# Kappen v. Bell

> District Court, E.D. New York · March 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10658919

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10658919

## How later opinions describe it (automated extraction)

- finding “trial judge correctly instructed the jury” where “the court's instructions faithfully tracked the language of New York's pattern criminal jury instructions”
- rejecting argument that defendant did not know cocaine was in boxes where “defendant had the package delivered to himself under an assumed name, to a warehouse where he stood outside awaiting delivery”
- discussing possession “especially but not exclusively .. . in his vehicle, or on his premises”

## Opinion text

Clerk’s Office
Filed Date: 3/29/2022
US. DISTRICT COURT
EASTERN DISTRICT OF NEW
YORK
UNITED STATES DISTRICT COURT BROOKLYN OFFICE
EASTERN DISTRICT OF NEW YORK
a eo ee ee ee □□□ eeeee==
DAVID KAPPEN,
wane im NOT FOR PUBLICATION
□ MEMORANDUM & ORDER
EARL BELL, Superintendent, Clinton 18-cv-05784 (CBA)
Correctional Facility,
Respondent.
nn on oo eo on nn ee en nnn nnn K
AMON, United States District Judge:
Petitioner David Kappen (“Kappen”) brings this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (ECF Docket Entry (“D.E.”) # 1 (“Pet.”).) A New York state jury
convicted Kappen of one count of Criminal Possession of a Controlled Substance in the First
Degree (New York Penal Law (“Penal Law’) § 220.21(1)) and one count of Criminal Possession
of a Controlled Substance in the Third Degree (Penal Law § 220.16(1)). (D.E. # 10-7
(“Indictment”) at 1; D.E. # 8-32 at 1149:8-15.) Kappen argues that: (i) his due process rights were
violated by the State’s knowing use of false testimony in his prosecution; (ii) his conviction at his
second trial violated the Double Jeopardy Clause of the Fifth Amendment; (iii) the evidence at his
second trial was legally insufficient to sustain his convictions; and (iv) the trial court’s jury
instructions were improper. (Pet. 5-9.) For the following reasons, Kappen’s petition is DENIED.
BACKGROUND
Kappen’s First Trial
a. Pre-Trial Proceedings
Before a Grand Jury on August 10, 2010, Nassau County Detective Patrick Carroll
(“Carroll”) testified! that he received a phone call from Detective Francis McNally (“McNally”)

' The facts relayed in this section come from Carroll’s testimony to the grand jury. As Kappen notes, not all of this
testimony is nerfectly consistent with later testimonv at his two trials. Accordinelv. | recite these facts only for the

in the Third Precinct at 6:00 a.m. on August 5, 2010. (August 10, 2010 Grand Jury Minutes
(“GJ1”) at 6:11-14.) McNally put him in contact with California Police Officer Travis Cotton
(“Cotton”). (Id. at 6:18-7:1.) Cotton informed him that while he was conducting undercover
surveillance at a California UPS store, he observed two men acting suspiciously in the store. (Id.
at 7:3-14.) Cotton said he had heard the two men ask the clerk behind the counter how much it
would cost to mail a television. (Id. at 7:14-16.) When the clerk asked the men how much the
television weighed, the two men said they were not sure. (Id. at 7:16-17.) The two men then went
outside, sat in their car for a couple of minutes, and then returned to the store with the television
box. (Id. at 7:18-22.) Cotton told Carroll that his suspicions were raised because the television
box indicated that the television weighed 23 pounds, but when the clerk weighed the box it
weighed almost 30 pounds. (Id. at 7:25-8:5.) One of the men then gave the clerk a telephone
number, and the clerk informed the man that the same number had been used to send packages to
the same address before. (Id. at 8:10-14.) The man then gave the store clerk a different telephone
number, which made Cotton even more suspicious of the transaction. (Id. at 8:15-17.) The clerk
then asked the men why they would want to spend $115 shipping a $200 television, to which the
men responded, “Don’t worry about it. Just Ship it.” (Id. at 8:18-24.) The men shipped the
package to 574 Willis Avenue, Williston Park, New York. (Id. at 7:5-7, 8:24.)
After the phone call with Cotton, Carroll went into the office and started tracking the UPS
package that Cotton had described to him. (Id. at 9:11-16.) Cotton also ran a search on the name
Leacock, the last name of the individual to whom the suspicious package was scheduled to be

