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March 7, 1994

LOUIS F. MANN, Superintendent, Shawangunk Correctional Facility, Respondent.

The opinion of the court was delivered by: JACK B. WEINSTEIN

 Weinstein, J.:

 Petitioner seeks a writ of habeas corpus on the ground of inadequacy of counsel. His trial attorney failed to present to the jury a theory of defense against a robbery by the deceased that provides a rule of law theoretically less onerous to the defendant than that of self-defense from an attack. Distinguished present appointed defense counsel has made a clear case for petitioner on academic grounds. Nevertheless, that a different defense concept of the law would have changed the jury's view of the matter seems so remote as to require, under current law, dismissal of the petition.


 Shortly before 6:00 p.m. on January 24, 1982, Aurelio Lebron, the petitioner, and Johnny Lopez were inside the apartment of Secundina Arvello, Lebron's common-law wife, on Willoughby Street in Brooklyn. Lopez had come to collect a debt from Lebron. The two proceeded to argue. During their dispute, Lebron produced a sawed-off shotgun. He fired once, causing immediate death. Lebron told Arvello to call the police. Having admitted to the arresting officer that he had shot Lopez, he was charged with Murder in the Second Degree (N.Y. Penal Law § 125.25(1)) and Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03).

 A. The Pre-Trial Hearing

 The next person to arrive on the scene was Detective George Rice. He testified that after he observed the body, the owner of the apartment, Secundina Arvello, permitted him to search the apartment. Detective Rice then took Lebron to the stationhouse.

 Defense counsel chose not to cross-examine Officer Graham and only asked to see Detective Rice's notebook. The prosecutor advised the court that he intended to offer as evidence at trial Lebron's statement to Officer Graham and the shotgun. Defense counsel saw no reason to object, and the court agreed that they were admissible.

 The prosecutor then advised the court that Lebron had also made a statement to Police Officer Nieves at the stationhouse, but that he had no intention of using it in the People's case-in-chief since it was suppressible. When defense counsel inquired whether the prosecutor planned to use the statement for cross examination purposes, the prosecutor stated that this was a "possibility."

 B. The Trial

 The People's case consisted of the testimony of five witnesses: Secundina Arvello, Officer Graham, Detective Rice, Officer Michael Albanese (a ballistics expert), and Dr. Carlos Eliazo (an associate medical examiner).

 Arvello testified that some time after 2:00 p.m. on January 24, 1982, she, was awakened by noises in the kitchen. She heard an unfamiliar male voice say that he "didn't care to kill or die" and that he had shot a man with a shotgun before. The voice also said, "remember you have a wife and daughter" and that Lebron owed him money. She than heard Lebron say that the man was "putting things on him that he didn't do." She then heard a "blast" and when she looked into the kitchen, Lebron told her to call the police.

 The testimony of Officer Graham and Detective Rice was substantially identical to their hearing testimony. Detective Rice added, however, that when he rolled Lopez' body over, no weapons were visible from the outside. Only after unzipping three jackets and a vest did the Detective find a sheathed hunting knife and a sawed-off shotgun in the deceased's waistband.

 No witnesses were called on behalf of the defense. Defense counsel stated that after discussions with Lebron, Lebron had decided that he did not wish to testify on his own behalf.

 In his summation, defense counsel argued that based on the testimony of the prosecution's witnesses, the jury could reasonably conclude that Lopez had threatened to kill Lebron and that Lopez had the means to carry out the threat at hand. Counsel further argued that one could rationally infer that Lopez revealed his weapons to Lebron and that the observation of these weapons coupled with the verbal threats on Lebron's life justified Lebron's actions as an act of self-defense in the face of the threat of imminent deadly physical force.

 The prosecutor, in summation, commented on Secundina Arvello's reluctance to testify against her common-law husband and on her crying when she first took the stand. He asked the jury to keep in mind Arvello's bias in favor of Lebron in assessing her credibility. The prosecutor also pointed out that Lebron's sawed-off shotgun was illegal since it had a defaced serial number and that such a weapon is easily concealed, cannot be traced, and is designed for use against people. He argued that the following scenario could reasonably be inferred: 1) the murder weapon was kept unassembled in the apartment, 2) after Arvello went to sleep, Lebron removed it from its storage place under the cushions of a sofa and assembled it, and 3) Lebron, who was "armed and waiting", concealed the weapon while arguing with Lopez, and then pulled it out quickly and fired.

 The jury found Lebron guilty of Murder in the Second Degree. In accordance with the trial court's instructions, no verdict was returned on the weapons possession charge. In January of 1983, Lebron was sentenced to a term of imprisonment of twenty years to life. His brief in the Appellate Division raised the following two claims:

1) Prosecutorial misconduct during summation deprived him of a fair trial as guaranteed by the state and ...

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