concurring in the result:
I concur in the result, but write separately to express my respectful disagreement with what I believe is an ill-advised application of the forfeiture rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In this Circuit we have been confronted with a series of habeas corpus petitions submitted to district courts after criminal convictions have been affirmed by New York state courts without opinion. Until today we have been willing to hold that silent affirmance by the state courts implies reliance on a state law procedural default only when the defendant in the state court failed to observe “a well-known rule of trial practice, whose observance would have afforded the trial court an opportunity to avoid the problem” complained of in the habeas corpus petition. Taylor v. Harris, 640 F.2d 1, 2 n. 3 (2d Cir.), cert. denied, 452 U.S. 942, 101 S.Ct. 3089, 69 L.Ed.2d 958 (1981). In Martinez v. Harris, 675 F.2d 51 (2d Cir.), cert. denied, — U.S. —, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982), and Taylor v. Harris, supra, the defendant had failed to make a contemporaneous objection to the jury charge. In Gruttola v. Hammock, 639 F.2d 922 (2d Cir.1981), where the Appellate Division’s affirmance was cryptic, though not entirely silent, id. at 929, the defendant had failed to move for suppression of identification testimony. The assumption that the state appellate court had rested its affirmance on a procedural default, brought to its attention by the prosecutor’s appellate brief, was entirely warranted in those cases, since the requirement of contemporaneous objection was well established and prompt objection would have afforded opportunity to correct any error that may have occurred.
Our inference of state court reliance on procedural default in these cases was also consistent with the Supreme Court’s promulgation of the forfeiture rule. In Sykes, *756the Court presumed that unexplained affirmance by the state courts rested on procedural default — failure to object to the-admission of a confession — because the Court could confidently say that the state courts’ presumed reliance on procedural default was “quite consistent with a line of Florida authorities interpreting the rule in question as requiring a contemporaneous objection.” 433 U.S. at 85-86, 97 S.Ct. at 2506. See County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 150, 99 S.Ct. 2213, 2221, 60 L.Ed.2d 777 (1979) (determining that rejection of challenge to sufficiency of evidence and to evidentiary presumption did not rest on state procedural grounds in the absence of a “clear contemporaneous-objection policy”).
In this case, petitioner is not complaining about the jury charge. He does not dispute that the evidence warranted the trial judge’s instruction concerning the lesser included offense of manslaughter. His claim of constitutional error is that his attorney was not given notice that such an instruction would be given. This lack of notice, he contends, deprived him of his Sixth Amendment right to the effective assistance of counsel because his attorney was required to argue to the jury without knowledge of all the offenses for which the jury was to be permitted to convict.
In 1979, when petitioner was tried, there was no “clear” New York procedural requirement of a contemporaneous objection when a trial court fails to tell counsel in advance of summation the offenses the jury will be permitted to consider. It is doubtful that there was any requirement. Petitioner’s complaint does not challenge the “submission” of a lesser included offense, for which contemporaneous objection is required, N.Y.Crim.Proc.L. § 300.50(1) (McKinney 1982), nor does it appear to concern a “ruling or instruction,” for which contemporaneous protest or its equivalent is required to preserve an issue for appeal, N.Y.Crim.Proc.L. § 470.05(2) (McKinney 1971). It is true that four years after petitioner’s trial the Appellate Division ruled that failure to object to lack of notice, prior to summation, concerning a lesser included offense at a bench trial forfeits appellate consideration of the error, People v. Wachs, 93 A.D.2d 846, 461 N.Y.S.2d 73 (2d Dep’t 1983). However, petitioner’s counsel can hardly be held to have failed in 1979 to comply with a requirement not announced until four years later, even if we assume that the New York courts would extend Wachs to a jury trial.