a aa

shipped, which revealed that Leacock had been arrested seven times for prior drug possession and
sale. (Id. at 9:17-23.) Carroll then went to the Auto Spa at 574 Willis Avenue. (Id. at 10:4-8.)
At approximately 10:25 a.m. that same day, a UPS truck pulled up to the Auto Spa and
delivered the package, which was accepted by a man who put it behind the counter. (Id. at 10:12-
21.) Shortly after the package was delivered, Auto Spa worker Jamie Denton (“Denton”)? arrived
at the store and, according to Carroll, started acting suspiciously. (Id. at 10:24-11:10.) At around
10:40 a.m., a burgundy 2010 Ford Taurus with Florida tags arrived at the Auto Spa. (Id. at 11:10-
14.) Carroll later learned the driver was Trent Singleton (“Singleton”). (Id. at 13:9-11.) Denton
spoke with Singleton, who then drove away from the Auto Spa and waited nearby. (Id. at 11:14-
17.) Fifteen minutes later, a white 2006 Mercedes Benz arrived at the Auto Spa and started
following the Taurus, at which point Carroll lost sight of the cars. (Id. at 11:18-24.) Carroll later
learned that the Mercedes was driven by Kappen. (Id. at 13:19-21.) The Taurus later returned to
the Auto Spa, and Denton directed it into the garage bay. (Id. at 12:7-24.) Denton placed the
television box in the back seat of the Taurus, and Singleton drove away. (Id. at 13:3-8.) The
Mercedes, still driven by Kappen, pulled out from a side street and followed the Taurus. (Id. at
11:13-15.)
Around ten minutes later, after losing the cars in traffic, Carroll’s team found Kappen
driving the white Mercedes with Singleton in the passenger seat. (Id. at 13:24-14:6.) Kappen and
Singleton drove back to the Auto Spa, where they got out of the car and spoke with Denton. (Id.
at 14:13-17.) The three men then approached Denton’s white Jeep Cherokee, where Carroll
observed Kappen remove what appeared to be a white brick of cocaine from the Jeep and hide it

under his shirt. (Id. at 14:18-16:9.) Kappen and Singleton then got back into the white Mercedes,
with Singleton driving. (Id. at 16:9-17:5.)
Carroll’s team then surrounded the Mercedes, and Singleton crashed into one of the police
vehicles. (Id. at 17:6-16.) Singleton drove toward Carroll at high-speed, and Carroll fired two
shots at the vehicle. (Id. at 17:25-18:4.) Singleton then crashed into two more police cars before
fleeing the scene with Kappen; the police team quickly followed. (Id. at 18:20-19:22.) While the
team followed Singleton and Kappen in the Mercedes, Carroll arrested Denton. (Id. at 19:15-20.)
The police later found the Mercedes unoccupied. (Id. at 19:24-20:3.) They found the Taurus in
front of Kappen’s home. (Id. at 20:4-9.) The police found the television box inside the Taurus’s
trunk and found approximately three pounds of cocaine inside of the box. (Id. at 20:11-21:3.)
Following the Grand Jury proceedings, Kappen was indicted for Criminal Possession of a
Controlled Substance in the First, Third, and Seventh Degrees for knowingly possessing cocaine,
both individually and under an acting-in-concert theory. (See Indictment.) Subsequently, Kappen
moved to inspect the Grand Jury minutes, release the minutes, and dismiss the indictment. (D.E.
# 10-3 at 1.) The trial court reviewed the minutes in camera and, on January 10, 2011, declined to
release the minutes and denied the motion to dismiss the indictment on the three counts of Criminal
Possession of a Controlled Substance in the First, Third, and Seventh degrees.’ (Id.)
The court held a suppression hearing between May 5 and May 25, 2011. (D.E. # 8-27
(“Supp. Hr’g”).) Kappen moved to suppress only drugs recovered from his house after the events
discussed above. (D.E. # 10 (“Reply”).) At the hearing, Carroll testified that he called Cotton
“some time probably before ten a.m. because it’s a three-hour time difference” and he “didn’t want

