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January 9, 1979

John FORAN, Petitioner,
Hon. Paul METZ, as Superintendent of Great Meadow Correctional Facility, Respondent

The opinion of the court was delivered by: CANNELLA


Petition for a writ of habeas corpus is denied. 28 U.S.C. § 2254.

 Petitioner is presently confined at Auburn Correctional Facility pursuant to a judgment of the New York County Supreme Court convicting him, after a jury trial, of attempted murder. On February 18, 1975, petitioner was sentenced to a term of imprisonment of seven to twenty-one years. The judgment of conviction was affirmed, without opinion, by the Appellate Division of the New York Supreme Court and leave to appeal to the New York Court of Appeals was denied.

 Petitioner seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, claiming that his state court trial was unconstitutional because:

1. The Court refused to instruct the jury that a reasonable doubt of the guilt of petitioner might result from the lack of evidence against him, in violation of the Fourteenth Amendment.
2. The use of evidence against petitioner seized from the vehicle in which he was a passenger after he was illegally detained by the police for two hours, without charges or probable cause, violated his Constitutional rights secured by the Fourth Amendment.
3. A twenty-five month delay from his arrest in bringing petitioner to trial, as well as delays in excess of 180 days and 120 days, respectively, from his demand to be brought to trial and from his production in the jurisdiction from the institution where he was serving a Federal sentence, deprived petitioner of his Constitutional right to a speedy trial secured by the Sixth Amendment.

 Petition for a Writ of Habeas Corpus, at 14. The facts pertinent to each of these claims are incorporated into the discussion below.

 Jury Instructions

 To prevail on his claim that the jury instructions in the state court trial invalidated his conviction, petitioner must establish "not merely that the instruction is undesirable, erroneous, or even "universally condemned,' but that it violated some right which was guaranteed to the (petitioner) by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973).

 In this regard, the trial transcript *fn1" discloses that following the judge's charge, petitioner took exception to that portion of the instructions defining "reasonable doubt." Petitioner requested that the jury be instructed "that a reasonable doubt may arise from the evidence presented or from the lack of evidence presented by the Prosecution." *fn2" The trial court denied this request but did charge further on the definition of reasonable doubt. *fn3"

 In United States v. Caruso, 358 F.2d 184 (2d Cir.), Cert. denied, 385 U.S. 862, 87 S. Ct. 116, 17 L. Ed. 2d 88 (1966), the United States Court of Appeals for the Second Circuit confronted the precise alleged error that petitioner asserts in support of his request for a writ of habeas corpus. In Caruso, on direct appeal from a federal conviction, the late Judge Anderson rejected the argument as follows:

The remaining question raised on this appeal concerns the refusal of the trial judge to charge that reasonable doubt is a doubt which, in the exercise of reason, may arise not only from a consideration of all the evidence in the case but also from a lack of evidence. It would not have been error for the court to charge as requested, but this court has not made it a requirement that the trial judge, in charging on reasonable doubt, include the words "from a lack of evidence" or "from a want of evidence." United States v. Rinaldi, 301 F.2d 576, 578 (2d Cir. 1962). The charge as a whole correctly conveyed to the jury the concept of reasonable doubt.

 Id. at 186-87. Similarly, in the instant case, the Court concludes that there was no error in the state court jury instructions on the concept of reasonable doubt.

 Fourth Amendment

 On September 21, 1972, at 5:00 a. m., the vehicle in which petitioner was a passenger was stopped by several police cars in Central Park. At the time, petitioner was seated in the front passenger's seat, with codefendant Cumella in the driver's seat, and codefendant Mooney in the rear passenger seat. The police conducted an on-the-spot search of the car, but upon discovering no evidence, brought the car and its three occupants to the local police station for further investigation. Approximately two hours later, they again searched the car and this time found a spent .38 cartridge shell on the floor just behind the driver's seat. The ...

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