Cassellsv.Ricks

United States District Court, S.D. New YorkJul 21, 2000
99 Civ. 11616 (AJP) (S.D.N.Y. Jul. 21, 2000)

99 Civ. 11616 (AJP)

July 21, 2000


OPINION AND ORDER


PECK, Magistrate Judge.

Petitioner Robert Cassells, represented in this proceeding by the Legal Aid Society, seeks a writ of habeas corpus from his conviction of third degree criminal possession of a controlled substance, for which he was sentenced to six to twelve years imprisonment. (Pet. ¶¶ 1-4.) Cassells alleges that his conviction was based on insufficient evidence in violation of his due process rights under the Fifth and Fourteenth Amendments, because two housing police officers testified that they seized six pinkish-reddish Ziplock bags filled with crack or rock cocaine from Cassells and placed them in an evidence envelope, but when the police chemist opened the evidence envelope and tested its contents, the baggies contained cocaine in powdered form, and the State introduced into evidence six pinkish-reddish Ziplock bags filled with powdered cocaine. (Pet. ¶ 12; Cassells Br. at 9-14.)

The parties have consented to decision of this petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons discussed below, because the State presented constitutionally sufficient evidence that Cassells possessed cocaine, Cassells' habeas petition is DENIED DENIED.

FACTS Trial: The Drug Sale and the Eyewitnesses' Trial Testimony

On March 10, 1995, at about 5:00 p.m., Officers Zedekiah Jennings and Kurt Duncan, uniformed housing police officers, were conducting a building check or "vertical" (i.e., a process in which officers check an entire building from the roof to the basement) when they observed, from a distance of five to six feet, Cassells engaged in a drug transaction with a Hispanic male on the ground floor of 90 Avenue D, Manhattan. (Jennings: Trial Transcript ["Tr."] 157-60; Duncan: Tr. 250-53.)

Specifically, Officer Jennings testified that he clearly saw Cassells with "penny" or "nickel" sized, square, "[p]inkish, reddish" miniature Ziplock bags in his hand which he extended towards the alleged buyer. (Jennings: Tr. 159-63, 173, 178-79, 204-05.) Officer Jennings also testified that he knew that these bags contained crack cocaine based on the "[n]umerous arrests" (approximately two hundred) he had previously made, his training, his "professional experience" (over two years as a housing police officer at the Manhattan Mobile Tactical Unit), and based on the "size, color [of] and the shade of the contents" in the Ziplock bags. (Jennings: Tr. 155-57, 163-64, 195-96.) Officer Duncan, a housing police officer for approximately two and a half years, testified that he saw "a male Hispanic holding money with his hand outstretched giving the money to the male black [i.e., Cassells] and the male black giving something to the male Hispanic." (Duncan: Tr. 252.) Both officers further testified that the Hispanic buyer was passing U.S. currency to Cassells. (Jennings: Tr. 159, 205; Duncan: Tr. 252.)

New York courts have described "square, one-inch, plastic, ziplock bags" as "the `hallmark' of a drug transaction." E.g., People v. Whitney, 224 A.D.2d 648, 648, 639 N.Y.S.2d 416, 416 (2d Dep't 1996).

Officer Jennings' testimony was significantly similar at the Huntley hearing. There, he testified that he "saw the defendant giving drugs to a male Hispanic. . . . He was the guy it was almost in his hand — when he saw me he pulled it back." (Jennings: Huntley Hearing Transcript ["H."] 7.) Jennings further testified that he saw "[c]rack cocaine" in Cassells' hand in "pink reddish" "little glassine" baggies, that were a "penny to a nickel size." (Jennings: H. 7, 14.) However, upon cross examination, when asked if he actually observed the crack cocaine in these pinkish-reddish bags, Jennings testified that he "couldn't see the white." (Jennings: H. 15-16.) In addition, when asked if the cocaine he observed was "rocked," Jennings responded, "Uh huh." (Jennings: H. 16.) He also said that the material he seized "wasn't like that [in the evidence bag, which] is crushed." (Jennings: H. 16.)
At the conclusion of the Huntley hearing, the judge found Officer Jennings to be "an entirely credible witness." (H. 25.) The judge found probable cause to approach and arrest Cassells and that Cassells' statements were spontaneous and thus admissible. (H. 27-29.)

