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December 3, 1980

Bobby WASHINGTON, Petitioner,
David HARRIS, Superintendent of Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: CANNELLA


The amended petition of Bobby Washington for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is granted on the conditions stated in this Memorandum and Order.


 Petitioner is currently confined at the Green Haven Correctional Facility, Stormville, New York, pursuant to a judgment convicting him, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the third and fourth degrees. The facts underlying petitioner's conviction, as summarized in the Court's Memorandum and Order denying his original petition, *fn1" are set forth below:

At trial, the prosecution presented the testimony of several witnesses and a written statement made by the petitioner several hours after his arrest while represented by counsel, which established the following facts: On June 4, 1973, at approximately 8:15 a.m., the petitioner and his wife were in front of their apartment at 1043 Clay Avenue in the Bronx. The deceased, Peggy Mickens, accompanied by a woman friend, approached and attacked Mrs. Washington with a knife as she was placing trash in the garbage can. Mickens had harassed and assaulted the petitioner and his family for two years prior to this incident, and both Mickens and petitioner had filed criminal complaints against each other in the past. When petitioner, who was in his car, saw the attack, he took a pistol from the glove compartment, and intervened in the struggle. Petitioner fired his gun, but did not know whether he hit Mickens. Mickens then came after him with the knife. Petitioner wrestled with Mickens until he succeeded in getting the knife away from her. When petitioner was asked if he stabbed Mrs. Mickens with the knife, he answered "I guess so. I was just afraid." Transcript of proceedings at 202, People v. Washington, No. 1999-73 (Sup.Ct. Bronx Co. October 1, 1975) (hereinafter cited as "Tr.").
The medical examiner who performed an autopsy of the deceased testified that she had a bullet wound in the right eye, which had destroyed the eyeball; slash wounds on the face; a deep slash wound on the throat, which had severed the main artery; another deep stab wound into the abdominal cavity, as well as "defensive wounds" on the hands, wrists and knee. Tr. at 132-33. Defensive wounds are recognizable as the result of an assault victim's attempt to ward off blows or grab the attacker's weapon. Tr. at 134. The medical examiner identified the cause of death as multiple stab wounds and the bullet wound to the eye, although he also testified that the bullet wound alone would not have caused the deceased to lose consciousness. Neither the petitioner nor his wife were injured during the struggle.
Alejo Martinez and George Del Valle testified that they saw petitioner grabbing a woman by the arm and stabbing her several times in the neck and face. Tr. at 87, 147. Del Valle testified that when the woman fell to the curb, the man leaned over and stabbed her in the throat. Tr. at 150. The defense attacked the credibility of these witnesses.
At trial, the petitioner was represented by retained counsel, and did not testify or call any witnesses on his behalf. The defense argued that the petitioner's post-arrest statement, which was introduced into evidence during the prosecution's direct case, was the only evidence offered concerning the defense of justification, and was "absolute proof of his innocence." Tr. at 296.

 Washington v. Harris, 486 F. Supp. 1037, 1039 (S.D.N.Y.1980) (footnotes omitted).

 In his instructions to the jury on the issue of intent, *fn2" the trial judge stated several times, in varying forms, that "a person intends that which is the natural and necessary and probable" consequence of his act. Although petitioner did not object to these instructions at trial, he now claims that the trial court's instructions on intent were constitutionally defective because they in effect created a conclusive presumption of intent or shifted the burden of proof to the defendant on that issue. Respondent answers that the trial court's instructions on intent did not deprive petitioner of due process of law and that, in any event, petitioner waived his constitutional claim by not objecting to the instructions at trial.


 In contending that petitioner waived his objection to the trial court's instructions on intent by failing to object at trial, respondent relies upon § 470.05(2) of the New York Criminal Procedure Law (McKinney 1971), which provides:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.

 Section 470.15(1) of the Criminal Procedure Law, however, has been interpreted to give the Appellate Division power, in its discretion, to consider errors not objected to at trial. Callahan v. LeFevre, 605 F.2d 70, 73 n.6 (2d Cir. 1979); People v. Thomas, 71 A.D.2d 280, 422 N.Y.S.2d 394, 397 (1st Dep't 1979). Respondent nonetheless contends that when, as here, no objection is made at trial and the conviction is affirmed by the Appellate Division without opinion, the petitioner has the burden of demonstrating that the Appellate Division exercised its discretion to consider petitioner's constitutional claims rather than affirming the conviction on state procedural grounds. The Second Circuit, however, has indicated that an issue is sufficiently preserved for the purposes of federal habeas corpus review when it is properly raised in the Appellate Division on appeal from the conviction. Callahan, supra, 605 F.2d at 73 n.6. Thus, if the Appellate Division has been afforded a ...

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