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December 21, 1978

William RONSON, Petitioner,

The opinion of the court was delivered by: LASKER

The New York Criminal Procedure Law, Section 250.10, provides that written notice of an insanity defense must be served on the prosecution and filed with the court before trial and not more than thirty days after the entry of a not guilty plea unless the court determines that the assertion of such a defense at a later time is "in the interest of justice and for good cause shown." *fn1" This petition for a writ of habeas corpus presents the question whether the denial by a trial judge of an application to assert a defense of temporary insanity after the statutory time period had elapsed deprived William Ronson of his right under the Sixth and Fourteenth Amendments to have compulsory process for obtaining witnesses in his favor and to testify in his own defense as to his alleged insanity. *fn2"

On September 11, 1972, William Ronson, who was engaged in a long and bitter dispute with his estranged wife over the custody of their children, shot and killed her in the lobby of her apartment building. Ronson surrendered to the police on the following day. Shortly after his arrest, Ronson was examined by two psychiatrists at Bellevue Hospital who found him competent to stand trial but also described him as having a "personality pattern disorder of the paranoid type". *fn3" (Opinion of Trial Judge, April 23, 1975, p. 2) However, Ronson's attorney did not file a notice of intent to rely on an insanity defense at this stage of the proceedings. *fn4"

 Ronson was represented by a succession of attorneys from the time of his arrest until the fall of 1974, when he retained Irving Anolik who has represented him at all stages of the proceedings since. *fn5" Anolik arranged for Ronson to undergo a second psychiatric examination by Dr. David Abrahamsen who determined that Ronson was able to stand trial but also stated in his report:

"It is my considered opinion that William Ronson is not responsible for his criminal act, because at the time of this act, as a result of suffering from a schizophrenic condition he lacked substantial capacity to know or to appreciate the wrongfullness (sic) of his conduct or to conform his conduct to the requirement of the law." (Petition, p. 2)

 The examination before Dr. Abrahamsen took place in October of 1974. *fn6"

 Ronson's first trial began in February of 1975. Anolik made an oral application during trial to introduce evidence relating to a defense of insanity but was allowed by the court only to introduce evidence in support of a defense of extreme emotional disturbance (Trial Transcript, February 19, 1975, pp. 242-46, 361-65, 555-57, 561-65). This proceeding ended in a mistrial when the jury was unable to reach a verdict. On March 7, 1975, after the first trial had ended, Anolik sent the Assistant District Attorney handling the case the following letter:

"We wish to advise you that should there be a retrial of the RONSON case, that (sic) the defendant reserves the right to interpose a specification of temporary insanity as a possible defense.
"It is doubtful that I shall try the case, as I explained in open court when the mistrial was declared.
"I ask nevertheless that you take due notice of the foregoing and govern yourself accordingly."

 Although Anolik did continue to act as Ronson's attorney, he made no further mention of an insanity defense until April 22, 1975, during the selection of the jury for the second trial. After eleven jurors had been questioned and sworn, Anolik, while examining the twelfth juror, mentioned the possibility of an insanity defense. The prosecutor objected, and a colloquy was held with the judge during which Anolik formally moved to interpose a defense of temporary insanity. After oral argument, the judge denied the request in a written decision, the rationale of which is elaborated below. The trial proceeded, and Ronson was found guilty of first degree manslaughter and sentenced to an indeterminate term of imprisonment with a minimum of seven years and a maximum of twenty-one.

 Following affirmance of the conviction on appeal, Ronson filed this petition for a writ of habeas corpus. The petition was referred to Magistrate Gershon who recommended in a lengthy opinion that the writ be granted on the ground that preclusion of the insanity defense violated Ronson's Sixth and Fourteenth Amendment rights. *fn7" Although the Magistrate found that an evidentiary hearing was not necessary, this court nevertheless held a hearing on September 22, 1978, to consider the circumstances surrounding Ronson's failure to give the State formal notice and the question of what prejudice would have been incurred by the State had a continuance been granted to allow it to respond to a defense of insanity. On the basis of the excellent report of Magistrate Gershon and the facts set forth in this Memorandum, we hold that the writ should be granted.


 The State argues at the outset that, under several recent Supreme Court decisions, Ronson is barred from raising his Sixth Amendment claim in a federal habeas corpus proceeding absent a showing of cause for noncompliance with the New York notice rule and a showing of actual prejudice. See Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); Francis v. Henderson, 425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d 149 (1976); Davis v. United States, 411 U.S. 233, 93 S. Ct. 1577, 36 L. Ed. 2d 216 (1973). We believe that these cases are distinguishable.

 In all of these cases the habeas petitioners raised constitutional challenges to pretrial proceedings, asserting them for the first time after trial despite applicable procedural rules which required that the objections be raised before trial. The Court held that under those circumstances federal habeas review was not available to the petitioners unless they could establish both good ...

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