Second Department (hereinafter "Appellate Division"). On his direct appeal, petitioner raised the same claims that he has brought in the instant petition. Specifically, he argued that the evidence was insufficient to support the jury's finding that he, beyond a reasonable doubt, constructively possessed the four deposits of crack-cocaine found in the bodega. Petitioner also contends that, as a result of the trial court's refusal to deliver a circumstantial evidence charge to the jury, he was denied a fair trial.
On July 27, 1992, the Appellate Division unanimously affirmed petitioner's conviction. People v. Martinez, 185 A.D.2d 365, 586 N.Y.S.2d 300 (App. Div. 1992). The Appellate Division held that the prosecution had proven beyond a reasonable doubt that petitioner constructively possessed the vials of crack-cocaine found in the bodega and that the jury's verdict was not against the weight of the evidence. Id. Additionally, the Appellate Division concluded that no circumstantial evidence charge was necessary because the state had adduced both direct and circumstantial evidence of petitioner's guilt. Id. at 366. On October 6, 1992, the New York State Court of Appeals denied petitioner's application for leave to appeal. People v. Martinez, 80 N.Y.2d 975, 591 N.Y.S.2d 144, 605 N.E.2d 880 (1992).
The procedural history of this petition having been recounted, the Court now turns to address whether it may reach the merits of petitioner's claims.
I. Exhaustion of State Remedies
Under 28 U.S.C. § 2254, a federal court may not review the substantive merits of a state prisoner's claims for collateral relief unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b) (1988); see Rose v. Lundy, 455 U.S. 509, 510, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); Picard v. Connor, 404 U.S. 270, 275-76, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). This exhaustion requirement "springs primarily from considerations of comity" and "recognizes that state courts, no less than federal courts, are bound to safeguard the federal rights of state criminal defendants." Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
The Second Circuit Court of Appeals has set forth a two-prong test for determining whether a petitioner seeking federal habeas relief has exhausted his or her state remedies. First, an applicant must have "given the state courts a fair opportunity to pass upon his federal claim." Daye, 696 F.2d at 191; see Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991) (citations omitted). Specifically, in order to satisfy this requirement, the petitioner must make a minimal showing that he has "informed the state court of both the factual and the legal premises of the claim he asserts in federal court." Daye, 696 F.2d at 191 (citing Picard, 404 U.S. 270 at 276-77); see also Levine v. Commissioner of Correctional Services, 44 F.3d 121, 124 (2d Cir. 1995) (noting that a federal issue may be presented to the state courts in any of a number of less than precise ways); Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (citations omitted).
Second, a petitioner typically must exhaust all available avenues of state appellate review before applying for a writ of habeas corpus in federal court. See Daye, 696 F.2d at 190-91. In other words, the petitioner must have "fairly presented" his or her federal constitutional claim to the highest court of the state. Gatto v. Hoke, 809 F. Supp. 1030, 1034 (E.D.N.Y.) (citing Daye, 696 F.2d at 191), aff'd, 986 F.2d 500 (2d Cir. 1992).
In the instant case, petitioner, on appeal to both the Appellate Division and the Court of Appeals, explicitly raised the constitutional claims relating to each issue now brought before the Court on habeas review. Therefore, the requirement of exhaustion has been satisfied.
II. Analysis of the Merits of the Petitioner's Claims
A. Sufficiency of the Evidence
Petitioner contends that the prosecution failed to adduce sufficient evidence to prove beyond a reasonable doubt that he constructively possessed the 287 vials of crack-cocaine that the police recovered from the bodega. In challenging the sufficiency of the evidence supporting his conviction, petitioner "bears a heavy burden." United States v. Weiss, 930 F.2d 185, 191 (2d Cir.), cert. denied, 502 U.S. 842, 116 L. Ed. 2d 100, 112 S. Ct. 133 (1991). In order to overturn a state conviction on insufficiency grounds, a federal habeas court must find that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 324, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Weiss, 930 F.2d at 191 (citations omitted). In making this determination, "a federal habeas court is required to consider trial evidence in the light most favorable to the State." Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied, 488 U.S. 929, 102 L. Ed. 2d 334, 109 S. Ct. 316 (1988); see also Weiss, 930 F.2d at 191. "This means that we must credit every inference that could have been drawn in the State's favor, . . . whether the evidence being reviewed is direct or circumstantial." Reddy, 846 F.2d at 869 (citations omitted).