‘The Grand Jury also indicted Kappen for various charges related to attempted murder, attempted assault, attempted
aggravated assault, reckless endangerment, criminal mischief, and criminal possession of a controlled substance
related to the shipment of the cocaine. (Indictment.) The majority of these charges were dismissed by the trial court

to wake him up in the middle of the morning.” (Supp. Hr’g 202:22-203:5.) He also testified that
he called Cotton from Willis Avenue, not from his home. (Id. at 239:23-24,) On cross-
examination, Carroll admitted that his statement to the grand jury that he “[g]ot out of bed and
started [his] day” “based on [his] conversations with Investigator Cotton” was incorrect, and that
he had meant that he had spoken to a New Jersey state trooper, not Cotton, before leaving home.
(Id. at 241:17-242:9.) Carroll also testified that, a month later, Cotton identified Kappen and
Singleton as the men at the California UPS. (Id. at 243:23-245:7.) Ultimately, the suppression
hearing ended with the State agreeing to dismiss the charges based on the drugs recovered from
Kappen’s bedroom. (Id. at 305-06.)
Following the suppression hearing, Kappen moved to renew his motion to dismiss the
indictment on the grounds that Carroll’s Grand Jury testimony, which he argued contained
inadmissible hearsay, inadmissible double hearsay, and impermissible testimony, undermined the
integrity of the Grand Jury proceedings. (D.E. 10-4.) The State maintained that Carroll’s
testimony at the Grand Jury proceedings was not hearsay because it was admitted to show Carroll’s
state of mind and explain the reasons for his actions. (Id.) The court declined to dismiss the
charges of which Kappen was ultimately convicted. (D.E. # 10-7.)

b. The First Trial
Represented by counsel, Kappen proceeded to a jury trial in October 2011 on one count of
Criminal Possession of a Controlled Substance in the First Degree and one count of Criminal
Possession of a Controlled Substance in the Third Degree. (D.E. # 8-29 (“1st Trial Tr.”).) During
trial, Carroll testified about the events of August 5, 2010. (Id. at 194-291.) California police
officers Joseph Paterson (“Paterson”) and Cotton also testified about Kappen’s participation in
shipping the television package from the UPS store in California and authenticated a video

recording from the UPS store that recorded those events. (Id. at 54-69, 70-121.) After viewing
the videotape during Cotton’s testimony, Kappen moved for a mistrial based on gaps in the
recording, claiming that the video had been edited, and on the fact that Cotton and Paterson could
not authenticate the video because it showed that “but for a very short amount of time, they were
not in the store at all.” (Id. at 124:5-6; see id. at 123:3-126:19.) The trial court denied the motion
for a mistrial because Kappen had failed to timely object to the admission of the videotape and any
defects in the video recording went only to the credibility of the evidence, not its admissibility.
(Id. at 134:14-136:7.)
During Kappen’s cross-examination of Cotton, Cotton testified that he received the call
from Carroll at 12:30 p.m. PT. (Id. at 164:13-16.) He also testified that he was not in the UPS
store for certain conversations he had testified about, (id. at 160-61), and that he did not enter the
store until after Kappen and Singleton were already at the UPS counter, (id. at 176:9-12). After
this cross-examination, Kappen renewed his application for a mistrial. (Id. at 201:13-14.) In light
of Cotton’s admissions, Kappen argued that Cotton could not have seen and heard all that he had
testified to have seen and heard at the UPS store. (Id. at 201:16-208:16.) In the alternative, Kappen
moved to strike those seven minutes and forty seconds of the video before Cotton entered the UPS
store on the grounds that there was no proper foundation. (Id. at 207:13-14.) The court reserved
its decision on the mistrial motion. (Id. at 208:16.)
At the close of testimony at the first trial, Kappen again renewed his motion for a mistrial
based on what he classified as Cotton’s “false testimony that was elicited by the prosecutors.” (Id.
at 450:3-5.) He also argued that the seven minutes and forty seconds of the video before Cotton
entered should be struck, requiring a mistrial “because the prejudicial effect of that [video] can’t
be erased.” (Id. at 457:10-14.) The trial court agreed with Kappen that the seven minutes and

forty seconds of the video had not been properly authenticated and precluded the entire videotape
and any testimony regarding the tape from the trial. (Id. at 475:12, 480:8-18.) Having precluded
the videotape, the trial court informed Kappen that if he “truly wants a mistrial, [he] can have a
mistrial.” (Id. at 480:19-21.) However, the court also warned Kappen that if he accepted a mistrial,
“this case does not go away, they only get to retry it a second time.” (Id. at 480:22-25.) Before
accepting the mistrial, Kappen moved for a trial order of dismissal, arguing that without the video
there was legally insufficient evidence to establish a case. (Id. at 481.) The trial court denied
Kappen’s motion for a trial order of dismissal at which point Kappen accepted a mistrial. (Id. at
482:1-2, 483:21-22.)
c. Post-Trial Motions
Prior to the commencement of Kappen’s second trial, he renewed his motion to dismiss the
indictment, arguing that it was based on inadmissible hearsay and materially false testimony and
was barred by double jeopardy. (D.E. # 10-9.) On January 24, 2012, the trial court denied the
motion to dismiss the indictment on the hearsay and false testimony grounds. (D.E. # 10-12.) The
trial court denied the double jeopardy motion on February 29, 2012. (Reply 25.)
Il. Kappen’s Second Trial
At Kappen’s second trial, the testimony largely tracked that of the Grand Jury proceedings
and the first trial. A few notable differences are described in detail here. First, at the second trial
Barbara Anhaeuser (“Anhaeuser’”), the owner of the California UPS store, testified and
authenticated the videotape from the store that was stricken from the first trial. (D.E. # 8-30 (“2nd
Trial Tr. Pt. 1°) at 403-09.) During Anhaeuser’s testimony it was revealed that the gaps in the
video that prompted Kappen’s first motion for a mistrial at the first trial were caused by motion
sensor technology that only recorded when motion was detected. (Id. at 404-05.) Anhaeuser also