As the housing officers approached, Cassells put his hand to his mouth, apparently swallowing the baggies. (Jennings: Tr. 159, 164-65; Duncan: Tr. 257-58.) Officer Jennings asked Cassells what he did with the drugs, and Cassells said he swallowed them. (Jennings: Tr. 164-65; Duncan: Tr. 258.) Officer Jennings said to Cassells "[D]o you know that crack, cocaine, could bust inside your stomach[?]" and cause death. (Jennings: Tr. 165; Duncan: Tr. 258.) According to the officers, Cassells responded, "[I]t was only two bags of marijuana." (Jennings: Tr. 165; Duncan: Tr. 258, 283.)

Officer Jennings handcuffed Cassells and placed him against a wall. (Jennings: Tr. 165, 180; Duncan: Tr. 258, 278.) Officer Jennings searched Cassells' "pockets and his outer-most garment" as well as the ground, but did not conduct a strip-search. (Jennings: Tr. 179-80.) Officer Jennings did not locate any illegal drugs. (Jennings: Tr. 179-80.) The Hispanic "buyer" escaped from Officer Duncan's custody, and Officer Duncan chased after him. (Jennings: Tr. 165, 206-09, 219-20; Duncan Tr. 258-59, 261, 279-80.)

Officer Jennings took Cassells to the precinct and searched Cassells, although he again did not conduct a strip-search. (Jennings: Tr. 166, 181, 211, 221; Duncan: Tr. 267, 281-82.) Officer Jennings and his sergeant decided that Cassells required medical care because if he had in fact swallowed baggies filled with cocaine, his health was at risk. (Jennings: Tr. 166, 182; see also Duncan: Tr. 262.)

When they arrived at Beekman Downtown Hospital, a doctor asked Cassells why he was there. (Jennings: Tr. 167; Duncan: Tr. 263.) Cassells responded that he had swallowed two bags of marijuana; Officer Jennings disagreed and told the doctor that Cassells had swallowed crack. (Jennings: Tr. 167, 212; Duncan: Tr. 263, 271.) The doctor gave Cassells a black liquid to induce vomiting; according to the officers, Cassells stated that he would not drink it because he was "already going down." (Jennings: Tr. 167, 213; Duncan Tr. 263-64.)

Cassells underwent x-rays at the hospital. (Jennings: Tr. 213-15.) According to Officer Jennings, Cassells was not required to take off his t-shirt for the x-ray; rather, "[t]hey told him lift his shirt up, and he lifted it up to" his chest area. (Jennings: Tr. 215.) Medical examiner Dr. Yvonne Milewski testified that she had examined two x-rays of Cassells' abdomen, lower chest and pelvis, which revealed no foreign objects. (Milewski: Tr. 136, 139, 140, 143-44.) Dr. Milewski testified that small plastic Ziplock bags filled with marijuana or cocaine "don't routinely show up on x-rays of this penetration," nor would the narcotics be reflected on the x-rays. (Milewski: Tr. 140-41, 143-44.) Marijuana or cocaine contained in small Ziplock bags also would not show up in Cassells' bloodstream, unless the bags opened and the cocaine escaped into his bloodstream. (Milewski: Tr. 150-52.)

At the Huntley hearing, Officer Jennings testified, "I can't recall. I don't believe he was x-rayed. I am not sure." (Jennings: H. 21.) Although he was by Cassells' side the entire time at the hospital, Officer Duncan could not recall with certainty whether the hospital staff took x-rays of Cassells. (Duncan: Tr. 267, 271-73.)

