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July 8, 1992

XENIA GREEN, Petitioner, against ROBERT ABRAMS, Attorney General of the State of New York, NEW YORK COUNTY DISTRICT ATTORNEY and COMMISSIONER OF CORRECTIONS, County of New York, Respondents.

The opinion of the court was delivered by: ROBERT W. SWEET

 Sweet, D. J.

 Petitioner Xenia Green ("Green") has applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a). For the reasons set forth below, her petition is denied.


 Green operated an establishment at 104 East 40th Street (the "Premises") where for a $ 50 to $ 100 fee she would administer or aid in administering colonics using a device invented by her. The device essentially consisted of two hoses connected to a speculum. One hose was also connected to a sink faucet and the other drained into a sink. The speculum was inserted into a client's rectum and regulated the directional flow of water, but not its pressure. Once the device was in place and the faucet turned on, a client would essentially control the flow of the water by crimping and uncrimping the drain hose. Green instructed her clients to release the drain hose when they felt pain or pressure. The Premises' faucets were capable of delivering water at a pressure of 40 to 50 pounds per square inch.

 At about 4:00 a.m. on March 1, 1986, police officers were summoned to the Premises by someone reporting that a man there had stopped breathing. When they arrived, the officers found a dead sixty-year old man. An autopsy performed on the decedent revealed that his cecum had ruptured several hours be fore his death, presumably while receiving a colonic. About eight liters of waste water had flowed through the rupture and flooded his abdominal cavity, resulting in a massive infection that caused his death. Death was estimated to have occurred between 12:00 midnight and 2:00 a.m.

 The decedent was a regular customer of Green's establishment. At approximately 9:00 p.m. the evening before he died, he gave himself a colonic while on the Premises. Between then and when he was found by the police, he did not leave the Premises. Green claims the decedent gave himself a second colonic at 3:00 a.m.

 Green was arrested and eventually charged with one count of second degree manslaughter, N.Y. Penal Law § 125.15, and one count of criminally negligent homicide, Id. § 125.10. She was tried before a jury in December 1987, and found not guilty of manslaughter, but guilty of criminally negligent homicide.

 At trial, the State's theory appears to have been that Green was aware of the risks involved in colonics; that, in light of these risks, her device was unreasonably dangerous and such an injury was foreseeable; and that she failed to summon medical help once someone was injured. In support of this theory, the State introduced a number of items seized from the Premises into evidence, including a pamphlet co-authored by Green acknowledging the possible dangers of colonics, the device invented by Green, a medical diploma for a Dr. Stim, a medical encyclopedia, patient files, appointment books, and other literature describing various methods of administering colonics.

 Expert testimony at Green's trial showed that her device was inherently dangerous and that, as a practitioner, Green should have been aware of its dangers. Primarily because of the danger of rupture, most colonic devices introduce water in comparatively small, controlled quantities at a low pressure. Repeated colonics, as well as age, tend to weaken and desensitize a person's colon, increasing the risk of rupture.

 Green showed that, before the night in question, she had administered over 3,300 colonics without incident. One of the detectives investigating the case also testified that Green had told him that the decedent usually would administer his colonic himself and that Green's only role would be to hook the intake hose to the faucet. He usually would undergo a daily colonic for three straight days at the beginning of each month.

 On March 3, 1988, Green was sentenced to five years probation and a $ 5,000 fine. As a condition of her probation, Green could not administer colonics. Green was not told by when the fine had to be paid. See Trans. 37-38. That day, Green was also presented with a form specifying the conditions of her probation, which she signed. The form set forth the above sentence and the terms of her probation, but also failed to state a date by which the $ 5,000 fine and a $ 100 mandatory surcharge had to be paid.

 Green appealed her conviction to the Appellate Division. That court allowed Green to proceed in forma pauperis.

 On May 16, 1991, Green appeared before the sentencing judge for allegedly having violated her parole. At the hearing, her counsel stipulated that she had not paid the fine nor the surcharge. Her Probation Officer testified that she knew of the fine and her obligation to pay it. The Probation Officer also stated that Green was continuously unemployed and was living on the generosity of her friends and on what she made by selling jewelry on the street. During the examination of the Probation Officer, the sentencing court asked her whether she knew if Green had ever received gifts for "spiritual counseling". The Probation Officer answered "No". Trans. 10 (May 16, 1991).

 It was also established at the hearing that Green told the Probation Officer she would not pay the fine until she had paid her lawyer and that Green had never provided the Probation Office with any financial statements or other documentation showing she was indigent. Furthermore, Green submitted an affidavit stating that she had been living at 108 East 38th Street since her conviction. Green had always told her Probation officer that she lived at another address.

 At the net hearing, on June 21, 1991, Green offered to pay $ 300 then and $ 100 a month thereafter until the $ 5,100 was paid. She also stated that her attorney, but not the attorney representing her at the hearing, had told her that she did not have to pay the fine until her appeal was over and her probation period had expired.

 The court found Green's payment offer "totally unacceptable". Trans. 9 (June 21, 1991). It instead found that Green had not been forthright with the Probation Office and the court, that she was living in a high income neighborhood, and that she had been soliciting funds by offering religious assistance to others. Overall, it found her refusal to pay the fine "simply a willful refusal to be governed by the mandate of the court," id. at 9, and resentenced her to one year in prison.

 Execution of the sentence was stayed for thirty days to allow Green time to appeal. She then filed another appeal to the Appellate Division, which was consolidated with her still pending trial appeal. The Appellate ...

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