testified that on August 3, 2010, two men had entered the UPS store and shipped a television to
Chechano Leacock at the Auto Spa address. (Id. at 421-22.) Anhaeuser testified that Kappen and
Singleton were in the UPS store for more than seven minutes before Cotton and Patterson entered
the store. (Id. at 459:14-460:8.)
At the second trial Cotton also testified about the events that had taken place at the UPS
store. Cotton testified that although he was only in the UPS store for approximately twenty
seconds, he observed the remainder of the transaction through the glass doors outside the store.
(Id. at 564:14-565:12.) Cotton testified that he personally overheard some of the conversation
about shipping the television—or at least that he wrote down in his report that he did and was
recollecting with his report two years later. (Id. at 584:22-586:16.) After Singleton and Kappen
had left the store, Cotton and Paterson reentered the store and inspected the television box before
contacting East Coast law enforcement about the transaction. (Id. at 566, 577.)
Carroll testified about the events that had taken place on August 5, 2010. In contrast to his
grand jury testimony, Carroll testified that he had not spoken to Officer Cotton until later in the
day after he had left his house to go into the office. (Id. at 521:22-25.) He testified that he had
made a mistake when testifying before the grand jury, and had meant to say that he spoke to a
different officer before leaving the house. (Id. at 524:11-12.) Carroll testified that he spoke to
numerous law enforcement officers throughout the day and could not be sure if he spoke to Cotton
before or after 10 a.m., or before or after the television was delivered. (Id. at 530:15-531:1.) The
remainder of Carroll’s testimony largely tracked his earlier testimony.
At the conclusion of the State’s case, Kappen moved for a trial order of dismissal. (D.E.
# 8-31 at 957:19-21.) Kappen argued that the State had failed to prove the necessary elements of

> At trial, there was no mention of the brick of cocaine that Carroll had testified in the grand jury he had seen in
Kappen’s possession before the arrest.

possession and knowledge of a controlled substance and that there was insufficient evidence to
establish that he had aided Singleton in possessing the television box. (Id. at 958:2-5.) The trial
court reserved decision on the motion. (Id. at 969:15-16.) Over Kappen’s objection, (id. at 985-
990, 1108-09), the trial court gave the jury an “expanded knowledge” charge: “the act of
possession of property by a person permits the inference that such person knows what he or she
possesses,” (id. at 1103:25-1104:2). Ultimately, the jury found Kappen guilty of Criminal
Possession of a Controlled Substance in the First and Third Degrees. (Id. at 1149:8-15.) The trial
court denied Kappen’s motion for a trial order of dismissal. (Id. at 1152:18-19.)
Ill. Post-Trial Procedural History
Kappen was sentenced on October 9, 2012 to concurrent prison terms of fifteen years and
twelve years, followed by five years of post-release supervision. (D.E. # 8-28 at 25-26.) Kappen
appealed his conviction to the Second Department, where he raised five arguments: (i) the integrity
of the grand jury had been impaired because of the admission of false, hearsay testimony; (ii) his
second trial was barred by double jeopardy because the evidence at his first trial, which had ended
in a mistrial, was legally insufficient to prove his guilt; (iii) the evidence at his second trial was
legally insufficient; (iv) the trial court’s jury instruction on the expanded knowledge charge was
improper; and (v) the trial court failed to conduct an adequate inquiry into a juror’s alleged inability
to participate in deliberations. (D.E. # 8-1.) On September 21, 2016, a unanimous panel of the
Appellate Division upheld Kappen’s judgment of conviction. People v. Kappen, 38 N.Y.S.3d 215
(App. Div. 2016). On October 21, 2016, Kappen sought leave to appeal to the Court of Appeals.
(D.E. # 8-14.) The Court of Appeals denied leave on February 8, 2017. People v. Kappen, 75
N.E.3d 104 (N.Y. 2017). Kappen did not seek a writ of certiorari from the United States Supreme
Court. (Pet. 2.)

