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November 16, 1981

Felix RAMIREZ, Petitioner,
E. W. JONES, Superintendent, Great Meadow Correctional Facility, Comstock, New York, Respondent

The opinion of the court was delivered by: MOTLEY

Petitioner, Felix Ramirez, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is presently incarcerated at the Great Meadow Correctional Facility at Comstock, New York. He was convicted upon a jury verdict of manslaughter in the first degree in the New York Supreme Court, Bronx County on May 4, 1978. Judge Warner sentenced him to an indeterminate 5-15 year period of imprisonment.

Petitioner appealed his conviction to the Appellate Division arguing, inter alia, that the court's charge to the jury on intent eliminated the People's duty to prove intent, or shifted the burden of proof on that element, thereby denying him due process of law and a fair trial. On July 17, 1980, the New York Appellate Division, First Department, affirmed petitioner's conviction in a 3-2 decision, with majority and dissenting opinions that reached the issue on its merits. People v. Ramirez, 76 App.Div.2d 115, 430 N.Y.S.2d 83 (1st Dept. 1980). On August 21, 1980, petitioner's application for leave to appeal to the New York State Court of Appeals was denied.

 The State Courts have thus had a "fair opportunity" to consider the alleged constitutional defect and petitioner, consequently, has satisfied the procedural prerequisite for all habeas corpus proceedings. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); United States ex rel. Nelson v. Zelker, 465 F.2d 1121 (2d Cir.), cert. denied 409 U.S. 1045, 93 S. Ct. 544, 34 L. Ed. 2d 497 (1972). This court will therefore reach the merits of his claim.


 Only a brief recitation of the facts is necessary to highlight the legal question at issue in this case. On November 11, 1976, petitioner and Estaban Casilla ("Smokey") had an argument over a woman at a social club in the Bronx. The argument became heated and, apparently in preparation for a fight, Smokey removed his jacket and handed it to his friend, Del Valle. When Smokey's back was turned, petitioner pulled out a knife and stabbed Smokey in the chest, mortally wounding him. Del Valle, having turned to put down Smokey's jacket, did not actually see the stabbing, but did see the knife in petitioner's hand upon turning back. (Tr. 128-30).

 Petitioner took the stand and testified at trial that at the time of the incident, he had been approached by five youths, including Smokey, who was carrying a police lock bar. *fn1" Petitioner testified that Smokey swung at him with the police lock bar, petitioner ducked to avoid the blow and, intending only to defend himself, stabbed Smokey. (Tr. 300-08).

 The crucial issue before the jury was thus not whether petitioner had stabbed Smokey, which was admitted, but rather what his intent was, i.e. to cause death (second degree murder), *fn2" to cause serious physical injury (first degree manslaughter), *fn3" or to defend himself from attack from Smokey (justification). *fn4"

 The trial court's entire charge on the definition of intent was as follows: *fn5"

"Let me now define this word intent for you.
A person is presumed to intend the natural and probable consequences of his acts. Criminal intent is an intent to do knowingly and willfully that which is condemned as wrong by law. A criminal intent may be inferred from all the circumstances of the case. It need not be established by direct proof to constitute the crime. There must not only be the act, but also the criminal intent and these must occur. The latter being equally essential with the former. The existence of criminal intent constitutes a question of fact for the determination by you. The burden of showing intent, the intent with which a crime has been committed rests upon the Prosecution to establish by evidence beyond a reasonable doubt. So where the law requires that the People must establish a specific or certain intent on the part of the one charged with the commission of the crime, the law does not expect or require for obvious reasons that intent must be proved by direct proof of an absolute certainty or with mathematical precision. Intent, and I mean criminal intent, is always an essential element to the commission of a crime such as we have here. It may be proved by direct evidence or it may be proved from circumstances surrounding the transaction or act itself, or it may be proved by a combination of both.
Well, what is intent? Intent is the frame of mind of the perpetrator of the act at the time it is committed. You must probe the mind. You may say to yourselves, well, how are we to determine what a person's intentions are? Well, ladies and gentlemen, we can only determine that by one's acts, by one's conduct, by what was done and what was said, if anything. You should consider what was allegedly done; what means were allegedly employed; the type of instrument allegedly used, if any; the part of the body allegedly attacked; and all these circumstances, and from these surrounding circumstances, you then are to determine the intention of the perpetrator at the time.
Under our law, every person is presumed to intend the natural and inevitable consequences of his own acts. The jury has the right to infer from the results produced, the intention to effect such result. The intent formed is a secret and silent operation of the mind, and its physical manifestation. The accomplishment of the thing determined upon one's mind is compelled from necessity to refer to the acts and physical manifestation of the intent exhibited by the results produced is the safest, if not the only proof of the fact to be ascertained. A person acts intentionally with respect to a result or to conduct described by Statute defining an offense when his conscious objective is to cause such result or to engage in such conduct."

 (Tr. 520-523) (emphasis added)

 Petitioner now claims, as he did before the State Appellate courts, *fn6" that this charge to the jury deprived him of due process of law, as guaranteed by the ...

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