While at the hospital, a nurse instructed Cassells to remove his clothing so that the doctor could further examine him. (Jennings: Tr. 169; Duncan: Tr. 265.) Cassells was wearing a "grey sweat hooded shirt" and a "snug," "tight" white t-shirt. (Jennings: Tr. 169; Duncan: Tr. 265, 267.) Cassells was uncuffed, he removed his t-shirt, and held the t-shirt "snug right here on his righthand [waist] side." (Jennings: Tr. 169, 215, 216; Duncan: Tr. 265.) After the doctor examined Cassells, as Cassells put on his t-shirt, according to the officers, "six little glassine bags of crack" fell out of Cassells' t-shirt from his right shoulder area and onto his lap. (Jennings: Tr. 169, 185, 216, 225; Duncan: Tr. 265-66.) Officer Jennings exclaimed, "God damn," and according to the officers, Cassells replied: "yeah, y'all got me, y'all got me" (Jennings: Tr. 169, 217-18; Duncan: Tr. 265, 269.)

Officer Jennings also testified to the following conversation with Cassells as he was taking him back from the hospital to the precinct.


On the way back to the base he [Cassells] was in a van [and asked] what you all charging me with. I replied saying you being charged with criminal sale of a controlled substance. He replied back to me saying how can you charge me with criminal sale of a controlled substance if you ain't catch the other guy meaning the male Hispanic. He said I'm not stupid, I have been around here before.

(Jennings: Tr. 177-78, see also Duncan: Tr. 269-70.)

Trial: Chain of Custody Evidence

The State presented evidence to establish a chain of custody, i.e., that the drugs Officers Jennings and Duncan seized from Cassells at the hospital were the same drugs tested by the police chemist and offered into evidence.

Officer Jennings testified that he confiscated six pinkish-reddish glassine baggies. (Jennings: Tr. 169-70; Duncan: Tr. 265-66, 269.) He "vouchered" them, i.e., placed the six baggies in a brown narcotics envelope, wrote his name, shield number, tax number, and voucher number on the envelope, sealed the envelope, and prepared a property clerk invoice. (Jennings: Tr. 170-71.) Officer Jennings kept the narcotics envelope in his pocket from the time he sealed it until he sent it to the police lab to be tested. (Jennings: Tr. 170-71.)

Police chemist Kim Back Sui testified that she picked up the narcotics envelope from the evidence room on March 16, 1995, six days after Cassells' arrest. (Sui: Tr. 228, 231-33, 239-49.) When Sui examined the narcotics envelope, the information on the envelope, the evidence voucher and the analysis request form all matched, and "[a]ll seals [on the envelope were] in tact [sic]." (Sui: Tr. 233-34.) Sui also testified that she did nothing to change the physical appearance of the drugs, i.e., she did not "crush" any rocks of cocaine. (Sui: Tr. 234, 239.) The contents of the six pinkish-reddish baggies tested positive for cocaine. (Sui: Tr. 235-36.)

Compare People v. McLourin, 157 Misc.2d 783, 785, 598 N.Y.S.2d 911, 912 (Sup.Ct. N.Y. Co. 1993) (describes the "procedures employed by the New York City Police Laboratory to determine whether a [crack] mixture contains 500 milligrams or more of cocaine" as follows: "the contents [of the crack vials] are ground into a fine powder using a mortar and pestle . . .").

At trial, the prosecution introduced into evidence the six pinkish-reddish envelopes containing cocaine that Officer Jennings had vouchered. (Tr. 177.) Officer Jennings testified that the baggies introduced into evidence were the same size and dimension as the baggies he recovered from Cassells. (Jennings: Tr. 174.) When the prosecutor asked if the condition of the contents of the narcotics envelope was the same as when seized from Cassells, Officer Jennings responded that "[i]t's the same but the only difference is that instead of the crack inside the bags it's in powder form right now." (Jennings: Tr. 171-72.) He reiterated that originally "[i]t was like in rock forms." (Jennings: Tr. 172-73.) On voir dire examination by the defense, when asked if he could swear that the substance in these baggies was the same substance that he seized from Cassells, Officer Jennings testified that "[i]t's not in the same form now," but explained that "[i]t's the same stuff but I know that when you carry it to the lab they have to crush it up in order to test it because they can't test it in a rock form." (Jennings: Tr. 175.) Sui testified that the six pinkish-reddish baggies introduced into evidence were the ones she examined at the police lab. (Sui: Tr. 234, 238-39.) Sui testified that crack cocaine is the "base form" of cocaine, is solid, "[s]omething like rocks," whereas powdered cocaine is cocaine chloride, which is the "salt form of cocaine." (Sui: Tr. 237-38.)