On April 2, 2018, Kappen moved pro se to vacate the judgment against him pursuant to
section 440.10 of the New York Criminal Procedure Law. (D.E. # 18; D.E. #19; D.E. #20.) In
that motion, Kappen argued that: “(1) the judge who presided over defendant’s first trial lacked
the legal authority to do so .. . ; and (2) the People gave an incomplete and misleading instruction
to the grand jury regarding the law on ‘acting in concert’ with respect to various charges.” (Pet.
3.) On July 17, 2018, the Nassau County Court denied Kappen’s motion to vacate. (D.E. # 8-26.)
On October 4, 2018, the Appellate Division denied Kappen’s leave application. (D.E. #8-13.)
The present petition followed.®
STANDARD OF REVIEW
A federal court may grant habeas relief to a state prisoner only for violations of federal
law. 28 U.S.C. § 2254(a). As an initial, procedural prerequisite to attaining federal habeas relief,
“a state prisoner is required to exhaust all of his available state remedies before a federal court can
consider his habeas application.” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (citing 28
§ 2254(b)(1)(A)). This means that, for federal habeas relief to be available, the prisoner
must have ““‘present[ed] the essential factual and legal premises of his federal constitutional claim
to the highest state court capable of reviewing it’ . . . ‘in terms that are likely to alert the state
courts to the claim’s federal nature.’” Id. (first quoting Rosa v. McCray, 396 F.3d 210, 217 (2d
Cir. 2005); and then quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)).
Where a state prisoner has exhausted all state remedies, a federal court may consider
whether habeas relief is merited. A federal court may grant relief where a state court adjudicated
the habeas petitioner’s federal claim “on the merits” only where that adjudication was “contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined by

: Bee filed his petition for a writ of habeas corpus without a memorandum of law in support of the petition. (See
et.
10

the Supreme Court of the United States” or was “based on an unreasonable determination of the
facts in light of the evidence presented.” 28 U.S.C. § 2254(d). This standard is “difficult to meet.”
Harrington v. Richter, 562 U.S. 86, 102 (2011). “A state court’s determination that a claim lacks
merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness
of the state court’s decision.” Id. at 101 (internal quotation marks and citation omitted). What is
reasonable disagreement “depend|s] in part on the nature of the relevant rule.” Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004). “The more general the rule, the more leeway [state] courts
have in reaching outcomes in case-by-case determinations” because “[a]pplying a general standard
to a specific case can demand a substantial element of judgment.” Id. In essence, a court “will
not lightly conclude that a State’s criminal justice system has experienced the ‘extreme
malfunctio[n]’ for which federal habeas relief is the remedy.” Burt v. Titlow, 571 U.S. 12, 20
(2013) (alteration in original) (quoting Harrington, 562 U.S. at 102).
DISCUSSION
False Testimony
Kappen argues that his conviction was based on perjured testimony in violation of his due
process rights, and that the state court’s determination otherwise was (1) contrary to Napue v.
Illinois, 360 U.S. 264 (1959) and (2) an unreasonable determination of facts in light of the record.
(Reply 34.) Specifically, he argues that the prosecution knowingly put forward false testimony
before the grand jury, during his suppression hearing, and at trial.’

7 In addition to arguing that Kappen’s claims fail on the merits, the State argues that they are procedurally defaulted.
Because I find that Kappen’s claims fail on the merits, | “need not consider these procedural arguments.” Nieblas v.
Smith, 204 F.3d 29, 31 (2d Cir. 1999); see 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may
be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of
the State.”’).
11

