
    The People of the State of New York ex rel. Mark Fein, Appellant, v. Harold W. Follette, as Warden of Green Haven Prison, Respondent.
   — In a habeas corpus proceeding, petitioner appeals from a judgment of the Supreme Court, Dutchess County, dated February 16, 1970, which dismissed the writ. Judgment affirmed, without costs. Under an indictment charging murder in the first degree, relator was found guilty of murder in the second degree and was sentenced to a prison term of 30 years to life. Since he was not found guilty of murder in the first degree and was not sentenced to death, the principles of law enunciated in Witherspoon v. Illinois (391 U. S. 510) and the fact that there was a statute (Judiciary Law, § 597) under which jurors with scruples against the death penalty could he excluded, are of no avail to relator (Witherspoon v. Illinois, supra, n. 21 [pp. 522-523]; Bumper v. North Carolina, 391 U. S. 543, 545; People v. Di Piazza, 24 N Y 2d 342, 354; People ex rel. McChesney v. La Vallee, 31 A D 2d 1, 4). We have considered the other points raised by relator and find them to be without merit. Christ, P. J., Rabin, Hopkins, Munder and Brennan, JJ., concur. [61 Misc 2d 826.]  