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CLARK v. COOMBE

August 11, 1982

GEORGE CLARK, Plaintiff,
v.
PHILIP COOMBE, Superintendent of Eastern Correctional Facility, Respondent



The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, D.J.

 George Clark, petitioner, now serving a sentence of 10 to 20 years, consecutively to any time due on a prior conviction, imposed following his conviction upon a jury verdict for robbery in the first degree entered in the Supreme Court, Bronx County, New York, seeks his release upon a federal writ of habeas corpus pursuant to 28 U.S.C., section 2254. He charges that the judgment of conviction is void for violation of his federal constitutional right to due process of law in that (1) the judge by charging the jury that petitioner was presumed to intend the natural and probable consequences of his acts shifted to petitioner the burden of proof of intent, an essential element of the crime charged; (2) the judge unfairly and erroneously marshalled the evidence; and (3) prosecutorial misconduct was committed outside the record. The judgment of conviction was unanimously affirmed upon appeal to the Appellate Division, Second Department *fn1" and leave to appeal to the Court of Appeals was denied. Thereafter, with respect to his claim of prosecutorial misconduct, petitioner applied to the trial court for relief under New York State's Criminal Procedure Law which was denied. Leave to appeal to the Appellate Division was also denied.

 Clark was indicted and convicted of robbery in the first degree for acting in concert with another in robbing Ellis Saffan of his property at his laundromat during the course of which the robber displayed a pistol. In substance, the People's proof established that at about 7:00 p.m. on February 8, 1978, petitioner and the other person, Lee, *fn2" entered the laundromat and while Saffan was working in the back room fixing machine parts Lee entered and waived an automatic pistol in his face stating, "This is the real thing"; *fn3" that he then shoved Saffan against the rear wall and putting the gun to his head seized and took Saffan's keys and wallet with all its contents.

 The robbery lasted about five minutes. In the initial stage, petitioner was in a brightly lit area where James Cobbs, an employee of the laundromat, was working. Cobbs saw petitioner walk from that area to the partially opened back door and open it. Saffan testified that the petitioner then yelled to Lee, "Hurry up. Let's get out of here." *fn4" Cobbs who had followed the petitioner to the back room was stopped by petitioner who said that Saffan and the other fellow (Lee) were "talking business." *fn5"

 Cobbs left the laundromat and telephoned the police from a nearby store. As he was returning to the laundromat, he saw petitioner and the other man (Lee) about 20 feet from the laundromat crossing the street. One of them told him to "mind [your] business"; *fn6" in the laundromat, he found Saffan locked in the back room and released him. Both men then hurried to the street. As Saffan started to walk toward petitioner, he and Lee started to run away. Saffan then unsuccessfully searched the area for his wallet and keys. Upon the arrival of a patrol car, Saffan described the two men to the police officers, then closed the store and went to his home. At home, Saffan received a telephone call during which the caller inquired whether he had notified the police. Saffan told his then unknown caller that he had only notified credit card companies to cancel his cards. The caller then said, "We want to return your property. Sorry for what happened. I am going to do you a favor. I want to give you back your things. I know you need them and everything else. How about making me an offer?" *fn7"

 Saffan said he didn't know what to offer since they took everything; that the only items he needed were his keys, license and registration. Thereupon the caller said he would telephone again after talking to his friend. A half hour later the man called back, and after inquiring whether Saffan had been in touch with the police and upon Saffan's denial that he had, the caller said he wanted $50. Saffan offered $25, which the caller rejected saying, "You got to do better than that." *fn8" The caller then said he would get in touch with Saffan again after talking to his friend. Soon Saffan received a third call from the same person; they settled for a $35 payment and some discussion ensued as to a meeting place to conclude their transaction. Again, the caller said he had to talk to somebody and it was finally arranged that Saffan was to make the payment at a designated doughnut shop.

 Saffan entered the shop and seated himself nearby under the observation of a detective. The petitioner soon entered and seated himself at the counter. He then approached Saffan who recognized him as one of the two men in the laundromat -- the one who spoke to the holdup man. Petitioner said, ". . . I got your stuff here . . . and your wallet is in the bag." *fn9" Saffan examined the contents and was satisfied everything was there except the money and the keys; petitioner said he would return the keys first thing in the morning. Upon a prearranged signal, the detective arrested petitioner. The recovered wallet contained Saffan's driver's license and registration, two Visa cards, bank identification cards, a Bond's credit card and a VA hospital card.