“[T]he [Supreme] Court has consistently held that a conviction obtained by the knowing
use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable
likelihood that the false testimony could have affected the judgment of the jury.” United States v.
Agurs, 427 U.S. 97, 103 (1976). The Second Circuit has explained that I must consider “(1)
whether false testimony was introduced, (2) whether that testimony either was or should have been
known to the prosecution to be false, (3) whether the testimony went uncorrected, and (4) whether
the false testimony was prejudicial in the sense defined by the Supreme Court in Agurs.” Shih
Wei Su v. Filion, 335 F.3d 119, 127 (2d Cir. 2003).
False testimony before the grand jury alone is insufficient to state a cognizable claim for
habeas review if the petit jury convicts without relying on false testimony. In Lopez v. Riley, 865
F.2d 30 (2d Cir. 1989), the Second Circuit ruled that errors in a state grand jury proceeding were
not cognizable in federal habeas proceedings where any harm was cured by the petit jury’s
conviction. Id. at 32. There, Lopez complained of “the presentation of prejudicial evidence and
error in explaining the law,” and the Second Circuit found that, where the petit jury later convicted,
“error before the grand jury, if any, was harmless.” Id. at 33. District courts in this circuit have
extended Lopez directly to claims of false testimony provided to the grand jury, denying habeas
relief based on knowing presentation of false information to the grand jury. See, e.g., Smith v.
Hulihan, No. 1 1-cv-2947 (HB) (AJP), 2011 WL 4058764, at *10 (S.D.N.Y. Sept. 13, 2011), report
and recommendation adopted, 2012 WL 4928904 (S.D.N.Y. Oct. 17, 2012); May v. Warden, No.
7-cv-2176 (BSJ) (GWG), 2010 WL 1904327, at *3 (S.D.N.Y. May 10, 2010).
Kappen does not dispute that a claim based solely on false testimony given to the grand
jury is not cognizable on federal habeas review. Instead, he argues that the false testimony infected
the entirety of the proceeding such that he was not just indicted but also convicted based on the

12

false testimony. In other words, he admits that his grand jury claim only survives if his petit jury
claim survives. His petit jury claims are discussed below; any claims based solely on false
testimony before the grand jury are denied.
Similarly, any claims regarding false testimony during the suppression hearing are not
grounds for habeas relief because they were immaterial to the jury’s verdict in the second trial.
Kappen claims that the suppression hearing held between May 5, 2011 and May 25, 2011 was
“outcome determinative.” (Reply 31.) However, Kappen admits that he moved to suppress only
drugs recovered from his house, and that those drugs were related only to charges that the State
agreed to dismiss before trial. (Id. at 12 n.10.) He also admits that he “did not have standing to
challenge the recovery of the cocaine from the TV” and that “the guilty pleas of his co-defendants
rendered the Fourth Amendment challenge to the search of the TV box moot.” (Id.) Any false
testimony at the suppression hearing, then, is unrelated to evidence that was actually heard at trial.
Accordingly, there is no “reasonable likelihood that [any] false testimony” at the suppression
hearing “could have affected the judgment of the jury” at trial. See Agurs, 427 U.S. at 103.
Finally, Kappen has failed to prove that false testimony was introduced at his second trial.
False testimony may be “distinguished from incorrect testimony resulting from confusion, mistake,
or faulty memory.” Black v. Rock, 103 F. Supp. 3d 305, 317 (E.D.N.Y. 2015) (quoting McCants
v. Hallenback, No. 13-cv-5587 (JFB), 2014 WL 4638836, at *6 (E.D.N.Y. Sept. 16, 2014) (Bianco,
J.)). “[E]ven a direct conflict in testimony does not in itself constitute perjury.” United States v.
Gambino, 59 F.3d 353, 365 (2d Cir. 1995),
Kappen argues that Carroll’s testimony as to the time of his call with Cotton was false. At
the second trial, Carroll testified that he had not spoken to Cotton until he had left his house to go
into the office. (2nd Trial Tr. Pt. 1 at 521:22-25.) This was inconsistent with his statement to the

13

grand jury that he went into the office after his phone call with Cotton. (Id. at 9:11-16.) At the
second trial, he testified that he had made a mistake when testifying before the grand jury and had
meant to say that he spoke to a different officer before leaving the house. (Id. at 524:11-12.)
Carroll testified that he spoke to numerous law enforcement officers throughout the day and could
not be sure if he spoke to Cotton before or after 10 a.m., or before or after the television was
delivered. (Id. at 530:15-531:1.) Accordingly, Carroll’s allegedly false statement, that he spoke
with Cotton before he left the house, was not put before the petit jury that convicted Kappen.
Instead, at worst, Carroll’s testimony at the second trial was inconsistent with his earlier testimony.
Cf. Gambino, 59 F.3d at 365 (“[E]ven a direct conflict in testimony does not in itself constitute
perjury.”’).
Kappen also argues that Cotton’s testimony regarding what he witnessed in California was
false. According to Kappen:
The videotape from the UPS store demonstrated that Cotton and Patterson did not
enter the store until nearly eight minutes after the shipping transaction began, thus
Cotton never overheard Petitioner and Singleton ask how much it would cost to
mail the TV, and he likewise did not observe Petitioner or Singleton go to their car,
take out a TV box, carry the box into the store, or put the box on the counter
(Reply 42.) On direct examination at the second trial, Cotton testified that he was in the UPS store
for only twenty seconds. (2nd Trial Tr. Pt. 1 at 564:14-16.) He stated that the rest of the time he
was outside the store and could see inside through the store’s glass doors. (Id. at 564:17-565:5.)
He testified to seeing a negotiation, and to seeing an exchange of money for the shipment of a flat
screen television. (Id. at 562:2-566:6.) He testified that he spoke to the store clerk about the
shipment. (Id. at 574:3-14.) Kappen offers no proof that this testimony is false, other than arguing
that it was inconsistent with prior testimony. Moreover, the UPS store clerk testified that the
officers watched the transaction. (Id. at 433:5.) This testimony on direct examination would allow
a jury to infer that Cotton did visually witness the actions that Kappen says he could not have seen.
14

