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March 29, 1979

Yusuf Abdul Alim a/k/a Albert McQueen, Petitioner,
Harold J. Smith, Superintendent, Attica Correctional Facility, Respondent.

The opinion of the court was delivered by: CURTIN

Petitioner has filed an application for habeas corpus relief under 28 U.S.C. § 2254. Permission to proceed in forma pauperis was granted, and Paul V. Hurley, Esq., of Buffalo was assigned to represent petitioner in this matter.

Petitioner was convicted in Supreme Court, Queens County, February 7, 1973, of assault in the second degree, N.Y. Penal Law § 120.05(3); felony weapons possession, N.Y. Penal Law § 265.05; obstructing governmental administration, N.Y. Penal Law § 195.05; and theft of services, N.Y. Penal Law § 165.15. He received a conditional discharge on the misdemeanor convictions (obstructing governmental administration and theft of services). He received concurrent indeterminate sentences of incarceration, not to exceed seven years, on the felony convictions (assault and weapons possession). The conviction was affirmed without opinion by the Appellate Division June 13, 1975. Leave to appeal to the Court of Appeals was denied August 29, 1975.

The petition raises four grounds for relief: that because he did not meet with his counsel until some months after indictment he was deprived of effective assistance of counsel; that he was denied effective assistance of counsel because of joint representation of petitioner and his codefendant; that there was no evidence of an element of second degree assault; and that his right to a fair trial was prejudiced by the prosecutor's inflammatory summation to the jury.

 Mr. Hurley was appointed counsel for petitioner on November 22, 1976, and filed an amended petition in January, 1977. Several months were consumed in the filing of pleadings and memoranda of law, culminating in oral arguments which took place on August 23, 1977. After reviewing the records of the underlying criminal proceedings and the legal arguments of the parties, I determined that some form of testimony from petitioner's defense counsel would be required in order to decide petitioner's effective assistance of counsel claim. By my order of May 26, 1978, I ordered respondent to locate petitioner's defense counsel, and by my order of July 25, respondent was ordered to obtain from him an affidavit setting forth certain facts deemed relevant to this issue. Such affidavit was filed on August 18, with annexed copies of defense counsel's correspondence with petitioner and memoranda concerning court appearances and telephone calls with petitioner. A stipulation was then entered setting forth facts regarding petitioner's first contact with his counsel. This is the key to petitioner's effective assistance of counsel claim, since this claim rests not on counsel's performance at trial but upon his failure to have any actual assistance from counsel during a period of several months prior to trial.

 The affidavit and stipulation having been filed, I found the factual record sufficient to obviate the need for a factual hearing, and the case was submitted for judgment in December, 1978.

 The Facts

 Petitioner Alim, then known as McQueen, entered a subway station in New York City with codefendant Roberts early one morning in July, 1972. Prosecution witness Mrs. O'Connell, a token vendor, and Patrolman Lozinski, a Transit Authority patrolman, testified that both men passed through the turnstile into the subway system using a single token. This testimony formed the basis for the theft of services conviction.

 After passing through the turnstile, they ascended a stairway to another level in the station. Shortly thereafter, petitioner was confronted by Patrolman Lozinski who, according to Lozinski's testimony, accused him of entering without paying and asked him to return to the token vendor's booth. The two men voluntarily accompanied Lozinski back to the vicinity of the booth, where an altercation took place.

 Mrs. O'Connell's opportunity to observe this altercation was limited, and her testimony concerning the altercation is inconclusive. Codefendant Roberts and Patrolman Lozinski both offered versions of this incident, which differed greatly.

 Roberts testified that Lozinski did not arrest Alim at this point, but began to poke and hit him with his nightstick and attempted to search his pockets. According to this testimony, Lozinski struck Alim in the head with the nightstick, whereupon Alim "pushed" or "grabbed at" the nightstick and "they started tussling." (T. at 155, 168.) Roberts objected and Lozinski struck him in the face with his service revolver. Minutes later, city police arrived and arrested Alim and Roberts.

 Patrolman Lozinski's version is essentially as follows: after observing the two men pass through the turnstile together, he followed them upstairs, approached them, and asked them to return downstairs. They returned to the token booth area, but when instructed to buy a new token, Alim refused to do so and began to curse Lozinski. Lozinski asked him to show identification so that Lozinski could write a summons, but Alim refused. He was then told that he was under arrest.

 At this point, according to Lozinski's testimony, the five-foot-seven petitioner grabbed the six-foot-one patrolman's nightstick and struck him with it. They struggled and fell to the floor, the patrolman astride Alim with his nightstick across Alim's throat. Roberts approached with a small open knife in his hand and Lozinski, at that moment drawing his revolver in order to "subdue" Alim, struck Roberts across the jaw with the revolver.

 The ticket vendor, Mrs. O'Connell, confirms that both men entered the subway using a single token. She further testified that the three men returned to the vicinity of her token booth, where she heard snatches of their conversation. She heard Lozinski ask petitioner to buy another token, heard him refuse, and later heard the word "arrest." She saw petitioner "jump for" Lozinski's nightstick, "hit at" him with it, and saw the two fall to the floor. In sum, she heard only parts of their verbal exchange, did not see what occurred after they fell, and it is uncertain whether she observed all or simply part of what transpired before they fell out of her line of vision. Her testimony corroborates that of Patrolman Lozinski on many issues. However, it is also consistent with the version of events offered by the defense on several critical issues, e.g., whether Alim actually possessed the nightstick, whether he actually struck Lozinski with it, whether Lozinski was harassing Alim or simply performing his duties (which is material to whether Alim acted with the intent "to prevent a peace officer . . . from performing a lawful duty," as required by N.Y. Penal Law § 120.05(3)), and whether Alim's struggle for control over Lozinski's nightstick was an act of self-defense.

 No Evidence Of An Element Of Second Degree Assault

 Petitioner argues that there was no evidence that the Transit Authority patrolman he allegedly struck was a "peace officer," which under N.Y. Penal Law § 120.05(3) is an element of the crime of which he was convicted. This issue has not been raised in the state courts, as ...

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