 Clark testified in his own behalf. His version of events was that he had washed his work clothes at a girlfriend's apartment near the laundromat; that on his way there to dry his clothes, which were in a shopping bag, he stopped off at a grocery store next door to the laundromat to get change. There by chance he met Stephen Lee with whom, on occasion, he had played basketball. They entered the laundromat and petitioner further testified that he placed the shopping bag containing his clothes in the front area of the store, removed the clothes and placed them in a dryer in the rear which he engaged. He then returned to the front where he picked up the empty shopping bag to put it on a folding table. Up to that time, he had not seen where Lee had gone but then happened to look in the back room, the door of which was partially open and, in petitioner's own words, "just stuck my head in the first time and I happened to see complainant upon the wall with his hands on the wall." *fn10" He pulled his head back out and was about to go to the dryer in which he had placed his clothes when he bumped into Cobbs, who asked him what he was doing back there. Because petitioner had "seen what was happening in the back [he] told him [Cobbs] to mind his business and . . . walked past him to get my clothes out of the dryer, put in the bag." *fn11" Petitioner continued his testimony that on his way out he went back again and "this time Mr. Lee was closer to [Saffan]; this time with his gun to his head, and I grabbed his wrist and . . . said you got what you came here for. Why don't you leave the man alone and get out of here?" *fn12" Petitioner further testified he then left the laundromat and while walking Lee ran up to him. They had a few words dealing with what happened at the laundromat; that Lee, after going through the wallet, threw most of the papers on the ground; that he picked some of them up and told Lee he would send them back to the man since one "has to go through a whole lot of trouble replacing them," *fn13" and so he did pick up a number of items. Thereafter, he went to his girlfriend's apartment.

 Later, he went to a pool room at 165th Street and Ogden Avenue where, about a half hour later, Lee walked in and they had a conversation about what happened at the laundromat. Lee asked petitioner what he intended to do with the papers he had picked up; petitioner replied that he had not yet decided. Lee then gave him the rest of the papers.

 Petitioner further testified that he then telephoned Saffan and told him that he had come across his papers and would leave them at the grocery store next to the laundromat; that Saffan asked him to bring them to another place which he refused because he "didn't want to get involved with what happened"; *fn14" that this conversation was interrupted because he was causing confusion among nearby pool players. Accordingly, he went to a nearby grocery store where he placed a second call to Saffan to complete the interrupted conversation. In that second call he told Saffan about his property and Saffan suggested they meet at a doughnut shop. They later met outside the doughnut shop where petitioner handed over the papers. Saffan then walked into the doughnut shop followed by petitioner, who, after seating himself at the counter, was arrested by the police.

 Petitioner denied that while in the laundromat he was trying to help Lee rob Saffan or that he asked or received money from Lee. He also denied that he asked Saffan for $50, or that Saffan offered him money for the return of his papers. He testified that in the laundromat he told Cobbs to mind his own business but denied repeating it outside in the street because he did not see Cobbs again. He denied that he told Saffan that he threw his keys away.

 The foregoing summary of the evidence establishes that a rational juror could readily find that the People had established the essential elements of the crimes charged beyond a reasonable doubt. *fn15" However, petitioner contends, based upon the Supreme Court ruling in Sandstrom v. Montana,16 that the instruction to the jury that a person is presumed to intend the natural and probable consequences of his acts relieved the State of its burden of proof on the issue of intent and shifted it to the defendant, and thus was constitutionally defective and deprived him of due process of law. The State not only disputes his claim upon the merits but contends that the petition for federal writ of habeas corpus relief must be dismissed under New York's contemporaneous objection rule, since petitioner did not except to the instruction at the trial level on the ground now urged, and has failed to show cause and prejudice under Wainwright v. Sykes17 and its most recent successor cases. *fn18"

 The State's contention must be upheld. While it is true that an exception was taken to the court's charge on intent, this was cast in terms of an evidentiary error rather than one of constitutional violation. Counsel's exception was to the court's "definition of intent . . . that it was not sufficiently done to explain the intent the defendant must have in order for him to be convicted of each and every one of the crimes charged in the indictment." *fn19" There was no suggestion that the objection was based on the ground that the instruction relieved the State of its burden of proof on the issue of intent or that the burden was shifted to the defendant. The purpose of an explicit exception or objection is to afford the trial court the opportunity to effectively correct any alleged errors at a time when they are correctable. *fn20" Accordingly, under New York law, an exception not explicitly raised at trial may not be considered the first time upon appeal. *fn21" There is a narrow exception to this general rule which applies in the instance of an alleged violation of a fundamental constitutional right. *fn22" However, the fact that this case was tried in October 1978, some eight months before Sandstrom was decided or that the issue was presented by petitioner upon appeal to the Appellate Division as a violation of federal and state constitutional rights after Sandstrom was decided, *fn23" does not save the day for petitioner. This was not an instance where failure to object at the trial level on federal constitutional grounds can be excused because the instruction had been deemed valid at the time of the trial and had only been called into question by an intervening Supreme Court decision. Sandstrom was not a new doctrine under New York law. As the State Court of Appeals observed:

 
Sandstrom did not alter the law of this State. For more than a century, the charge condemned in Sandstrom has been held by this court, to be erroneous as a matter of State law. Thus the defendant's failure to object cannot be excused on the ground that he was confronted at trial with a practice held or deemed to be valid which was only called into question by a Supreme Court decision ...

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