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August 14, 1992

ERNEST HICKS, Petitioner, against DANIEL A. SENKOWSKI, Respondent.

Johnson, Jr.

The opinion of the court was delivered by: STERLING JOHNSON, JR.

JOHNSON, District Judge:

 Petitioner Ernest Hicks was convicted after a jury trial in New York State Supreme Court, Kings County, of Criminal Possession of a weapon in the Third Degree. *fn1" On June 25, 1985, Hicks was sentenced, as a mandatory persistent felony offender, to a prison term of fourteen years to life. The New York Appellate Division, Second Department, unanimously affirmed the conviction on March 14, 1988. On April 11, 1988, the New York Court of Appeals denied petitioner's application for leave to appeal.

 Thereafter, petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The sole basis for the instant petition is Hicks' claim that he was denied due process of law when the trial court, as part of the jury charge, instructed the members of the jury in accordance with New York Penal Law § 265.15(3) that they may, but are not required to, infer that defendant possessed a weapon from the fact that he was present in the automobile where such weapon was found.

 The New York State courts upheld the constitutionality of the permissive inference as applied to him. People v. Hicks, 138 A.D.2d 519, 526 N.Y.S.2d 127 (2d Dep't 1988), leave to appeal denied, 71 N.Y.2d 969, 529 N.Y.S.2d 80 (1988). Because petitioner has exhausted his state remedies, this court can address the merits of his claim. Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971).


 1. The Trial

 A. The People's Case.

 The People introduced testimony by the two arresting New York City Police ("NYPD") Officers Daniel Carmosin and Clinton Long. Officer Carmosin testified that upon receiving an anonymous phone call at 6:30 p.m. on June 3, 1984, he and Officer Long drove to St. John's Place and Albany Avenue in Brooklyn in search of a grey Ford LTD that contained a gun in the carburetor. *fn2" (Trial Transcript (hereinafter "TT") at 155-57). The officers located the car which was parked on the corner of Albany Avenue and Lincoln Place, one block away from St. John's Place. (TT at 155, 168). Upon their initial observation of the car, the police officers saw no passengers in it. (TT at 185).

 They observed the car for approximately a half hour until 7:45 p.m., when Ernest Hicks entered the car and drove away. (TT at 168, 169). The officers followed him for several blocks until Hicks stopped at a red light. (TT at 159). Officer Carmosin then approached the car and asked Hicks to exit the car. (TT at 160). Hicks immediately complied with the Officer's request. (TT at 169). Officer Long frisked Hicks and found that he was unarmed. (TT at 169, 170).

 Officers Carmosin testified that, in addition to finding the gun in the carburetor, the officers also found a rental agreement in the glove compartment indicating that the Ford LTD belonged to Hertz, a car rental company, and had been rented to an "Earl Alston [sic]." *fn3" (TT at 173, 174). The rental agreement indicated that payment had been made with a Visa card in the name of "Earl Alston [sic]." (TT at 180, 181) Carmosin also testified that at the time of defendant's arrest, he possessed a New York State driver's license in the name of "Earl Alston [sic]." (TT at 182).

 The testimony of Police Officer Clinton Long was essentially identical to that of Officer Carmosin. Long testified that after receiving a phone call he and Carmosin went to Albany Avenue and St. John's Place to find a grey Ford LTD. (TT at 138). They found a car fitting that description on Lincoln Place and Albany Avenue. (TT at 140). The officers parked their car and kept surveillance over the Ford LTD for about a half hour until defendant entered the car and drove away. (TT at 140, 141). They followed Hicks for two blocks and then asked him to step out of the car. (TT at 141, 142). After Long frisked the defendant, Officer Carmosin looked inside the carburetor and recovered the gun. (TT at 141, 142, 147). Thereafter, Long arrested the defendant. (TT at 142, 146.) Long also testified that the Ford LTD belonged to a car rental company and was rented to an "Earl Alston [sic]." (TT at 145, 146).

 The People also presented the testimony of NYPD Detective John Solowski who qualified as an expert in ballistics. Solowski asserted that there was evidence of discharge from the gun found in the car. (TT at 190, 191). He also stated that he did not take tests for fingerprints. (TT at 193, 194). Solowski, however, testified that it was not normal procedure to take fingerprints ...

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