Moreover, the store clerk’s testimony about her conversations with Kappen and Singleton support
the proposition that the conversation about the cost of mailing the television occurred. (See. e.g.,
id. at 434:20-435:6.) Accordingly, Kappen has failed to prove that that portion of Cotton’s
testimony is false.
Kappen also argues that Cotton made false statements regarding what he heard. In contrast
to his testimony at earlier proceedings, Cotton did not testify that he overheard Kappen and
Singleton’s conversation about shipping the television on direct examination. Testimony about
overheard conversations was first elicited on cross-examination. Kappen’s counsel questioned
Cotton about the police report he submitted, which stated that he overheard certain conversations.
(See id. at 584:22-25.) Cotton’s testimony on cross-examination was unclear as to whether he
overheard portions of the UPS conversation himself. He equivocated, stating that his police report
said he overheard conversations rather than saying that he did indeed hear them. (See id. at 585:5-
10 (“Q. So you actually heard the discussion of whether or not the item was going to be shipped
overnight or three-days select? A. My report says I overheard it. Q. Did you actually overhear it?
A. I’m just referring to my report.”).) After some back and forth, he eventually stated “[a]ll I did
was write down in my report that I overheard it. That must mean that I overheard it,” (id. at 585:23-
24), and that “I wouldn’t write it down if it didn’t occur,” (id. at 586:2). Even this statement,
however, was followed up by more hedging, and his statement that “[t]his occurred over two years
ago, so all I am doing is recollecting with my report. (Id. at $86:21-22.) And when Cotton later
testified that he was not in the store during certain conversations, and counsel asked “[w]ouldn’t
you have had to have been to overhear the conversation,” Cotton answered “yes,” undermining
any testimony that he had heard the conversations. (Id. at 587:1-9.)

15

Although Cotton’s testimony appears to “result[| from confusion, mistake, or faulty
memory,” that is distinct from it being false. Black, 103 F. Supp. 3d at 317. Read as a whole,
Cotton’s testimony would indicate to a jury that he was not sure what he had overheard, and that
his memory of the event two years prior was foggy. His half-hearted support of his police report,
when coupled with his equivocation and his admission that he could not have heard certain
information, does not qualify as false testimony. Instead, Kappen’s decision to attempt to impeach
Cotton through his prior statements is an attack on Cotton’s credibility that the jury could consider
for itself. See United States v. Bortnovsky, 879 F.2d 30, 33 (2d Cir. 1989) (“Presentation of a
witness who recants or contradicts his prior testimony is not to be confused with... perjury. It
was for the jury to decide whether or not to credit the witness.” (quoting United States v. Holladay,
566 F.2d 1018, 1019 (Sth Cir. 1978) (per curiam))).
To the extent that Cotton’s testimony about what he overheard was false, there is no
“reasonable likelihood that the false testimony could have affected the judgment of the jury.”
Agurs, 427 U.S. at 103. The only debatably false testimony goes to what specific conversations
Cotton overheard. The portions of his story about what he witnessed, however, remain constant.
The UPS store clerk’s testimony, placing Kappen and Singleton at the store, describing her
conversations with them, and corroborating the fact that Cotton watched the transaction, support
the veracity of the rest of Cotton’s testimony. Moreover, the State’s version of events is bolstered
by the surveillance video placing Kappen in California and showing him ship a television. The
State did not need to rely on any conversations Cotton overheard to prove its case. Notably, it did
not elicit testimony about these conversations on direct or discuss them in summation.
Accordingly, it would have been unreasonable for the jury to change its verdict based on whether
Cotton personally overheard a certain conversation. Moreover, any false statements would have