Trial: The Defense Motion to Dismiss the Indictment and Closing Arguments

At the close of Sui's testimony, Cassells' counsel moved to dismiss the indictment or to refuse to admit the pinkish-reddish baggies into evidence because they contained powdered cocaine despite the fact that the officers testified that they confiscated crack or rock cocaine from Cassells. (Tr. 242.) The trial judge ruled: "That becomes a question for the jury both as to credibility and how it might have happened if it happened. So, it's not a ground for dismissal. It's not a ground for inadmissibility of the exhibit, but it's a ground for you to argue to the jury in summation [about] the difference." (Tr. 242.) The court admitted the baggies with the powder cocaine into evidence. (Tr. 242-43.)

The defense rested without calling any witnesses. (Tr. 289.)

Defense counsel's summation stressed the contradictions and untruthfulness of the police testimony, especially the rock to powder cocaine issue. (E.g., Tr. 297.) For example, he told the jury that:

He [Officer Jennings] knew this was crack because it was a rock. Remember? Yes, it was crack because it was a rock. There were rocks there and that's a sign of crack. Now, look at these and see if you see any rocks.
The police chemist came in and testified. She was the State's witness. This was the exact thing she received. No rocks. That's lie number one. He lied to you.

(Tr. 297-98; see also id. at 299, 304.) Defense counsel also accused the officers of inventing the inculpatory statements they attributed to Cassells:

They have no case. There is no case here. So what they do in order to make a case is have him make statements feeling that well who is the jury going to believe a cop or . . . [a] man buying marijuana.

(Tr. 303.)

Neither the prosecutor nor Cassells' attorney had asked Sui at trial whether crack cocaine could change into powdered cocaine or if powdered cocaine can exist in a clumped or rock form. The prosecutor, however, argued in summation, without evidentiary support, that between Cassells' arrest and when the cocaine was tested, the cocaine could have been stored under something heavy and that "there are hundreds of reasons as to why the rock forms of the cocaine that he submitted are no longer in rock form in the drugs that you see here before the court today." (Tr. 333.) He also argued that the cocaine introduced into evidence was "granular" and that cocaine in "rock form" has an unstable molecular structure and can shatter. (Tr. 333-34.)

The prosecutor also answered the defense's other summation points. He said that the police had no motive to lie (e.g., Tr. 331), that the hospital medical records supported the police testimony (e.g., the medical records show that Cassells told the doctor that he swallowed two bags of marijuana) (Tr. 329-30), and that if the police were lying and trying to frame Cassells, Officer Jennings would not have contradicted the police chemist. (Tr. 331-32.)

Trial: The Judge's Charge

The trial court instructed the jury that the single count in the indictment charged criminal possession of a controlled substance in the third degree in violation of Penal Law § 220.16, and that the indictment alleged that Cassells "on or about March 10, 1995, knowingly and unlawfully possessed a narcotic drug, to wit cocaine with intent to sell the same." (Tr. 356-57.) The balance of the court's charge referred to "cocaine," not crack cocaine or powder cocaine. (Tr. 356, 358.) The defense did not object to the charge. (Tr. 362.)

Verdict and Sentence

On December 11, 1995, the jury found Cassells guilty of criminal possession of a controlled substance in the third degree. (Tr. 370-73.) On January 17, 1996, the court sentenced Cassells, as a predicate felon, to six to twelve years imprisonment. (1/17/96 Sentence Tr. 4, 10-11.)

In arguing for sentencing leniency, Cassells' attorney stated:


Ordinarily, justice must be tempered with mercy. Justice was done by the jury. No one is taking any argument with that. Now is the time for mercy, your Honor.

(Id. at 6.)

