The opinion of the court was delivered by: TENNEY
This petition for a writ of habeas corpus was brought by a New York state prisoner seeking release from custody imposed after a conviction upon a jury verdict. Petitioner alleges that his conviction of sexual abuse under N.Y. Penal Law § 130.65(1) (McKinney 1975) was obtained in violation of his constitutional right to due process in that he was convicted of a crime for which he was not indicted and of which he lacked sufficient notice. For the reasons discussed below, the petition is denied.
Petitioner was indicted by a New York County grand jury for rape in the first degree, id. § 130.35, and possession of a weapon. Id. § 265.05. On January 9, 1975, after his trial on both counts of the indictment in New York County Supreme Court, petitioner was convicted of the weapons charge; he does not challenge that conviction. Rather, he alleges that his concurrent conviction of first degree sexual abuse - a crime submitted to the jury as a lesser included offense of rape - was constitutionally invalid on two grounds. First, he argues that because sexual abuse was not a lesser included offense of rape under the facts of the case, he lacked notice of the crime for which he was convicted. Second, he claims that the trial court's decision after summation to submit the charge of sexual abuse to the jury deprived him of the opportunity to defend against the charge.
Although there are serious questions concerning the availability of federal habeas corpus review of petitioner's first assertion of error - i.e., whether a "waiver" or "deliberate by-passing" of state court remedies and procedures has occurred with respect to this claim, see Fay v. Noia, 372 U.S. 391, 438-40, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963) - these questions need not be answered since the Court finds the first claim to be without merit. At the same time, however, the merits of petitioner's second claim need not be reached because the Court finds that it was not preserved for federal habeas corpus purposes. Any error respecting the timing of the trial court's decision to submit lesser included offenses under the indictment was waived by petitioner's failure to raise an objection at trial. Francis v. Henderson, 425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d 149 (1976); Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). Cf. N.Y.Crim.Proc.L. §§ 300.50(1), 470.05(2) (McKinney 1971). Additionally, petitioner's failure to present this claim to the state courts on direct appeal from his conviction constitutes a deliberate bypass of state court procedures sufficient to warrant the denial of habeas corpus relief. Fay v. Noia, supra.
The facts underlying petitioner's conviction are strange and disturbing but the legal issues raised herein necessitate a detailed review of these facts. At trial, the prosecution's chief witness, the victim of the alleged sexual attack, testified in substance as follows: After going out on a second date with petitioner, the complainant invited him into her apartment briefly to say goodnight. After she had rebuffed certain mildly romantic advances and had asked him to leave, the petitioner pulled out a gun; threatened to shoot both her and her dog unless she undressed; proceeded to insert his fingers into her anus and vagina; inserted the barrel of his gun into her vagina and threatened to pull the trigger; pinned her down, masturbated and then tried to have intercourse with her, penetrating slightly, although he was unable to achieve an erection throughout the attack. The defense called no witnesses, relying instead on challenging the complainant's credibility and arguing that no forcible sexual acts had occurred.
After summations, the trial judge asked the prosecution and defense attorneys whether they wished to have any lesser included offenses submitted to the jury. Defense counsel responded in the negative, but the prosecutor requested submission of attempted rape, N.Y.Penal L.§ 110.00 (McKinney 1975), and sexual abuse in addition to first degree rape. The trial judge agreed, stating "[It] would be my inclination unless you could persuade me otherwise Mr. Lefkowitz [defense counsel]." Trial Transcript at 366. Defense counsel did not take this proffered opportunity to object either to the submission of lesser included offenses or to the timing of the court's decision to submit them but instead stated:
"I can only say to your Honor that submitting lesser charges to the jury in this case as your Honor knows from our worthwhile discussion yesterday morning, I am concerned in this case with the effect of this weapon on the jury, nothing else...." Id. at 367.
Thereupon, the court submitted first degree rape, attempted rape, and first and third degree sexual abuse to the jury.
The record reveals that at no time did defense counsel register surprise or request an opportunity to counter, or address the jury on, the lesser included charges, nor did defense counsel except to the court's charge on these grounds.
The jury was unable to agree upon a verdict as to first degree rape or attempted rape but found the petitioner guilty of first degree sexual abuse and possession of a weapon. At petitioner's sentencing on January 9, 1975, defense counsel moved to set aside the verdict on sexual abuse as unsupported by legally sufficient evidence but raised no other objection to the sexual abuse conviction.
As petitioner concedes, neither of the two claims urged in this proceeding were raised on direct appeal in the state courts. Both the Appellate Division, People v. Mildwoff, 49 A.D.2d 521, 373 N.Y.S.2d 849 (1st Dep't 1975), and the New York Court of Appeals, People v. Mildwoff, 39 N.Y.2d 856, 386 N.Y.S.2d 214, 352 N.E.2d 131 (1976), affirmed ...