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June 8, 1981

Bernard GUICHARD, Petitioner,
Harold J. SMITH, Superintendent, Attica Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents

The opinion of the court was delivered by: NEAHER


Petitioner is currently serving a second-felony offender sentence of seven and one-half to fifteen years following his conviction for robbery in the second degree in Supreme Court, Kings County. His conviction was affirmed without opinion, 398 N.Y.S.2d 352 (App.Div. Second Dept.1977), and leave to appeal to the New York Court of Appeals was denied, 43 N.Y.2d 794, 402 N.Y.S.2d 1034, 373 N.E.2d 296 (1977). Petitioner's subsequent motion to vacate judgment was denied on January 17, 1978. For the reasons which follow, the petition is denied.

 Petitioner initially applied to this Court in May 1978 for a writ of habeas corpus alleging, inter alia, that the instructions given his jury, which included a portion stating:

"That it is a fundamental rule of evidence that a person is presumed to intend the natural consequences of his acts, unless the act was done under circumstances or conditions which preclude the existence of such intent,"

 effectively shifted to him the burden of proof regarding the element of intent in violation of his constitutional right to due process. In opposition, the State asserted at that time that federal habeas review was unavailable because petitioner had failed to exhaust State remedies. Based on a concession by the State that the issue arising out of the trial court's charge had been raised in applications for post-conviction relief in the State courts, this Court held that petitioner had exhausted available State remedies. See Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). At that time, the State did not argue that the Court was barred from hearing petitioner's claim because of a State procedural default that had resulted in a waiver of the claim in the State courts.

 Accordingly, the Court addressed the merits of petitioner's claims and denied the petition in a memorandum and order dated April 27, 1979, which is reported in 471 F. Supp. 784. On June 18, 1979, the Supreme Court decided Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), which held that an instruction that "the law presumes that a person intends the ordinary consequences of his voluntary acts" denies a defendant due process if a reasonable juror could interpret the charge as embodying a conclusive presumption or as shifting to the defendant the burden of disproving the element of intent. On the basis of this decision, the Court granted petitioner leave to renew that portion of his habeas application that was based upon the allegedly improper jury instruction.

 In opposition to the renewed petition, the State asserts that federal habeas review is wholly precluded because petitioner failed at trial to comply with New York's contemporaneous objection rule, thereby waiving his right to challenge the charge to the jury. Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). It is argued that since the State appellate courts did not relieve petitioner of this procedural default, unless he can carry his burden of satisfying Wainwright's "cause" and "prejudice" standard, the petition must be dismissed.

 Petitioner concedes that at the time it was given his attorney failed to object to the charges of which he now complains. It is well settled in New York that failure to object to an erroneous charge constitutes a waiver precluding appellate review. N.Y.Crim.Proc. Law ยง 470.05(2). People v. Cona, 49 N.Y.2d 26, 424 N.Y.S.2d 146, 399 N.E.2d 1167 (1980); People v. Argibay, 45 N.Y.2d 45, 407 N.Y.S.2d 664, 379 N.E.2d 191 (1978). *fn1" Nonetheless, petitioner asserts that his requests to charge and subsequent exceptions may be deemed sufficient to have put the trial court on notice that his defense was based on lack of intent and therefore that the charge was objectionable.

 Petitioner's counsel requested the trial court to instruct the jury regarding petit larceny and criminal facilitation as lesser included offenses. These requests were denied and defense counsel excepted from the rulings. Although petitioner argues that these requests demonstrated his trial attorney's concern with the issue of intent, they are insufficiently specific to preserve the issue for appeal in the State courts. See People v. Liccione, 50 N.Y.2d 850, 430 N.Y.S.2d 36, 407 N.E.2d 1333 (1980); People v. Cona, supra. Petitioner's requests to charge were not directed to that portion of the charge he now seeks to challenge as improperly shifting the burden of proof regarding intent. Nor can it be said that these general requests served the express purpose of New York's contemporaneous objection rule to bring specific errors to the trial court's attention at the time when they can be corrected. See People v. Robinson, 36 N.Y.2d 224, 367 N.Y.S.2d 208, 326 N.E.2d 784 (1975). Moreover, the issue of waiver presents a question of State law, Wainwright v. Sykes, supra, the resolution of which by the State courts must be given great deference by a federal habeas court. Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S. Ct. 1881, 1885, 44 L. Ed. 2d 508 (1975). In this regard, the subsequent appellate history of petitioner's case strongly supports the conclusion that the State courts considered petitioner's objection to the charge to have been waived.

 It is true that the New York appellate courts have a narrow field of discretion to relieve a waiver under the State's contemporaneous objection rule where the appellate court concludes that the procedure followed at trial was at basic variance with the Constitution. See People v. Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584, 407 N.E.2d 430 (1980); 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).

 In petitioner's case, the trial court's charge did include in one section the disapproved language, and it is true that this was brought to the attention of the Appellate Division. However, the trial justice repeatedly instructed the jury that the prosecution had the burden of proving the defendant's guilt beyond a reasonable doubt, that that burden never shifts, that the defendant was presumed to be innocent throughout the trial and that he was entitled to every reasonable inference in his favor. Under these circumstances, it is highly doubtful that the exercise of this rare appellate device would have been considered appropriate. People v. Thomas, supra.

 Most importantly, the affirmance of petitioner's conviction was without opinion, which "suggests reliance upon procedural grounds ...." Gruttola v. Hammock, 639 F.2d 922, 929 (2d Cir. 1981). Under these circumstances, this Court follows the recent views of the Court of Appeals for this Circuit that

"silence on the part of the Appellate Division is more properly viewed as a decision not to sidestep the general rule requiring a contemporary objection than as a consideration and rejection of a procedurally waived claim.... We are willing to assume that the state court felt that the merits were precluded by the procedural default in this case because the procedure is based on a well-known rule of trial practice, whose observance would have afforded the trial court an opportunity to avoid the problem of which the petitioner now complains." Taylor v. Harris, 640 F.2d 1, 2 n.3 (2d Cir. 1981). *fn2"

 Upon a finding that the State courts considered a claim waived due to procedural default, a habeas petitioner may only obtain federal review by demonstrating valid cause for the waiver and actual prejudice. Wainwright v. Sykes, supra. See Forman v. Smith, 633 F.2d 634 (2d Cir. ...

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