Cassells' Direct State Appeal

Represented by the Legal Aid Society, Cassells appealed to the First Department, arguing that the unexplained alteration in the cocaine admitted at Cassells' trial gave rise to the inference that the drugs were tampered with, which undermined the chain of custody, rendered the drugs inadmissible, and rendered the evidence insufficient to support Cassells' conviction in violation of the Due Process Clause of the Fifth and Fourteenth Amendments. (Cassells Br. at 2; Cassells Br. Appendix at A00027-45: Cassells 1st Dep't Br.) Cassells "also argued that his conviction was against the weight of the evidence, based on incredible police testimony, and that his sentence was excessive." (Cassells Br. at 2 n. 1; see Cassells Br. Appendix at A00046-54.)

On October 15, 1998, the First Department affirmed Cassells' conviction:

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. We see no reason to disturb the jury's credibility determinations. The discrepancy between the arresting police officer's description of the cocaine recovered from defendant and the form of the cocaine that was received in evidence at trial did not render the evidence inadmissible. The People's evidence established a complete chain of custody, and the discrepancy went to the weight of the evidence, not its admissibility.

People v. Cassells, 254 A.D.2d 109, 109, 680 N.Y.S.2d 480, 481 (1st Dep't 1998) (citations omitted).

The Court of Appeals denied leave to appeal. People v. Cassells, 92 N.Y.2d 981, 683 N.Y.S.2d 762, 92 N.Y.2d 1029, 684 N.Y.S.2d 494 (1998).

Cassells' Current Federal Habeas Petition

Cassells' present timely federal habeas petition, brought on his behalf by the Legal Aid Society, asserts that his conviction was based on insufficient evidence in violation of his due process rights under the Fifth and Fourteenth Amendments because the police recovered crack cocaine from him but the chemist tested and the State offered into evidence powdered cocaine. (Pet. ¶ 12; see Cassells Br. at 9-14.)

ANALYSIS THE TRIAL EVIDENCE WAS SUFFICIENT FOR THE JURY TO FIND CASSELLS GUILTY BEYOND A REASONABLE DOUBT

"[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction `except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt. . . ." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92. Granting a habeas petition is only warranted when the record is "so totally devoid of evidentiary support that a due process issue is raised." Mapp v. Warden, New York State Correctional Inst. for Women, 531 F.2d 1167, 1173 n. 8 (2d Cir.), cert. denied, 429 U.S. 982, 97 S.Ct. 498 (1976).

Accord, e.g., Roldan v. Artuz, 78 F. Supp.2d 260, 266-67 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *25 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *12 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 137-38 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4 (S.D.N Y Nov. 19, 1998) (Preska, D.J. Peck, M.J.); Fernandez v. Dufrain, 11 F. Supp.2d 407, 416 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N.Y. April 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N Y 1997) (Sprizzo, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).

See also, e.g., Brown v. Edwards, 96 Civ. 3444, 1998 WL 1286349 at *7 (S.D.N.Y. Jan. 15, 1998); Jett v. Mitchell, 92 Civ. 1313, 1993 WL 478396 at *4 (S.D.N.Y. Nov. 15, 1993); Peart v. Henderson, Superintendent of the Auburn Correctional Facility, 89 Civ. 2446, 1990 WL 127704 at *3 (E.D.N.Y. July 11, 1990) ("This Court may not re-evaluate the credibility of witnesses and must treat any seemingly contradictory testimony as if it had been resolved by the trier of facts in favor of the prosecution.")

Petitioner Cassells bears a "very heavy burden":

[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.

United States v. Carson, 702 F.2d 351, 361 (2d Cir. 1983) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).

Accord, e.g., United States v. Russo, 74 F.3d 1383, 1395 (2d Cir. 1996) (quoting United States v. Martinez, 54 F.3d 1040, 1042-43 (2d Cir. 1995), cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995)), cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[D]efendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864 (1994); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "`very heavy'" and all inferences must be drawn in the government's favor); Roldan v. Artuz, 78 F. Supp.2d at 267; Cruz v. Greiner, 1999 WL 1043961 at *25 n. 20; Jones v. Strack, 1999 WL 983871 at *13 n. 9; Franza v. Stinson, 58 F. Supp.2d at 138; Carromero v. Strack, 1998 WL 849321 at *4; Fernandez v. Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *5; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.

