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September 16, 1980

RADAMES COPPIN, Petitioner, against WALTER T. FOGG, Superintendent of Eastern Correctional Facility, Respondent.

The opinion of the court was delivered by: DUFFY



 The present proceeding is in the nature of habeas corpus brought under Section 2254 of Title 28 United States Code. The petitioner was convicted in the Supreme Court of New York, Bronx County (John J. Riley, Jr., J.) of robbery in the first degree. Judgment was entered on March 10, 1977, on a jury verdict. The court sentenced the petitioner to a prison term of five to ten years as a second felony offender. The petitioner is presently serving his sentence at the Eastern Correctional Facility of which the respondent is superintendent.

 The petitioner appealed his conviction to the Appellate Division of the Supreme Court, First Department on May 11, 1978. The Appellate Division affirmed the conviction. Leave to appeal to the Court of Appeals of the State of New York was denied.

 Basically, the petition contends that Coppin's constitutional rights were violated during his trial in the Bronx in that the prosecutor commented to the jury that petitioner's silence at the time of arrest was evidence of a guilty mind. It is alleged that this comment violated the petitioner's rights under the fifth amendment to the Constitution as applied to the states under the fourteenth amendment. To understand the petitioner's allegations, it is necessary to have some knowledge of the facts proved at trial. It was alleged, and the jury found, that the petitioner in concert with two others, Robinson Cruz and Silvana Quintana, robbed one Daniel Roach on or about January 22, 1975. On that night, Roach was walking home along Beach Avenue after completing his night shift at the Hess Oil Company. Quintana and Cruz approached Roach. Quintana held Roach against the fence while Robinson Cruz, brandishing a knife, took $10, some change and some eye glasses from Roach. Before fleeing the scene, Cruz cautioned Roach, "Yell and I'll kill you." Across the street saving goodnight to his girlfriend was an off-duty patrolman, Efrain Aponte. Aponte went ove to Roach who told him about the robbery and Aponte gave chase to Cruz and Quintana.Aponte said, "Halt. Police." But the two men kept running.When Aponte reached the corner he drew his gun and observed the two men getting into an unlighted white Cadillac with the motor running. Once again Aponte called out, "Police." He thought that one of the suspects appeared to have a gun in his hand. Aponte then saw a flash in the dark and fired his own weapon four times hitting the rear of the suspect vehicle.

 The suspects entered the car and drove north on Westchester Avenue. At the same time, two police officers on radio patrol, Michael Greco and Leonard Caruso, were proceeding south on Westchester Avenue. They heard the sound of gun fire, and suddenly the unlit white Cadillac sped north past them on Westchester Avenue.

 The officers made a "U" turn and gave chase to the speeding Cadillac. Notwithstanding the flashing lights and screeching sirens, the driver of the Cadillac continued in a high-speed flight at about 80 mph across the Bronx roadway network. The chase continued for about six miles when it finally was halted at Ferry Point Park underneath the Bronx side of the Whitestone Bridge.

 At that point, the two officers got out of the car. Cruz started to run away into the park. Officer Caruso chased him and finally captured him after Cruz had attempted to throw away a knife and a $10 bill.

 Officer Greco, meanwhile, was holding Quintana and petitioner Coppin at gun point near the Cadillac vehicle. Greco ordered the two of them over toward the wall of the Whitestone Bridge, told them to spread eagle and patted them down for a weapon. Thereafter, all three defendants were transported by Officer Caruso to the 43rd Precinct while Officer Greco drove the Cadillac to the Precinct House.

 While at the Precinct House, the petitioner Radames Coppin, apparently only gave the police officers his pedigree and other background information necessary for them to fill out their arrest reports. It is clear that Coppin made no incriminating statements. Apparently, however, one of Coppin's co-defendants made a statement which was exculpated Coppin.

 Cruz and Quintana were tried separately from the petitioner. At the petitioner Cruz' trial, defense counsel decided not to put the petitioner on the stand in view of the fact that after a Sandoval hearing the People would be permitted to cross-examine the petitioner on certain of his prior convictions. Since the petitioner was not going to take the stand, apparently defense strategy was to denigrate the investigation by the police officers.

 Thus, the defense asked both Officer Greco and Officer Caruso whether they had asked the defendant for a statement or whether the defendant had volunteered any statement. Defense counsel cross-examined Officer Greco as follows:

 Q. Did he at that time say to you, "You got the wrong man; I had nothing to do with this"?

 A. No sir.

 Q. He didn't say that ...

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