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March 30, 1994

SAMIR ZADA, Petitioner,
CHARLES SCULLY, Superintendent, Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: CHARLES L. BRIEANT


 Petitioner Samir Zada seeks habeas corpus relief under 28 U.S.C. § 2254 from his state conviction on June 26, 1975 following trial by jury in the County Court of Orange County, after a change of venue from Rockland County due to pretrial publicity. *fn1" Petitioner had been tried and convicted of murder in Putnam County in 1973 (the "prior conviction"). An appeal was pending on that conviction during the 1975 trial and sentencing is at issue here.

 In the 1975 trial (the case reviewed here), petitioner was found guilty of murder in the second degree, kidnapping in the first degree, robbery in the first and second degree, and burglary in the second degree, and all other counts in the indictment. He was sentenced to a term of twenty-five (25) years to life. People v. Zada, 73/119, Index # 575-1975, Sentencing Minutes, June 26, 1975 (Ingrassia, J.) (the "Sentencing Minutes").

 Petitioner's conviction was affirmed on direct appeal in People v. Zada, 82 A.D.2d 926, 440 N.Y.S.2d 672 (2d Dep't 1981), leave to appeal to the Court of Appeals denied (Aug. 18, 1981).

 In 1980, the Appellate Division, Second Department, of the New York State Supreme Court reversed petitioner's prior (1973) conviction in People v. Zada, 75 A.D.2d 77, 428 N.Y.S.2d 480 (2d Dep't 1980) because of a claimed defect in the jury charge concerning an optional inference available to the jury based on recent possession of the fruits of the crime. That Court ordered a new trial, which the prosecution declined to pursue because of unavailability of witnesses after the long passage of time.

 On April 14, 1992, petitioner's application for an order to vacate his sentence in the 1975 case pursuant to New York Criminal Procedure Law § 440.20 on the grounds of alleged reliance by the sentencing court on the 1973 (subsequently reversed) conviction was denied. People v. Samir Zada, State of New York, County Court, Orange County, Index No. 575-75, Opinion and Order (April 14, 1992) (Byrne, J.) (the "County Court Opinion").

 Petitioner contends that (1) consideration by the sentencing judge of the prior conviction, then on appeal and subsequently reversed, was an error of constitutional magnitude, (2) the disparity of sentence between petitioner and co-defendants who pleaded guilty was sufficiently great to constitute a federal constitutional violation, (3) a pretrial order permitting the use of his prior conviction for impeachment purposes made it impossible for him to testify, and (4) that petitioner was not competent to stand trial.

 The events underlying petitioner's 1975 conviction involve robbery of the victim in his home and kidnapping by car leading to the victim's murder in the woods adjacent to the road after his escape from the trunk of the car. Unlike two codefendants, petitioner, then seventeen (17) years old with no prior criminal record at the time of this incident, *fn2" proceeded to trial in 1975. One co-defendant, also then seventeen years old, drove and remained in the car during the incident. Unlike the other two, he apparently did not participate in either the decision to murder the victim or in the act itself; he was the primary prosecution witness in this trial and also testified against petitioner in the prior trial. He pleaded guilty to robbery in the second degree and burglary in the first degree, was sentenced as a Youthful Offender to a term of from zero to four (0-4) years and served one and a half years.

 The other co-defendant, an adult, entered a plea of guilty to two counts of manslaughter in the first degree for which he was sentenced to twenty (20) years and for which he appears to have served eight (8) years.

 Petitioner asserts that the sentence he is now challenging is constitutionally tainted because the trial judge considered the probation (pre-sentence) report *fn3" mentioning the prior conviction then on appeal and later reversed. The Court finds no merit in this claim.

 During the sentencing hearing, the judge, who had also been the trial judge, stated as the basis for his sentence that:

. . . This Court has heard the testimony and finds it was overwhelming against you. . . I'm going to impose a mandatory minimum term because of the character of this act, because of the viciousness, because of the brutality of the act, because of the premeditation involved as this Court heard from the testimony, the deliberateness of the act, the inexcusability. This Court feels that you must be removed from society and that you must be removed for as long a period as possible.

 Sentencing Minutes at 20-22. As the County Court judge noted when declining to vacate the sentence, it is clear that the sentencing court was "most concerned with and emphasized the horrible nature of the crime for which the defendant was convicted and his conduct as adduced in the course of the trial." County Court Opinion at 2. It is obvious that, although the sentencing judge had "read . . . [and] concurred ...

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