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April 23, 1981

Vito MATARESE, Petitioner,
Eugene LeFEVRE, Superintendent, Clinton Correctional Facility, and Robert Abrams, Attorney General, State of New York, Respondents

The opinion of the court was delivered by: NEAHER


Petitioner was convicted by a jury in Supreme Court, Kings County, of robbery and sentenced to a term of imprisonment of 15 years to life pursuant to New York's persistent felony offender statute, N.Y.Pen. Law § 70.10. Claiming that the instructions given his jury with regard to the issue of intent violated his constitutional rights under Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), petitioner has applied to this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In addition, petitioner claims that he was improperly sentenced as a persistent felony offender because he elected to stand trial rather than plead guilty. *fn1" For the reasons which follow, the petition is denied.

 Petitioner had been drinking in a bar in Brooklyn, New York, on the afternoon of October 12, 1976. He was observed walking around the bar, from the front where he stood looking out the window to the back of the barroom near the telephone. He became involved in an altercation with one Clifford Ely, who either fell or was knocked to the floor by petitioner. At that point, Louis Schobel, a friend of Ely's, came over to see what was happening. After petitioner ordered him to go into the bathroom, Schobel tried to strike petitioner. Petitioner then lifted up his coat, exposed what appeared to be a gun, and ordered Schobel, another patron and the bartender into the bathroom. An off-duty policeman entered the bar as the others were walking towards the bathroom and petitioner grabbed his arm and commanded that he follow the others. When all were in the bathroom, petitioner told them not to come out or they would be shot. He then took $ 140 from the bar's cash register and fled.

 Following petitioner's conviction of robbery in the third degree, a hearing was conducted into his fairly extensive prior criminal record and other circumstances relative to the appropriateness of his sentence as a persistent felony offender under N.Y. Pen. Law § 70.10. On appeal to the Appellate Division, Second Department, petitioner's conviction and sentence were affirmed without opinion, People v. Matarese, 74 A.D.2d 740, 424 N.Y.S.2d 968 (App.Div. 2d Dept. 1980), and leave to appeal to the New York Court of Appeals was denied. 50 N.Y.2d 846, 430 N.Y.S.2d 1032, 407 N.E.2d 1360 (1980). Since both of the grounds upon which petitioner bases the instant application were raised on his direct appeals, he has exhausted his available State remedies. Picard v. O'Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979).

 At trial, the court's charge to the jury contained the following language:

"It is a fundamental rule in evidence that a person is presumed to intend the natural consequences of his act, unless the act was done under circumstances or conditions which preclude the existence of such intent." Trial Transcript pp. 179-80.

 It appears that petitioner's trial counsel failed to object to that instruction of which he now complains. The State contends that this default under New York's contemporaneous objection rule, N.Y.Crim.Proc.Law § 470.05(2), see People v. Robinson, 36 N.Y.2d 224, 367 N.Y.S.2d 208, 326 N.E.2d 784 (1975), constitutes an adequate and independent State ground that bars review of this claim on a federal habeas petition. Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). Petitioner's brief to the Appellate Division, however, clearly presented the Sandstrom issue in federal constitutional terms. If the State court chose to ignore the procedural default and dispose of the appeal on its merits, then "a federal (habeas) court implies no disrespect for the State by entertaining the claim." Ulster County Court v. Allen, 442 U.S. 140, 154, 99 S. Ct. 2213, 2223, 60 L. Ed. 2d 777 (1979). On the other hand, if petitioner's appeal was rejected due to an invocation of the State procedural bar, in the absence of "cause" for the default, *fn2" Wainwright precludes this Court from proceeding to the merits of the waived claim.

 The unique circumstances of this case arise out of the fact that neither the Appellate Division, in affirming, nor the Court of Appeals, in denying leave to appeal, did so by opinion expressing its rationale. Nevertheless,

"the absence of express reliance upon procedural grounds is not determinative of the question of federal habeas review.... Instead, federal courts applying Wainwright have attempted to determine, on a case by case basis, whether state procedural bars were invoked by the state courts or whether the merits of the claim remain open for federal habeas review.... The cases suggest certain factors which may be helpful in determining whether a procedural default occurred: whether the federal claim was properly presented to the state courts, whether the prosecution argued the procedural default in the state courts, and, of course, whether the state court opinions suggest reliance upon procedural grounds or a determination of the merits. (Citation omitted.)" Gruttola v. Hammock, 639 F.2d 922, 929 (2d Cir. 1981) (emphasis supplied).

 In the case at bar, since the question whether the Appellate Division reached the merits in affirming without opinion presents an issue of State law, see Wainwright v. Sykes, supra, 433 U.S. at 85-86, 97 S. Ct. at 2505-06, it is critical to note that petitioner's appeal was argued and decided after the Appellate Division decision but before the Court of Appeals decision in the case of People v. Thomas, 71 A.D.2d 280, 422 N.Y.S.2d 394 (App.Div. 1st Dept. 1979), rev'd, 50 N.Y.2d 467, 429 N.Y.S.2d 584, 407 N.E.2d 430 (1980).

 In Thomas, the First Department had relieved the appellant of a conceded failure to object contemporaneously to a Sandstrom charge by invoking a New York rule that no trial objection is necessary to preserve for appellate review a point of law arising out of a trial procedure at basic variance with constitutional mandates. People v. Thomas, supra, 422 N.Y.S.2d at 397. See People v. Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898 (1976), aff'd sub nom., Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). The Court of Appeals reversed, holding that, notwithstanding Sandstrom, the "narrow exception" of Patterson does not excuse the failure to object to a charge long disapproved by the courts of New York. People v. Thomas, supra, 429 N.Y.S.2d at 587, 407 N.E.2d 430.

 At the time petitioner's appeal to the Second Department was briefed and argued, therefore, the First Department had within weeks announced a rule that would have allowed petitioner to appeal a point based on the Sandstrom decision rendered only months earlier. Moreover, rather than press the procedural bar, the State brief to the Appellate Division contained a full discussion of the Sandstrom issue on its merits and made only the following footnote reference to the question whether the point had been preserved for appeal:

"No objection to the court's charge or supplemental charge was made by appellant. However, we do not believe that this omission precludes review of the charge as a question of law. (People v. Elery Thomas, 71 App.Div.2d 280, 422 N.Y.S.2d 394 (1st Dept.), NYLJ, 12/24/79, p. 1, col. 6, at p. 24, col. 2 (citing cases))." Respondent's Brief to Appellate Division at 21.

 In the light of this concession, it would seem unlikely that the Second Department chose to rely upon petitioner's procedural default and, without opinion expressing its reasoning, thereby establish a rule conflicting with that recently announced by the First Department. *fn3" See Alburquerque v. Bara, 628 F.2d 767, 772 (2d Cir. 1980) (State court rejection without discussion of habeas petitioner's claim held not affirmance on procedural grounds, noting that "no reasoned, factually substantiated opinion has been rendered by the State courts holding that Alburquerque did not meet the procedural requirements" necessary to preserve claim asserted on habeas petition). See also Ulster County Court v. Allen, supra, 442 U.S. at 152, 99 S. Ct. at 2222 ("the ...

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