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November 21, 1979

JAMES BROADWATER, Petitioner, against KENNETH DUNHAM, and ROBERT ABRAMS, Attorney General, State of New York, Respondents.

The opinion of the court was delivered by: PLATT


Petitioner, James Broadwater, has filed in this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Petitioner was charged with criminal possession of a weapon in the third degree and was brought to trial in the Nassau County Court. He was found guilty by a jury and was sentenced to a term of imprisonment of two (2) to four (4) years. The Appellate Division, Second Department, affirmed the conviction by an order of March 24, 1977, and the Court of Appeals (Breitel, C. J.) denied leave to appeal in April, 1977.

 Petitioner makes five arguments in support of his petition for a writ of habeas corpus: 1) that he was subjected to an unconstitutional search and seizure, since, according to petitioner, the information the police received leading to his arrest did not amount to probable cause; 2) that petitioner was not given sufficient Miranda warnings and did not properly waive his constitutional rights; 3) that the trial court erred in permitting the prosecution to use one of defendant's admissions on cross-examination without holding a hearing on voluntariness and lack of notice; 4) that the prosecutor improperly commented during summation on petitioner's failure to offer exculpatory explanations to the arresting officer; and 5) that the indictment was defective because of certain alleged improprieties occurring during the grand jury proceeding. Petitioner has exhausted his State remedies on each of the above issues. See Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1974).

 Petitioner's first claim of unconstitutional search and seizure due to a lack of probable cause may be rejected on procedural grounds. The Supreme Court held in Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 3052, 49 L. Ed. 2d 1067 (1976), that ". . . (w)here the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted habeas corpus relief on the ground that evidence obtained through an unconstitutional search and seizure was introduced at his trial." From the record, it is clear that petitioner was given ample opportunity to litigate his Fourth Amendment claim throughout his State proceedings. At his suppression hearing, the Court found that "patrolman Ballard had probable cause to believe that defendant had a gun in his possession and was justified in opening the door of the car where the gun was in his view and that the arrest was lawful." (Huntley hearing transcript at 69). Furthermore, petitioner raised his Fourth Amendment claim before the Appellate Division in his brief and oral argument, and at his leave-to-appeal hearing before then Chief Judge Breitel of the Court of Appeals.

 Therefore, since the State has already determined the merits of petitioner's claim, it is not properly reviewable in a federal habeas corpus action and will not be considered here.

 Petitioner next asserts that he was given insufficient Miranda warnings and did not validly waive his constitutional rights. Presumably, this claim relates to the admission of two allegedly inculpatory statements against the petitioner at trial.

 This asserted ground may be disposed of on grounds similar to those applicable to petitioner's Fourth Amendment claim. On the basis of the Supreme Court's holding in Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1976), this Court need not consider either the adequacy of the Miranda warnings given to petitioner or the admissibility of the two statements in question. Petitioner's failure to raise these issues at the Huntley hearing constituted a State procedural waiver, placing this case squarely within the holding of Wainwright that, where a State requires a contemporaneous objection to or inquiry about the admissibility of post-arrest statements, failure so to object or inquire precludes later federal habeas corpus review, absent "a showing of "cause' and "prejudice' attendant to" the failure to follow the State procedural requirement. Wainwright, 433 U.S. at 87, 97 S. Ct. at 2506.

 New York clearly requires pre-trial inquiry into the adequacy of Miranda warnings to preserve the issue for appellate review. People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920 (1976). It is apparent in this case that the State appellate courts did not consider the sufficiency of the Miranda warnings to be at issue, as evidenced by the Appellate Division's affirmance of petitioner's conviction without opinion. Further, petitioner has made no showing in this Court of the kind of "cause" and "prejudice" required by Wainwright to allow this Court to entertain a collateral attack on the adequacy of petitioner's Miranda warnings.* See also Francis v. Henderson, 425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d 149 (1976). This Court, therefore, is without power to entertain petitioner's second asserted ground for relief on its merits.

 Petitioner's third claim involves an alleged error by the trial court in allowing the prosecution to use one of defendant's admissions on cross-examination without first holding a hearing on voluntariness and lack of notice. The issue here involves a statement which was not known to either side until the trial had commenced (Tr. 57). Therefore, defense counsel could not be expected to have raised this issue at the Huntley hearing where it would have been appropriately litigated. The issue therefore is whether notice or a hearing is required in order to introduce an admission by the defendant on cross-examination.

 It has been held in this jurisdiction that lack of notice does not raise an issue cognizable in a habeas corpus proceeding. Rivera v. Warden, 431 F. Supp. 1201, 1203 (E.D.N.Y.1977); 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). Moreover, the record reveals that the prosecution disclosed the uncounseled statement to the trial court and to defense counsel as soon as it was disclosed to him (Tr. 57).

 However, the Court in Rivera went on to hold that a defendant is entitled to a separate determination of the voluntariness of a confession before it will be admitted for impeachment purposes, where coercion or other circumstances of involuntariness are in issue. Id. at 1205. Therefore, had defense counsel alleged involuntariness and requested a Huntley hearing at any time after learning of the uncounseled statement, under Rivera, he would have been entitled to it. Instead, defense counsel reserved this right when the statement was first disclosed (Tr. 57), and at the close of the prosecution's case, merely requested that the district attorney be precluded from introducing the statement (Tr. 147). Furthermore, the thrust of defense counsel's motion appeared to be lack of notice and unfair surprise (Tr. 148), an admittedly weaker argument than the absence of a hearing on voluntariness. Therefore, in view of the prosecution's speedy disclosure, that no request for a Huntley hearing was made during trial, that defense counsel appeared to rely on lack of notice as the rationale for his objection to the admission of this statement on cross-examination, and the overwhelming evidence of defendant's guilt according to the record in this case, petitioner's third claim must be dismissed as meritless. *fn1"

 Petitioner's fourth claim involves allegedly improper comment by the prosecution during summation on petitioner's failure to offer exculpatory explanations to the arresting officer.

 At the outset, it should be noted that petitioner failed to object to these asserted improprieties at the trial, raising them for the first time on appeal. The trial judge was thereby denied the opportunity to correct any error which may have been committed. More importantly, petitioner is now foreclosed from raising these points in a federal habeas corpus petition because of the Supreme Court's holding in Wainwright v. Sykes, discussed Supra in connection with petitioner's second ground for relief.

 Even if we were to address petitioner's contention, we would find that any impropriety that may have occurred was harmless error and did not rise to the level of constitutional dimension so as to be redressable here. We note that in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), in which the Supreme Court held that the use for impeachment purposes at trial of a defendant's post-arrest silence after he has received Miranda warnings violates the due process clause of the Fourteenth Amendment, the Court clearly implied that its holding encompassed a harmless error exception. Id. at 619, 96 S. Ct. 2240. One Circuit, in applying this exception, has noted that where a case "does not present a prosecutorial focus by repetitive questioning on a defendant's silence, as in Doyle," no constitutional error is involved. United States v. Davis, 5 ...

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