When the majority in this case reckons with petitioner’s claim that his lawyer was denied notice of the lesser included offense instruction, it suggests that the trial judge might have allowed a second jury summation if defense counsel had requested one after hearing the jury charge. I think most trial lawyers would not relish the opportunity to reappear before a jury to argue that at most the evidence supports a verdict of manslaughter after having made an initial argument that the defendant is entirely innocent. The obvious difficulties of making such alternative arguments are markedly exacerbated when the fallback position is put forth as an afterthought, rather than as part of a carefully conceived unitary presentation. But even if the opportunity for a second summation would have been adequate, petitioner has not forfeited his constitutional claim by failing to seek such an “opportunity.” His claim is that the Sixth Amendment assured him an opportunity to have his counsel make a coherent argument to the jury with prior notice of all the offenses the jury would be permitted to consider. He did not forfeit that claim by failing to seek a different summation opportunity, one which he views as constitutionally deficient.
I fully agree with the majority that to whatever extent petitioner may be considered to be complaining about the 'trial court’s jury instruction, his failure to make a contemporaneous objection is a forfeiture under Sykes. But petitioner’s real claim is lack of notice prior to summation, and the issue is whether silent affirmance by the Appellate Division should be presumed to rest on a forfeiture of that claim. I recognize the possibility that the majority might be right in assuming that the Appellate *757Division relied on a procedural default. But none of us can be certain of that fact or even reasonably sure. It seems to me just as likely that the Appellate Division did not even pause to consider procedural default and affirmed because the error was harmless in the circumstances of this case.1 That, of course, would be a ruling on the merits.
What concerns me about the majority’s inference from state court silent affirmance in this ease is the prospect that in some future case where a procedural default is arguable, but not clear, the Appellate Division will silently affirm after deciding that there was neither procedural default nor a valid claim on the merits, and we will then affirm the denial of habeas corpus relief because we mistakenly presume state court reliance on procedural default even though we think a constitutional error affecting substantial rights has occurred. Perhaps identifying that risk now will serve as a caution to some future panel not to presume state court reliance on procedural default when the default is unclear but the merits of the constitutional claim are strong. Of course, the state courts could easily remove all ambiguity in their summary affirmances by indicating, with no more than a citation to N.Y.Crim.Proc.L. § 470.-05(2) (McKinney 1971), their reliance on procedural default. Until they do so, I think it is the safer and sounder course to presume that a silent affirmance rests on procedural default only when the defendant failed to observe “a well-known rule of trial practice,” Taylor v. Harris, supra, 640 F.2d at 2 n. 3, such as the requirements for objection to a jury charge or evidence, or for most pretrial procedural challenges.
Believing that silent state court affirmance cannot be presumed to indicate reliance on procedural default in this case, I nonetheless concur in the judgment of af-firmance, agreeing with Judge Nickerson that if an error of constitutional dimension occurred, it was harmless beyond a reasonable doubt. Defense counsel fully argued his contention that the evidence of his client’s participation in the victim’s death was unworthy of belief. What counsel lacked was an effective opportunity to argue that, even if the jury credited the evidence, no offense greater than manslaughter was proven. That deficiency, which would have been prejudicial if the jury has convicted petitioner of murder, became harmless when the jury convicted on the lesser included offense of manslaughter.
. As Judge Nickerson pointed out, the Appellate Division, when it affirmed in 1981, might have thought that the failure to give notice, which is required by state law, N.Y.Crim. Proc.L. § 300.10(4) (McKinney 1982), presented an issue available for review without objection at trial. Prior to the affirmance of petitioner’s conviction in the state court, the Appellate Division for the First Department had held that failure to give counsel timely notice of a lesser included offense instruction constituted “deprivation of a fundamental right,” People v. Richards, 67 A.D.2d 893, 894, 413 N.Y.S.2d 698, 699 (1st Dep’t 1979), and the New York Court of Appeals had stated that in some circumstances “no objection is necessary to preserve a point of law for appellate review when the procedure followed at trial was at basic variance with the mandate of law prescribed by Constitution or statute.” People v. Thomas, 50 N.Y.2d 467, 471, 429 N.Y.S.2d 584, 586, 407 N.E.2d 430, 432 (1980).