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October 2, 1981

Paul DUDLEY, Petitioner,
Stephen DALSHEIM, Superintendent, Downstate Correctional Facility, and Hon. Robert Abrams, Attorney General, State of New York, Respondents

The opinion of the court was delivered by: DUFFY


Petitioner Paul Dudley requests a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that his constitutional rights were violated at his trial for murder. Petitioner is presently incarcerated in a state prison and serving a sentence of fifteen years to life for the murder of one Marcus Brown.

 At trial, the proof showed that Dudley shot the victim with a pistol on the evening of November 2, 1972 while the victim and two others were sitting on a stoop outside 102 W. 137th Street in Manhattan. The murder was reported to the police at 12:11 a.m. on November 3. The prosecution presented three witnesses who were purportedly present at the scene of the crime. The defendant asserted that he was in a bar at the time the murder occurred and produced two alibi witnesses-the defendant's fiancee and a friend. The defendant's fiancee, Barbara Allen, testified that the defendant left her apartment at 10:00 p.m. that evening and returned at 12:30 a.m. She also testified that she talked with Dudley over the telephone for ten minutes at about midnight. The friend testified that the defendant was with him at the Silver Rail Bar on 137th Street until 11:45 p.m. or midnight. At that time, the friend left the bar leaving Dudley behind. About twenty minutes later the friend went to Barbara Allen's apartment and Dudley was already there.

 As part of the state's rebuttal case, Richard Schaeffer, an assistant district attorney, testified about a conversation he had with the defendant five days after the slaying which contradicted defendant's version of events at trial. Schaeffer testified that Dudley told him that he had been in the Bermuda Bar on 137th Street from 11:30 to 11:45 p.m. on the night of November 2, 1972. At 11:45 p.m. he went to the Silver Rail Bar to meet some friends. Dudley stayed there for about thirty minutes, leaving at about 12:15 a.m. He returned to the Bermuda Bar for five to seven minutes, and then met his father at 100 West 137th Street at 12:20 a.m. After having a drink with his father, Dudley went to Barbara Allen's apartment.

 Petitioner was convicted of murder on September 20, 1974. In his appeal to the Appellate Division, petitioner raised two claims: first, that the assistant district attorney's testimony about Dudley's alibi statement was hearsay, and second, that the trial court improperly denied without a hearing his motion to dismiss the indictment on grounds that he did not receive a speedy trial. On July 1, 1975, the Appellate Division affirmed the conviction without opinion. On November 8, 1979, petitioner filed an application for a writ of habeas corpus with the New York Supreme Court, Dutchess County. He argued that the court's instruction on intent and reasonable doubt were not proper. Dudley also argued that he was denied effective assistance of counsel in that no defense objections were raised to the trial court's charge, and because his appellate attorney did not submit an application for leave to appeal to the New York Court of Appeals. The Justice of that court treated this as a post- judgment motion to vacate the judgment of conviction pursuant to Section 440.10 of the New York Criminal Procedure Law. He then transferred the matter to New York County.

 On September 17, 1980, the application was denied. His application for leave to appeal the denial of this motion was denied on December 30, 1980 by the Appellate Division, First Department.

 Petitioner, contending he has exhausted all his state remedies, filed the instant petition on February 10, 1981, for a writ of habeas corpus in this Court. He alleges (i) that two portions of the trial court's charge denied him his right to a fair trial; (ii) that testimony about an alibi statement was improperly admitted into evidence; (iii) that the trial court improperly denied without a hearing his motion to dismiss the indictment on the ground that he had been denied a speedy trial; and (iv) that the assistance of both his trial and appellate counsel was ineffective.

 At the outset, it should be noted that on each of the grounds advanced by petitioner there has been a failure to exhaust available state remedies. This is sufficient grounds in itself to deny this petition. See 28 U.S.C. § 2254(b). For the reasons that follow, however, this petition is also denied on grounds that imprisonment of petitioner does not violate federal or constitutional law.


 1. The Trial Court's Charge

 Plaintiff asserts that his constitutional rights to due process were violated when the trial court charged the jury as follows: "The law says that a person is presumed to intend the natural and probable consequences of his act." Petitioner claims that this instruction on the intent element of the murder charge erroneously created a conclusive presumption of intent. If so, this error would shift the burden of proof to the defendant and abrogate the requirement that the prosecutor prove every element of an offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) and Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). It has been said that the fact that a defendant has to carry any burden of persuasion on an essential element of the offense is enough to offend due process. Lopez v. Curry, 454 F. Supp. 1200 (S.D.N.Y.), aff'd, 583 F.2d 1188 (2d Cir. 1978).

 The Court in Sandstrom v. Montana, supra, found the presumptive language of a charge to be unconstitutional in that it could easily mislead a reasonable juror. Sandstrom's jurors were told that "(t)he law presumes that a person intends the ordinary consequences of his voluntary acts." They were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it. It was clear to the Supreme Court that a reasonable juror could easily have viewed such an instruction as mandatory. 442 U.S. at 515, 99 S. Ct. at 2454. Thus, the Court reversed the conviction.

 An erroneous instruction in a jury charge, however, does not deprive a criminal defendant of his constitutional rights per se if the charge is correct as a whole. Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973). The charge must be read in its overall context to see if a possible error which might shift the burden of proof to the defendant has been cured. Viewing the instructions as a whole in this case, there are many instructions which cure the alleged error and insure that the jury was not misled. United States v. Robinson, 545 F.2d 301, 306 fn. 7. (2d Cir. 1976). Part of the court's charge relevant to intent reads:

Let me repeat that definition: "A person acts intentionally with respect to a result or to conduct described by a Statute defining an offense when his conscious objective is to ...

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