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July 11, 1983;

CHARLES CHAMPELLE, Petitioner, against PHILIP COOMBE, JR., Respondent.

The opinion of the court was delivered by: DUFFY



 Charles Champelle was convicted of robbery in the first degree on October 9, 1979, after a jury trial in New York State Supreme Court, Bronx County, before Ivan Warner, Justice. Mr. Champelle was sentenced as a second felony offender to seven and one-half years to fifteen years. Champelle appealed his conviction on three grounds: one, that the jury instruction on intent violated the due process clause of the Fourteenth Amendment; two, that the court's failure to charge the jury on assault in the third degree deprived petitioner of effective representation of counsel guaranteed by the Sixth and Fourteenth Amendments; and three, that the court's use of a pre-1973 felony conviction to sentence him as a predicate felon violated the constitutional prohibition against ex post facto laws. Champelle's conviction and sentence were affirmed by the Appellate Division, First Department without opinion and leave to appeal to the Court of Appeals was denied. He now petitions this court for a writ of habeas corpus. For the reasons discussed below, the writ is denied.

 1. Erroneous Jury Instruction

 Petitioner argues that the jury charge impermissably shifted the government's burden of proving its case beyond a reasonable doubt. The pertinent portions of the charge read: "a person is presumed to intend the natural and probable consequences of his act," Record at 297, and "under our law, every person is presumed to intend the natural and inevitable consequences of his own voluntary acts. . . ." Record at 298. Petitioner argues that these instructions effectively either removed the issue of intent from the jury's consideration, or improperly shifted the government's burden to prove all elements of a crime beyond a reasonable doubt. See Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979) ("Sandstrom"); County Court of Ulster County v. Allen, 442 U.S. 140, 157, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979). Defense counsel failed to object to the "presumption" language. *fn1" Petitioner first asserted that the charge was unconstitutional on his direct appeal.

 The state challenges petitioner's claim on the merits and alternatively contends that petitioner's failure to object to the charge at trial resulted in a waiver of his rights to federal habeas corpus review on this ground. I address the waiver argument first.

 Under New York law, an exception not explicity raised at trial may not be initially considered on appeal. N.Y. Crim. Proc. Law § 470.05(2) (McKinney 1971). This statute affords the trial court an opportunity to correct any alleged errors at a time when they are correctable. Clark v. Coombe, 544 F. Supp. 799, 803 (S.D.N.Y. 1982) (citing People v. Robinson, 36 N.Y.2d 224, 228, 326 N.E.2d 784, 786, 367 N.Y.S.2d 208, 211 (1975)). A narrow exception to the general New York rule allows an appellate court to consider an objection first raised on appeal if the objection involves an alleged violation of a fundamental constitutional right. N.Y. Crim. Proc. Law § 470.15(g)(2); People v. Patterson, 39 N.Y.2d 288, 295, 347 N.E.2d 898, 383 N.Y.S.2d 573 (1976), aff'd, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977).

 Petitioner's Sandstrom claim does present a fundamental constitutional issues: the government's obligation to prove a defendant guilty beyond a reasonable doubt. The Appellate Division, therefore, had the option of reviewing the merits of Champelle's appeal, despite defense counsel's failure to object at trial.The court, however, affirmed without opinion. The state argues persuasively that this decision did not constitute a decision on the merits. See Klein v. Harris, 667 F.2d 274, 285 (2d Cir. 1981); Gruttola v. Hammock, 639 F.2d 922, 929 (2d Cir. 1981). Rather, the state contends, it was implicit in the affirmance without opinion that the court did not consider the merits of petitioner's claim.

 When a state appellate court affirms without opinion the Second Circuit has been reluctant, even when fundamental constitutional rights are at issue, to treat the court's silence as an adjudication on the merits. Taylor v. Harris, 640 F.2d 1, 2 n.3 (2d Cir. 1981), cert. denied, 452 U.S. 942, 69 L. Ed. 2d 958, 101 S. Ct. 3089 (1977); Martinez v. Harris, 675 F.2d 51, 54 (2d Cir. 1982) ("we feel justified in assuming that the Appellate Division does not exercise its discretion [under N.Y. Crim. Proc. Law § 470.15] and decide a case solely on the merits of a claim unless it says so.") (emphasis added). The Appellate Division did not indicate that it's affirmance was a decision on the merits. Accordingly, I will assume that petitioner's failure to object precluded review on the merits.

 When a procedural default forms the basis for a state court's refusal to review the merits of a petitioner's claim, the two-step review of Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977) is triggered. To preserve a claim for federal habeas review, a petitioner must show "cause" for his procedural default and resulting "prejudice." Id. In the instant case, petitioner has put forth no "cause," for his noncompliance with New York's contemporaneous objection requirement. In fact, petitioner never gave any explanation for his failure to object to the jury instruction on intent at trial.

 Even assuming cause had been established, petitioner has made no showing of actual prejudice resulting from the contested jury instruction. To demonstrate prejudice, petitioner relies on Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979) in which the court's charge to the jury was phrased in terms similar to the charge herein. *fn2" In Sandstrom, the Supreme Court reversed the petitioner's conviction because it found that the jury instruction impermissibly shifted the government's burden of proof beyond a reasonable doubt to the petitioner. The Second Circuit has taken a narrow view of Sandstrom and recently laid out a two-step process by which a petitioner's claim may be evaluated. A reviewing court first examines whether a particular portion of the trial court's charge runs afoul of Sandstrom; then, the court determines whether, in the context of the entire charge, the defect was "cured." Rock v. Coombe, 694 F.2d 908, 915 (2d Cir. 1982). If the defect is "cured" by other language in the charge, a petitioner has suffered no "prejudice", because it is the entire charge and not only an isolated portion that the jury hears before it retires for deliberation.

 The portions of the court's charge that refer to presumptions of intention violates Sandstrom. When viewed in its entirety, however, the charge "cured" the initial defect. See Cupp v. Naughten, 414 U.S. 141, 146-47, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973).

 The court's instructions on the intent issue were "pointed, emphatic, repeated, and direct." Nelson v. Scully, 672 F.2d 266, 272 (2d Cir. 1982), cert. denied, 456 U.S. 1008, 102 S. Ct. 2301, 73 L. Ed. 2d 1304 (1982). Language immediately following the first improper portion defines and stresses the importance of the intent element of a crime:

 criminal intent is an intent to do knowingly and wilfully 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.

 Record at 297 (emphasis added). The same passage unequivocally states that the burden to prove criminal intent beyond a reasonable ...

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