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March 6, 1984

CHARLES SCULLY, Superintendent, Greenhaven Correctional Facility

The opinion of the court was delivered by: STEWART


STEWART, District Judge:

 Petitioner George "Danny" Collins seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that the state trial judge's charge to the jury on intent impermissibly shifted the burden of proof to him, and that a detective's testimony at trial contained hearsay which was highly prejudicial. Petitioner claims that the alleged errors were so violative of due process that he was denied a fair trial as guaranteed by the Fourteenth Amendment.

 On the afternoon of May 9, 1977, three men attempted to hold up the jewelry store of Arthur and Ehrna Schwartz, located in Queens County, New York. Mr. Schwartz pulled out a licensed handgun and exchanged gunfire with one of the robbers, Robert Carter. The robbers then fled the store. Mr. Schwartz died shortly thereafter from gunshot wounds suffered in the exchange.

 Petitioner was arrested on June 21, 1977 and charged with murder in the second degree, attempted robbery in the first degree and criminal possession of a weapon in the second degree. At his arraignment, petitioner pled not guilty, and on March 19, 1979, the Queens County Supreme Court convicted him of all charges. He was sentenced to thirty-seven years to life. In subsequent proceedings, the appellate Division affirmed without opinion, People v. Collins, 84 A.D. 2d 689, 443 N.Y.S.2d 672 (2d Dept. 1981), and the New York Court of Appeals denied leave to appeal. People v. Collins, 55 N.Y.2d 828, 447 N.Y.S.2d 1040, 432 N.E.2d 148 (1981).

 Petitioner has properly exhausted available state remedies. The claims presented in the habeas petition are identical to those which were presented on appeal to the state courts. Petitioner, proceeding pro se, has relied extensively on the defense counsel's state appellate brief, and it is clear that the state courts were given a fair opportunity to pass upon petitioner's constitutional claims. Daye v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc).

 We first consider petitioner's claim that the judge's charge to the jury on intent violated the Supreme Court's holding in Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979), by improperly shifting the burden of proof on that issue to petitioner. We find this claim to be without merit.

 The court's instruction to the jury on intent was as follows:

 [Y]ou may infer that a person intends that which is the natural and necessary probable consequences of the act done by him, and unless the act was done under circumstances to preclude the existence of such intent, you have a right to find from the results on intention to effect it. (Tr.p. 359).

 Unlike the charge in Sandstrom, which instructed the jury, "The law presumes that a person intends the ordinary consequences of his voluntary acts," 442 U.S. at 517, (emphasis added), the charge in this case instructed the jurors that they "may infer" and "have the right to find." Moreover, as opposed to petitioner's claim that the "unless" clause of the instruction required him to come forward with evidence of circumstances negating intent, that clause has been held to ameliorate any burden-shifting meaning the preceding words could be misconstrued as having. Rivera v. Coombe, 683 F.2d 697, 701 (2d Cir. 1981), cert. denied, 459 U.S. 1162, 103 S. Ct. 805, 74 L. Ed. 2d 1007 (1983); Mancuso v. Harris, 677 F.2d 206, 210 (2d Cir. 1982), cert. denied, 459 U.S. 1019, 103 S. Ct. 382, 74 L. Ed. 2d 514 (1983); Washington v. Harris, 650 F.2d 447, 453 (2d Cir. 1981), cert. denied, 455 U.S. 951, 71 L. Ed. 2d 666, 102 S. Ct. 1455 (1982). In addition, almost immediately preceding the above instruction, the judge explicitly instructed the jury that the burden was on the state to prove the intent of the defendant beyond a reasonable doubt. See Nelson v. Scully, 672 F.2d 266 (2d Cir. 1982) (entire charge must be considered). We conclude, therefore, that the jury could not have construed the above charge as either creating an irrebutable direction or a mandatory burden-shifting presumption as to the issue of intent -- the due process infirmity present in the charge in Sandstrom. See People v. Getch, 50 N.Y.2d 456, 407 N.E.2d 425, 429 N.Y.S. 2d 579 (1980) (similar charge found to pass constitutional muster).

 As to petitioner's allegation that a detective's hearsay testimony was so prejudicial as to deprive him of a fair trial in violation of the Fourteenth Amendment, we find this claim a good deal closer and more troubling. However, in light of Mrs. Schwartz's in-court identification of petitioner as one of the robbers, we hold that the hearsay was not so prejudicial as to deprive petitioner of a fair trial. Accordingly, the petition is denied on this ground as well.

 At petitioner's third trial -- the first was declared a mistrial for unknown reasons; the second resulted in a hung jury -- the State called as a witness Detective Lyons, the officer who investigated the robbery and who arrested petitioner. Part of Lyons' testimony concerned the sale of a camera to Mr. Schwartz approximately one week prior to the robbery. Mrs. Schwartz had previously testified that she thought the robbers were the same persons who sold the camera to Mr. Schwartz a week earlier, though she was not present at the sale. (Tr. pp. 219-20). She had also testified that her husband recorded the names of the people from whom he bought merchandise in a ledger book that was used by the police to check for stolen property. The ledger book listed only Jimmy Johans as the seller of the camera. However, Lyons' testimony implied that both Johans' and petitioner's names were listed in the ledger.

 Q Detective Lyons, during the course of your investigation, did you have occasion to examine a ledger book?

 A Yes, sir, I did.

 Q Did you have occasion to examine a camera?

 A Yes, I did.

 * * *

 Q As a result of your investigation, did you ascertain who sold that camera to Mr. Schwartz?

 A Yes, sir, I did.

 Q Who sold that camera to Mr. ...

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