The charges that petitioner challenges all require the prosecution to prove that petitioner "knowingly and unlawfully" possessed 287 vials of crack-cocaine. See N.Y. Penal Law §§ 220.09, 220.16, 220.18 (McKinney 1989). Since petitioner did not have these vials in his physical possession at the time of his arrest and had not been seen selling them, the prosecution was obligated to prove that petitioner constructively possessed the vials. Constructive possession under New York law requires a showing that the defendant "exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized." People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 (1992); see also N.Y. Penal Law § 10.00(8) (McKinney 1987); people v. Whitehead, 159 A.D.2d 741, 552 N.Y.S.2d 685 (App. Div. 1990) (holding that a grocery store clerk exercised sufficient dominion and control to constitute constructive possession of fireworks where the fireworks were next to or in the general proximity of the clerk who was in a plexiglass-enclosed area to which the public did not have access); People v. Simms, 175 A.D.2d 144, 572 N.Y.S.2d 34 (App. Div. 1991) (where defendant was seen by an undercover officer alone in the precise area from which contraband was recovered and the contraband was located where the public did not have free access); cf. People v. Pearson, 75 N.Y.2d 1001, 557 N.Y.S.2d 269, 556 N.E.2d 1076 (1990) (defendant merely being seen coming from a back room of a place open to the public is insufficient to constitute constructive possession of contraband found there).
A careful review of the trial record, viewed in a light most favorable to the prosecution, reveals that the evidence was sufficient to support the jury's finding that the petitioner was guilty beyond a reasonable doubt of constructively possessing the 287 vials of crack-cocaine. The prosecution presented direct evidence that petitioner sold four purple-capped vials of crack-cocaine to an undercover officer shortly after selling the same colored vials to two other customers. Although at the time of petitioner's arrest, the second shelf beneath the register contained only vials with gold or black caps, rather than vials with purple caps like those petitioner had sold the undercover officer, this fact in and of itself is insufficient to undermine the jury's verdict. A jury reasonably could have assumed that the purple-capped vials that had initially been on the second shelf had either all been sold or moved. Relevant to the drawing of this inference was police testimony that at the time the police entered the bodega to arrest petitioner, he was leaning below the register counter in the same manner as he had when he had obtained the vials sold to the undercover officer and the two customers. Moreover, approximately 164 of the other vials of crack-cocaine found in the bodega were purple-capped, so that the jury could justifiably have refused to conclude that petitioner's sale of the crack-cocaine had nothing to do with the presence in the bodega of the remaining vials.
Additionally, petitioner's position at the register counter put him in close proximity of the 287 vials of crack-cocaine. The police testified that petitioner was the only one at the counter both at the time the undercover officer observed him selling drugs and at the time of his arrest. Testimony that the police were able easily to remove the wooden planks on the plywood platform on which petitioner was standing, under which the largest stash of vials was found, could reasonably have caused a jury to deduce that petitioner had, and intended to have, easy access to these vials. Moreover, a jury could have viewed petitioner's testimony that he never gave a straw to anyone purchasing a soda as self-serving, intended only to evade the fact that crack-cocaine vials were found in the straw container.
Additionally, petitioner sold crack-cocaine to the undercover officer and the previous customers without speaking, yet knew exactly how many vials to give each customer in exchange for the amount of money tendered. A rational jury could, therefore, have discredited petitioner's testimony that he knew nothing about selling drugs. Given the large number of small bills on petitioner's person at the time of his arrest, a jury could also have found specious both petitioner's testimony that he had just cashed his unemployment checks and any possible inference that petitioner had only sold crack-cocaine to the undercover officer and the two customers. This evidence also lends credence to the jury's conclusion that petitioner constructively possessed beyond a reasonable doubt the vials of crack-cocaine.
