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September 22, 1992

HERMAN STRAUCH, Petitioner, against John P. Keane, Superintendent, Respondent.

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

Sweet, D.J.

 Petitioner Herman Strauch ("Strauch"), a state prisoner, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Upon the opposition of the State and all the prior proceedings heretofore had, the petition is dismissed.

 Prior Proceedings

 By Westchester County Indictment Number 79-01148 Strauch was charged with the crimes of murder in the second degree, criminal possession of a weapon in the second degree and unlawful possession of marijuana. After a trial in the County Court, Westchester County (Zittel, J., sitting with a jury), Strauch was convicted by a jury as charged. Pursuant to that conviction, Strauch was sentenced on March 20, 1981 to the following terms of imprisonment: eighteen years to life for murder in the second degree; five to fifteen years for criminal possession of a weapon in the second degree, and a fine of $ 100 for unlawful possession of marijuana.

 A notice of appeal was duly filed. Strauch was assigned counsel but successfully moved the appellate court to substitute J. Radley Herold, Esq., who had been his trial counsel, to prosecute the appeal. Strauch interposed a brief, the captions of the first four points on appeal being identical to the first four grounds of this petition. The People interposed a brief. The judgment of conviction was affirmed without opinion by the Appellate Division, Second Department, New York State Supreme Court, on July 13, 1984. People v. Strauch, 103 A.D.2d 1048, 479 N.Y.S.2d 3911 (2d Dep't 1984). The New York Court of Appeals denied Strauch leave to appeal to that court on October 2, 1984. People v. Strauch, 63 N.Y.2d 949, 483 N.Y.S.2d 1034 (1984).

 Thereafter, Strauch sought his first writ of habeas corpus pursuant to 28 U.S.C. § 2254, Strauch v. Sullivan, No. 85 Civ. 3922 (DNE). Adopting the recommendations set forth in the April 2, 1987 Report of Magistrate Judge Nina Gershon, the petition was dismissed on August 18, 1987 by the Honorable David N. Edelstein on the grounds that it contained several "unexhausted" claims. See Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). The dismissal was without prejudice to the filing of an amended petition with the deletion of the unexhausted claims. The district court denied Strauch's request for a certificate of probable cause by order dated October 16, 1987, as did the Court of Appeals for the Second Circuit by order dated January 15, 1988.

 Strauch then filed his second petition for habeas corpus relief. Strauch v. Sullivan, No. 88 Civ. 1774 (RWS). The first ground of this petition resurrected the Sandstrom claim of error in its own right and by virtue of a "spill-over" theory (that the jury instruction on presumed intent by virtue of the possession of an illegal weapon "spilled over" into the jury instruction on murder). Its second ground was identical to Ground One of the instant petition, which alleges that the trial court erred in admitting testimony of patrolmen Cretera and Riolo as to statements made by Strauch. The decision and order of this court dated October 14, 1988 reached the merits of both claims. The second ground, relevant here, was denied as presenting "questions of state evidentiary law, . . . devoid of a constitutional question." Strauch v. Sullivan, 88 Civ. 1774 (RWS), slip op. at 13 (S.D.N.Y. Oct. 14, 1989). An appeal was taken as to this decision, but only with respect to asserted error in this court's treatment of the claimed Sandstrom infirmity. The denial of habeas corpus relief was unanimously affirmed by the Second Circuit on November 15, 1989. Strauch v. Sullivan, 891 F.2d 278 (2d Cir. 1989).

 Strauch then noticed a pro se motion returnable February 26, 1991 before the Appellate Division of the New York State Supreme Court. On this motion, Strauch sought to reargue the 1984 appeal and to bring on a claim that he received ineffective assistance of appellate counsel on that appeal (a claim treated by that court as a petition for a writ of error coram nobis). Both applications were denied by a decision and order of the Appellate Division dated March 14, 1991.

 On February 11, 1992 Strauch filed his third petition for a writ of habeas corpus, which is presently before this court. Service on the State was made on April 17, 1992. The State's opposing papers were filed on May 13, 1992.

 The petition sets forth four grounds upon which habeas relief is sought: (1) the improper admission of the defendant's statements without the notice required under state law, (2) the admission of statements made by Strauch while in "custody" without Miranda warnings, (3) the admission of the fruits of these statements, that is, the bullets which Strauch retrieved the night of the murder of his wife, and (4) the admission of the testimony of the medical examiner.

 The Underlying Conviction

 The convictions arose out of the shooting of Juliana Strauch ("Juliana"), Strauch's wife, on November 6, 1979. Strauch and an acquaintance, Kenneth Cooper ("Cooper") had been drinking and smoking marijuana at the time of the shooting. At 12:37 a.m., Strauch called the police and reported that there had been an accident and that he thought his wife might be dead. Three police cars were dispatched to Strauch's home.

 Strauch confessed to the police that he owned the pistol from which the shots that killed his wife were fired, and admitted that he did not have a permit for the gun. Strauch also told various police officers that Cooper had accidentally discharged the gun while examining it, and later became scared and fled. Strauch was arrested for possession of a firearm and marijuana. Cooper was apprehended by the police and supplied evidence which caused Strauch to be charged with second-degree murder.

 Cooper was the State's chief witness at trial. Officer Charles Cretera ("Cretera"), the first patrolman to arrive at the scene, also testified for the State. Cretera was permitted to testify about certain statements made to him by Strauch although the statements had been suppressed pursuant to New York law at a pretrial hearing to the extent that they varied from the statements summarized in a pretrial notice to Strauch. Strauch did not testify. His defense was that he had not shot ...

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