The opinion of the court was delivered by: MISHLER
Petitioner seeks a writ of habeas corpus. He is presently in the Attica Correctional Facility pursuant to his conviction in Kings County Supreme Court on December 26, 1972. He was found guilty of felony murder after a jury trial, and received a sentence of twenty-five years to life imprisonment. On January 19, 1976, the Appellate Division unanimously affirmed the conviction, and, on April 29, 1976, the Court of Appeals denied permission to appeal. The claims presented by this petition were raised on the appeal to the Appellate Division. Since available state remedies have been exhausted by petitioner, we turn to a consideration of his claims, 28 U.S.C. § 2254(b) and (c).
On the evening of June 12, 1971, Jesus and Alicia Cordova were working in their bodega (grocery store), located at 2911 Mermaid Avenue in Brooklyn. At approximately 9:00 P.M., the Cordovas were behind the counter, which ran from the front of the store to the rear, along the right side (walking through the door from the street). A part time employee, John Figuroa, was also in the store. According to the testimony of Mrs. Cordova and Mr. Figuroa, the petitioner walked into the store and approached Mr. Cordova, gun in hand. The petitioner said, "give the wallet, give the wallet, give the wallet" (Tr.129). A shot was fired, striking Mr. Cordova. The petitioner then pointed the gun at Mrs. Cordova, saying, "you call the police, I kill you, too" (Tr.114). He demanded money, and Mrs. Cordova threw a bag of coins to him. He then left the store. Mr. Cordova later died from his gunshot wound. The petitioner was arrested on June 24, 1971.
The petitioner, who testified in his own behalf, stated that he did not have a gun when he entered the bodega (Tr.196-97). He claimed that a companion, standing across the street, had fired the shot that killed Mr. Cordova. The petitioner admitted that he was a heroin addict with a habit that cost him between $30-40 per day.
The most significant claims of error involve a statement made by the petitioner to an assistant district attorney named Leon Bornstein. On July 28, 1971, Bornstein interviewed the petitioner at 120 Schermerhorn Street in Brooklyn, following his arraignment on robbery and assault charges, but prior to arraignment on the homicide charge. According to Bornstein, the petitioner, who was not accompanied by counsel at this interview, admitted that he had a gun when he entered the bodega (Tr.234-35). This statement was used on cross-examination of petitioner and in the prosecution's rebuttal to impeach the petitioner's testimony that he had not been carrying a gun.
The petitioner claims that he was denied a fair trial because (1) the prosecutor failed to disclose the Bornstein statement to the defense prior to trial; (2) the trial judge failed to hold a hearing to determine the admissibility of the statement; and (3) the trial court failed to instruct the jury that the Bornstein statement was not to be considered as evidence of guilt. In its brief before the Appellate Division, the District Attorney conceded that the denial of a hearing and failure to instruct the jury were errors. The respondent in the present case makes no such concession.
For the most part, these claims warrant little discussion. The record reveals that prior to the trial, the prosecutor did reveal the existence of the Bornstein statement to the defense, and that the defense counsel requested a Huntley hearing on that statement (Tr.7-8). Moreover, this claim has been held not to raise an issue cognizable in a habeas corpus proceeding. United States ex rel. Cummings v. Zelker, 329 F. Supp. 4, 8 (E.D.N.Y.1971), aff'd, 455 F.2d 714 (2d Cir.), cert. denied, 406 U.S. 927, 92 S. Ct. 1800, 32 L. Ed. 2d 128 (1972).
As to the failure to give limiting instructions, this claim does not raise a constitutional issue. In United States ex rel. Wright v. LaVallee, 471 F.2d 123 (2d Cir. 1972), cert. denied, 414 U.S. 867, 94 S. Ct. 167, 38 L. Ed. 2d 87 (1973), the petitioner claimed in a habeas application that the trial court erred in failing to instruct the jury that an otherwise inadmissible statement made by petitioner must be considered only in evaluating his testimony. The Court rejected this claim, stating that
[while] the better practice would have been to give an instruction to the jury limiting its use of the statement to evaluation of petitioner's credibility . . ., we are satisfied that under the circumstances of this case, where the shootings were admitted, the jury could only have used the statement to appraise petitioner's trial testimony as to how they happened, a use which [ Harris v. United States, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971)] permits.
Similarly, in this case, even in the absence of limiting instructions, it was clear that the Bornstein admission was employed to contradict the petitioner's testimony that he was not carrying a gun when he entered the Cordovas' bodega. Moreover, the defense counsel failed to request limiting instructions following the testimony by Bornstein and did not object to the trial court's charge to the jury (Tr.292). The failure to object constitutes a waiver that precludes the assertion of the claim in a habeas proceeding. United States ex rel. Satz v. Mancusi, 414 F.2d 90, 92 (2d Cir. 1969); United States v. Nasta, 398 F.2d 283, 285 (2d Cir. 1968); United States v. Curry, 358 F.2d 904, 912 (2d Cir. 1965), cert. denied, 385 U.S. 873, 87 S. Ct. 147, 17 L. Ed. 2d 100 (1966).
This takes us to the more substantial claim that admission of the Bornstein statement, without providing a Huntley hearing, violated the petitioner's due process right to a fair trial. Analysis must begin with Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). There, the Supreme Court ruled unconstitutional the New York procedure for determining the voluntariness of a confession. Under New York law at that time, if the evidence raised a question as to the voluntariness of the confession, the trial judge was required to instruct the jury to determine the voluntary character of the confession as well as its truthfulness. The ...