjury. He may still move in the Supreme Court to vacate judgment on grounds of the knowing use of material false evidence. See N.Y.Crim.P.L. § 440.10, the statutory counterpart to a writ of coram nobis. People v. Zimmerman, 10 N.Y.2d 430, 224 N.Y.S.2d 2, 179 N.E.2d 849 (1962); People v. McElroy, 11 App.Div.2d 556, 200 N.Y.S.2d 442 (1960). If the State refuses to hear his claim, then petitioner may rightfully turn to the federal court. United States ex rel.Leeson v. Damon, 496 F.2d 718, 721 (2 Cir. 1974). But until the avenue of relief in the State court is exhausted, federal habeas corpus is unavailable. See Sitarski v. State of New York, 358 F. Supp. 817 (W.D.N.Y. 1973); cf. United States ex rel. Rohrlich v. Wallack, 251 F. Supp. 1009 (S.D.N.Y. 1966). Petitioner's request for an evidentiary hearing on this claim must therefore be denied.

 Petitioner's second claim, that he was denied his fourth amendment rights, is again based on his contention that his arrest and the search of the car were the products of an illegal wiretap, rather than the use of a reliable informant, as had been the testimony at trial. This claim must await determination by the State court of the perjury issue. *fn3"

 Finally, petitioner claims that the application of the following statutory presumption denied him due process of law:

 "The presence of a dangerous drug in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such drug was found." N.Y. Penal L. § 220.25. *fn4"

 The constitutional defect asserted is that the statute lacks a rational connection and impermissibly shifts the burden of proof on an element of the offense to the defendant to disprove it.

 Respondent argues that petitioner failed to raise the issue of the constitutionality of the presumption in the State court and may not do so de novo on habeas corpus. Although petitioner objected at trial on due process grounds to use of the presumption, his brief to the New York Court of Appeals claimed simply that the prosecutor's comments with respect to defendant rebutting the presumption and the judge's explanation constituted reversible error.

 The Court of Appeals recognized, however, that "[the] thrust of defendants' objections is clearly directed toward what they consider the inherent unfairness of the statutory presumption." 38 N.Y.2d at 164, 379 N.Y.S.2d at 33. Indeed, that court upheld the statute after review of the relevant United States Supreme Court cases before proceeding to discuss the defendants' arguments regarding its application to the facts of the case. Thus even though the petition on its face appears defective, the constitutionality of the statute has actually been ruled upon. Petitioner has sufficiently exhausted his State remedies. See also Stubbs v. Smith, 533 F.2d 64 (2 Cir. 1976).

 Before the jury were the following salient facts. *fn5" Four New York City detectives and an assistant district attorney testified at trial that they left the District Attorney's office in two cars at about 3:15 p.m. on September 22, 1971, and proceeded to the Brooklyn side of the Williamsburgh Bridge. When a 1969 gold-colored Chevrolet with Florida license plates appeared, they moved to intercept it and stopped the vehicle. The automobile contained three occupants, later identified as the driver Low, Carman Garcia, sitting in the middle seat, and petitioner Leyva, sitting in the passenger seat. The detectives testified they recognized Garcia. Detective Viera testified that he pulled petitioner from the passenger side of the car and then retrieved a brown manila envelope, which he had seen on opening the car door, from the floor of the car. It protruded about 4 to 5 inches from underneath the front seat and had been between Garcia and petitioner. The envelope contained two packets of powder with more than a pound of cocaine.

 The driver, co-defendant Low, testified as to his lack of knowledge of the presence of the cocaine. He stated that he had arrived in New York from Florida the previous day for employment purposes, and had met an acquaintance at Broadway and 42nd or 43rd Street who offered him a ride to New Jersey where he was heading. His friend stopped the car in front of a hotel somewhere in the 20's to do an errand and went into a hotel. The friend came out with Garcia and petitioner and asked Low to drive them to Brooklyn, which Low did. The "friend" did not accompany them. Neither Garcia nor petitioner testified or called any witnesses.

 The validity of a presumption in a criminal case must meet a strict standard. Due process requires at least substantial assurance that the presumed fact be "more likely than not" to flow from the proven facts, Leary v. United States, 395 U.S. 6, 36, 23 L. Ed. 2d 57, 89 S. Ct. 1532 (1969), and might even require satisfaction of the reasonable doubt standard in some situations. Barnes v. United States, 412 U.S. 837, 843, 37 L. Ed. 2d 380, 93 S. Ct. 2357 (1973). See United States v. Tavoularis, 515 F.2d 1070, 1075 n. 11 (2 Cir. 1975). Related to the validity of a presumption is the State's constitutional obligation to prove each element of an offense beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975); In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1969). Where one element is sought to be proved through the aid of a presumption, that element, it may be argued, should necessarily meet the test of proof beyond a reasonable doubt.

 The constitutional test, as applied to the facts in this case, is whether presence of a large quantity of cocaine - over a pound - in an automobile was sufficient for a rational juror to find knowing possession of the drug by petitioner, as one of ...

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