The habeas court's review of the jury's findings is limited:

[T]his inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (quotations and citations omitted).

Accord, e.g., United States v. Russo, 74 F.3d at 1395 (quoting United States v. Martinez, 54 F.3d at 1042-43); Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984); Roldan v. Artuz, 78 F. Supp.2d at 267-68; Cruz v. Greiner, 1999 WL 1043961 at *25; Jones v. Strack, 1999 WL 983871 at *13; Franza v. Stinson, 58 F. Supp.2d at 138; Carromero v. Strack, 1998 WL 849321 at *5; Williams v. Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284; Jett v. Mitchell, 1993 WL 478396 at *4 ("[i]n analyzing the sufficiency of the evidence, a federal court must defer to the jury's resolution of the weight given to conflicting testimony, the credibility accorded to testimony of witnesses, and the inferences drawn from historic to ultimate facts."); Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) ("[T]he court must ask itself whether the jury could have rationally returned a verdict of guilty on all counts if it believed all the evidence tending to support the verdict").

The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; accord, e.g., Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a petition for writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime.").

See also, e.g., Cruz v. Greiner, 1999 WL 1043961 at *25; Jones v. Strack, 1999 WL 983871 at *13; Moreno v. Kelly, 95 Civ. 1546, 1997 WL 109526 at *3 (S.D.N.Y. March 11, 1997); Briecke v. New York, 936 F. Supp. 78, 84 (E.D.N.Y. 1996).

New York Penal Law § 220.16(1) provides: "A person is guilty of criminal possession of a controlled substance in the third degree when he knowingly and unlawfully possesses: 1. a narcotic drug with intent to sell it." A "`[n]arcotic drug' means any controlled substance listed in schedule I(b), I(c), II(b) or II(c) . . ." of section 3306 of the Public Health Law. N.Y. Penal Law § 220.00(7). Section 3306 defines narcotic drugs to include:

(4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances including cocaine and ecgonine, their salts, isomers, and salts of isomers. . . .

Public Health Law § 3306, Schedule II(b)(4).

Thus, possession with intent to sell any form of cocaine, including crack cocaine or powdered cocaine, violates Penal Law § 220.16(1). E.g., People v. Burnette, 245 A.D.2d 460, 460, 666 N.Y.S.2d 658, 659 (2d Dep't 1997) ("a controlled substance under Schedule II of Public Health Law § 3306 includes cocaine and all of its isomers. . . . Hence, upon the forensic chemist's conclusion that cocaine was present in the substance tested, there was no need for additional testing to ascertain whether the substance was [natural] L-cocaine or [synthetic] D-cocaine.")

See also, e.g., People v. Portanova, 56 A.D.2d 265, 277, 392, N.Y.S.2d 123, 132-33 (4th Dep't 1977) (the Legislature's classification of cocaine as a "narcotic drug" is not irrational, unreasonable or unconstitutional); United States v. Alexander, 673 F.2d 287, 288 (9th Cir.) ("It is well settled that the Schedule II classification of cocaine as a narcotic under [federal criminal law] is constitutional."), cert. denied, 459 U.S. 876, 103 S.Ct. 168 (1982); United States v. Vila, 599 F.2d 21, 25-26 (2d Cir.) (same), cert. denied, 444 U.S. 837, 100 S.Ct. 73 (1979); United States v. Lane, 574 F.2d 1019, 1022 (10th Cir.) (same), cert. denied, 439 U.S. 867, 99 S.Ct. 193 (1978).

Here, Cassells claims that

Officer Jennings testified that he recovered and vouchered 6 envelopes which contained a substance that appeared to be crack or rock cocaine. However, the drugs that the police chemist received and tested were powdered cocaine. . . . There was no basis in the record for concluding that the drugs tested by the police chemist were the same items as those the undercover [sic] officer recovered from petitioner and vouchered. Nor was there any other evidence that the rock-like substance recovered from petitioner was cocaine. Thus, the evidence was insufficient to establish that petitioner possessed a controlled substance.

. . . .