Accordingly, petitioner's claim that the evidence supporting his criminal possession of the vials was insufficient must be denied.
B. Failure to Deliver Circumstantial Evidence Charge
Petitioner also contends that he was denied a fair trial because of the trial court's refusal to deliver the circumstantial evidence charge that he had requested. Petitioner's challenge, however, relies entirely on New York law and does not implicate any federal constitutional right.
Under New York law, if the evidence of a defendant's guilt is exclusively circumstantial, a jury must be so advised and instructed to view the evidence with particular care. People v. Sanchez, 61 N.Y.2d 1022, 1024, 463 N.E.2d 1228, 1229, 475 N.Y.S.2d 376, 377 (1989) ("it must appear that the inference of guilt is the only one that can fairly and reasonable be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence"); People v. Barnes, 50 N.Y.2d 375, 379-80, 406 N.E.2d 1071, 1073-74, 429 N.Y.S.2d 178, 180 (1980); see also Taxiarhopoulos v. Spence, No. 92-0790, 1992 U.S. Dist. LEXIS 20110, at *22 (E.D.N.Y. December 28, 1992). A circumstantial evidence charge is not required under New York law when both direct and circumstantial evidence is presented at trial. Barnes, 50 N.Y.2d at 379-80, 406 N.E.2d at 1073-74, 429 N.Y.S.2d at 180; People v. Burgos, 170 A.D.2d 689, 567 N.Y.S.2d 103, 103-4 (App. Div. 1991); see also Taxiarhopoulos, No. 92-0790, 1992 U.S. Dist. LEXIS 20110, at *23. In this case, the Appellate Division rejected petitioner's challenge to the jury charge, finding the evidence against him to be both direct and circumstantial in nature. Martinez, 586 N.Y.S.2d at 300. The Court declines to reassess this question, as "it is not the province of a federal habeas court to reexamine state court determinations on state law questions." Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991). "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id. (citations omitted).
With respect to whether petitioner's federal constitutional rights were violated, the Court notes that the constitutional right to due process does not require a court to give a special jury instructions when a case is founded on circumstantial evidence. Holland v. United States, 348 U.S. 121, 140, 99 L. Ed. 150, 75 S. Ct. 127 (1954); see, e.g., Taxiarhopoulos, 92-0790, 1992 U.S. Dist. LEXIS 20110, at *23. Indeed, the Supreme Court has held that "circumstantial evidence . . . is intrinsically no different from testimonial evidence." Holland, 348 U.S. at 140. Due process "simply requires that before convicting a defendant, the jury must be satisfied on the defendant's guilt beyond a reasonable doubt from all of the evidence in the case." 1 Leonard B. Sand et al., Modern Federal Jury Instructions P 5.01 (1990) (quoting Instruction 5-2, Direct and Circumstantial Evidence). A review of the jury charge in this case indicates that this point was clearly stated. In addition, the trial court relayed in considerable detail the requirements for finding that petitioner constructively possessed drugs. Thus, the court's charge, taken as a whole, properly instructed the jury on reasonable doubt and on the elements of the crime that had to be proved. See Cupp v. Naughten, 414 U.S. 141, 146-147, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973); see, e.g., Trail v. Kelly, 93-5753, 1994 U.S. Dist. LEXIS 10150, at *3 (S.D.N.Y. July 21, 1994).
For the forgoing reasons, petitioner's application for a writ of habeas corpus is denied in its entirety, and the petition is dismissed. The Court finds that the petition presents no question of substance for appellate review, and therefore a certificate of probable cause will not issue. Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990) (per curiam).
Dated: Uniondale, New York
May 30, 1995
Joanna Seybert, U.S.D.J.