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October 18, 1978

ISRAEL E. TAYLOR; Petitioner, against STEPHEN DALSHEIM, Respondent.

The opinion of the court was delivered by: DUFFY


Petitioner, Israel E. Taylor, was accused of the shooting death of James Stone in New York City on November 15, 1973. He proceeded to trial before Justice Peter McQuillan, Justice of the Supreme Court, New York County, and a jury on February 5, 1976. At the trial, petitioner elected to testify in his own defense. On February 17th the jury convicted him of manslaughter in the first degree. He was thereafter sentenced, by Justice McQuillan, to an indeterminate term of imprisonment not to exceed twenty years. The petitioner is presently serving this term in New York's Ossining Correctional Facility.

 Upon direct appeal the Appellate Division-First Department, unanimously affirmed the conviction without opinion on November 10, 1977. *fn1" The Court of Appeals denied leave to appeal in an order dated January 24, 1978, and again, upon reconsideration, in an order dated April 11, 1978.

 Petitioner, having exhausted his state remedies, now seeks a writ of habeas corpus based upon the allegation that his right to due process has been violated. More particularly, petitioner claims that he was denied a fair trial as a result of the Assistant District Attorney's cross-examination of him concerning his post-arrest silence.

 Petitioner also raises other questions of an evidentiary nature which need not be set forth at length in this opinion.

 Upon review of the trial transcript, I am convinced beyond any reasonable doubt that the petitioner was afforded a fundamentally fair trial. Moreover, I find that any prosecutorial misconduct falls short of fundamental constitutional error and, consequently, outside the purview of a writ of habeas corpus.

 The People's Case:

 James Stone, the victim of the fatal shooting, was the owner of Stone's Tire Service located on Seventh Avenue in New York City. On November 23, 1973, Stone, together with his employee Grady White, drove to Green's Auto Parts shop, located a few blocks from his own shop, in order to purchase some auto supplies. Mr. White, who was driving the truck, double parked directly in front of Green's shop. Stone then left the truck and headed towards Green's, leaving White to attend the truck. Thereafter, White spotted the petitioner, Israel Taylor, recognizing him as a previous customer of Stone's Tire Service. Apparently, Mr. Taylor had certain work performed on his car at Stone's. Subsequent to this work at Stone's, a dispute arose between Taylor and Stone concerning the bill for this work. Suffice it to say that as a result of this dispute, White was able to identify Taylor, that day, in front of Green's. White also testified that Taylor was at the time wearing a brown leather coat.

 Before the victim entered Green's shop, Taylor apparently called to him. The victim turned to face Taylor and then Taylor, pulling a gun from his coat, fired at Stone.

 As the shot was fired, Messrs. Watson and Newkirk, who were conversing a short distance away, turned to the direction of the shot. They saw Stone, whom they recognized as a local businessman, backing away from a man in a leather coat. They then saw the man in the leather coat put something in his waistband and "cooly" walk away from Stone who was now staggering as a result of his fatal wound. Thereafter, the police arrived and, upon investigation, discovered that just a short distance from the shooting a man in a brown leather coat had been seen getting into a "gypsy" cab. Within moments the police radioed the cab's description and plate number to local mobile units and the cab was stopped. The petitioner was found inside the cab with the brown leather coat folded over his lap and was immediately arrested.

 The Defendant's Case:

 The petitioner, testifying on his own behalf, admitted his presence at the scene of the shooting, but gave quite a different account of the events leading up to the fatal incident.

 The petitioner testified that he was the intended victim on November 23 and that Stone was the aggressor. Indeed, he testified that Stone, White and a third man approached him in front of Green's and that Stone then grabbed him. He said that this attack was prompted by a prior dispute with Stone over a bill for certain work done on Taylor's car at Stone's shop. He also testified that White, standing next to Stone, said "let's blow him away" and then White reached into his waistband for a gun. At that point Taylor, in an effort to flee from the trio, pushed Stone into White, turned and ran. Petitioner, in fear of his life, flagged a cab and was arrested when the cab was subsequently stopped by the police.

 Petitioner also testified that this was not his first confrontation with Stone concerning his auto bill. He testified that sometime in August of 1973, Stone openly threatened Taylor demanding payment. Moreover, Taylor stated that Stone ...

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