[T]here was no rational explanation of how "crack," a chemically distinct "base" form of cocaine, could be transformed into its "salt" form, powdered cocaine. Thus no rational trier of fact could have found that petitioner possessed drugs, because there was no reason to conclude that the substance Officer Jennings recovered and vouchered was the substance that was tested and introduced into evidence.

(Cassells Br. at 9-10, 13-14.) Cassells appears to be challenging the chain of custody of the baggies seized from him to the cocaine tested by the police chemist, but as Cassells' counsel concedes, chain of custody is an issue of state evidence law, not cognizable on habeas review. (Cassells Br. at 13: the evidence "destroyed the chain of custody under state evidence law,. . . . But the argument here is not dependent on state evidentiary grounds.") Indeed, federal law clearly holds that a defect in the chain of custody goes to the weight of the evidence, not its admissibility. See, e.g., United States v. Washington, 11 F.3d 1510, 1514 (10th Cir. 1993), cert. denied, 511 U.S. 1020, 114 S.Ct. 1404 (1994); United States v. Robinson, 967 F.2d 287, 292 (9th Cir. 1992) (conviction affirmed despite insufficiency of evidence claim based on defect in chain of custody as to the seized bags of cocaine); United States v. Abreu, 952 F.2d 1458, 1467-68 (1st Cir.), cert. denied, 503 U.S. 994, 112 S.Ct. 1695 (1992); United States v. Hon, 904 F.2d 803, 810 (2d Cir. 1990) ("Once the exhibits were admitted into evidence, the alleged defects in the government's chain of custody proof were for the jury to evaluate in its consideration of the weight to be given to the evidence."); In re Extradition of Sandhu, No. 90 Cr. Misc 1, 1997 WL 277394 at *9 (S.D.N.Y. May 23, 1997); Barksdale v. United States, No. CV 94-4556, 1995 WL 313145 at *1 (E.D.N.Y. May 8, 1995) (§ 2255 petition denied where, inter alia, petitioner challenged chain of custody of evidence, since "the facts concerning chain of custody of evidence go to its weight and not to its admissibility."), aff'd, 100 F.3d 943 (2d Cir. 1996); Howard v. Keane, No. CV-91-0723, 1991 WL 352488 at *1-2 (E.D.N.Y. Dec. 9, 1991) ("Chain of custody issues such as those raised here turn on interpretation of state law and are generally not cognizable under 28 U.S.C. § 2254.).

In certain other cases, New York appellate courts have overturned drug convictions on chain of custody grounds. For example, in People v. Montoya, 244 A.D.2d 510, 664 N.Y.S.2d 106 (2d Dep't 1997):


There was testimony that the cocaine recovered from the buyer was a white powder. However, the police chemist testified that the substance he analyzed was a "chunky," "solid material," which was beige or off-white in color. While there was evidence that a chemist, who had since retired, previously analyzed the substance, the People never attempted to explain how the consistency of the substance changed from powdery to chunky, and how the color changed from white to beige or off-white. Consequently, the substance was inadmissible, rendering the evidence against the defendant legally insufficient to establish that he sold a controlled substance.

Id. at 510-11, 664 N.Y.S.2d at 107; see also, e.g., People v. Espino, 208 A.D.2d 556, 557, 616 N.Y.S.2d 782, 782-83 (2d Dep't 1994) (testimony established that undercover officer purchased white powdery substance but cocaine admitted into evidence was "brownish white" and hard; held: prosecution had not established complete chain of custody, trial court erred in admitting cocaine into evidence, and therefore evidence against defendant was legally insufficient to establish his guilt beyond a reasonable doubt; court reversed defendant's conviction.); People v. Steiner, 148 A.D.2d 980, 981-82, 539 N.Y.S.2d 980, 981 (4th Dep't 1989) (undercover officer and his supervisor testified cocaine purchased from defendant was white powder; two chemists described powder as reddish with white chunks and a reddish powder, respectively; cocaine introduced into evidence contained no chunks; held: prosecution failed to establish complete chain of custody, evidence should not have been admitted at trial, and defendant's conviction reversed).

