What is the test for reviewing jury instructions in a criminal case?

When reviewing jury instructions, "it must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp, 414 U.S. at 146. The trial court has broad discretion to determine under what circumstances and how the charge should be given. United States v. Civelli, 883 F.2d 191, 195 (2d Cir. 1989).

B. Exhaustion of Remedies

Section 2254(b)(1) and (c) of 28 U.S.C. provide that a state prisoner seeking federal habeas corpus review of a state court conviction must first exhaust all remedies available in the state court. This requirement is grounded in principles of federal-state comity and "`respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions.'" Jones, 126 F.3d at 413 (quoting Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (in banc)). On this appeal, as it did below, the state concedes that Smalls fairly presented his current constitutional claims in the state court proceedings and exhausted his remedies within the meaning of section 2254(b)(1) and (c).

C. The Merits