Viewing the evidence in the light most favorable to the government, Cassells' contention fails to meet the "heavy burden" on habeas review of sufficiency of the evidence claims. A reasonable jury could have concluded from the trial evidence that the State established a complete chain of custody and thus that Cassells possessed cocaine. In the light most favorable to the government, the trial evidence showed that police seized six baggies that they believed contained cocaine from Cassells, and submitted the baggies in a sealed, numbered evidence envelope for testing; in an unbroken chain of custody, when that envelope, with seals intact, was opened and its contents tested, the baggies were found to contain cocaine. (See pages 6-8 above.) The jury also heard testimony about Cassells' inculpatory statements to the police. (See pages 4, 6 above.) This evidence is sufficient to convict. See, e.g., United States v. Rivera-Cintron, 29 M.J. 757, 761 (A.C.M.R. 1989), pet. denied, 31 M.J. 403 (C.M.A. 1990). In Rivera-Cintron, the evidence showed that the defendant had sold a plastic bag containing a substance in "rock" form having a yellowish tint to an informer, but at trial the government introduced a plastic bag with a white powdery substance that tested positive for cocaine. 29 M.J. at 758-59. The court affirmed the conviction, holding that a "careful reading of the record convinces us that there was substantial evidence before the court identifying the substances sold by appellant as cocaine, regardless of its outward appearance." Id. at 760; see also United States v. Stanley, 24 F.3d 1314, 1317 (11th Cir. 1994) (rejecting defendant's insufficiency of evidence claim based on argument that drugs police seized weighed more than weight of drugs in police laboratory); United States v. Limehouse, 950 F.2d 501, 504 (7th Cir. 1991) (rejecting defendant's chain of custody argument based on claim that the seized "white substance in the original box was `chunkier' than the cocaine produced at trial"), cert. denied, 504 U.S. 918, 112 S.Ct. 1962 (1992).

Furthermore, to the extent Cassells' petition implicitly challenges the police officers' credibility, this Court cannot disturb the jury's decision to credit Officers Jennings' and Duncan's testimony that they observed Cassells engage in a drug transaction and seized six pinkish-reddish baggies containing what appeared to be cocaine, that those baggies were placed in a sealed, numbered evidence envelope, and that when that envelope, with its seals intact, was opened by the police chemist, the drugs tested positive for cocaine. (See pages 6-8 above.)

The "jury is exclusively responsible for determining a witness' credibility." United States v. Strauss, 999 F.2d at 696 (citing United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164 (1989)). "Federal habeas courts are not free to reassess the fact specific credibility judgments by juries or to weigh conflicting testimony. On collateral review this Court must presume that the jury resolved any questions of credibility in favor of the prosecution." Vera v. Hanslmaier, 928 F. Supp. at 284 (quoting Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at *3 (E.D.N.Y. 1992), aff'd, 992 F.2d 320 (2d Cir. 1993)).

Accord, e.g., United States v. Rosa, 11 F.3d at 337; Roldan v. Artuz, 78 F. Supp.2d at 269; Franza v. Stinson, 58 F. Supp.2d at 139; Carromero v. Strack, 1998 WL 849321 at *5; Fernandez v. Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.

Accord, e.g., Roldan v. Artuz, 78 F. Supp.2d at 269; Franza v. Stinson, 58 F. Supp.2d at 139; Carromero v. Strack, 1998 WL 849321 at *5; Fernandez v. Dufrain, 11 F. Supp.2d at 416-17; Williams v. Bennet, 1998 WL 236222 at *5; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935.

Here, as in prior cases, "[t]he jury chose to believe the State's witnesses, despite the inconsistencies in the evidence. . . . We cannot say that no rational jury could have found guilt beyond a reasonable doubt on all the evidence." Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981).

Accord, e.g., Roldan v. Artuz, 78 F. Supp.2d at 269; Franza v. Stinson, 58 F. Supp.2d at 139; Carromero v. Strack, 1998 WL 849321 at *6; Williams v. Bennet, 1998 WL 236222 at *5; Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.

CONCLUSION

For the reasons set forth above, Cassells' habeas petition is DENIED DENIED. Since Cassells has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253.

SO ORDERED.