16

been unlikely to strongly alter a jury’s balancing of Cotton’s credibility after his equivocal
testimony. See Harripersaud v. Barkley, No. 04-cv-4035 (NGG) (KAM), 2006 WL 467951, at
*14 (E.D.N.Y. Feb. 27, 2006) (finding lack of prejudice on credibility grounds from allegedly false
testimony where witness’s “credibility was in fact impeached at trial with the facts underlying the
adjudication”), In any case, Cotton’s testimony was at best tangential and cumulative given the
surveillance video, and so it is unlikely that a juror’s credibility determination would have altered
the verdict.
Accordingly, Kappen’s motion on this ground is DENIED.
Il. Double Jeopardy
Kappen argues that the state court’s decision rejecting his double jeopardy claim was an
unreasonable application of United States v. Scott, 437 U.S. 82 (1978). In Scott, the Supreme
Court held that where “ta defendant successfully seeks to avoid his trial prior to its conclusion by
a motion for mistrial, the Double Jeopardy Clause is not offended by a second prosecution.” Id.
at 93. Kappen argues that the Appellate Division was wrong to apply that holding to his case
because he sought a mistrial only after the trial court improperly denied his motion for a trial order
of dismissal.
Because the Appellate Division’s application of federal law on double jeopardy was not
unreasonable, I need not consider whether Kappen’s motion for a trial order of dismissal was
improperly denied.’ Kappen argues that on direct appeal the Appellate Division unreasonably
applied Scott when it held that Kappen waived any claim that his second trial constituted double
jeopardy because he sought and obtained a mistrial himself. “The Double Jeopardy Clause of the

‘Ripendoeeserague iattilnticions: of the evidence at his first trial is, on its own, sufficient to justify habeas
relief in light of the jury’s guilty verdict at his second trial. In any event, “the protection of the Due Process Clause
focuses on conviction, not retrial.” United States v. Brack, 747 F.2d 1142, 1148 (7th Cir. 1984).
17

Fifth Amendment protects a defendant in a criminal proceeding against . . . repeated prosecutions
for the same offense.” United States vy. Dinitz, 424 U.S. 600, 606 (1976). Whether the Double
Jeopardy Clause bars further prosecution in a particular case depends on the outcome of an earlier
proceeding. For example, “[t]he successful appeal of a judgment of conviction, on any ground
other than the insufficiency of the evidence to support the verdict poses no bar to further
prosecution on the same charge.” Scott, 437 U.S. at 90-91. On the other hand, a “judgment of
acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence
is insufficient to convict, may not be appealed and terminates the prosecution when a second trial
would be necessitated by a reversal.” Id. at 91.
In Scott, the Supreme Court considered whether double jeopardy bars further prosecution
after a defendant-initiated mistrial. The Court ruled that where “a defendant successfully seeks to
avoid his trial prior to its conclusion by a motion for mistrial, the Double Jeopardy Clause is not
offended by a second prosecution.” Id. at 93. “[A] motion by the defendant for mistrial is
ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is
necessitated by a prosecutorial or judicial error.” Id. (quoting United States v. Jorn, 400 U.S. 470,
485 (1971) (opinion of Harlan, J.)). The Scott Court acknowledged that a narrow exception applies
where “governmental actions [are] intended to provoke mistrial requests and thereby to subject
defendants to the substantial burdens imposed by multiple prosecution.” Id. at 94 (quoting Dinitz,
424 U.S. at 611). Later decisions have clarified that this exception requires proof that “the
governmental conduct in question [was] intended to ‘goad’ the defendant into moving for a
mistrial.” Oregon v. Kennedy, 456 U.S. 667, 676 (1982).
On direct appeal, the Appellate Division explicitly relied on Scott for the holding that
“since the defendant himself sought and obtained a mistrial without prejudice, he waived his

18

present claim that the second trial constituted double jeopardy.” People v. Kappen, 38 N.Y.S.3d
215, 216 (App. Div. 2016). That finding was presumably premised on the undisputed fact that
Kappen requested a mistrial several times throughout his first trial. (See 1st Trial Tr. 88:4, 89:22,
123:6-7, 201, 448:13, 450:3-5.) The trial court warned Kappen that if he truly wanted a mistrial,
he could get a mistrial, but that “if I grant a mistrial, this case does not go away, they only get to
retry it a second time.” (Id. at 480:19-25.) Even after the trial court’s warning, Kappen still
proceeded to accept the mistrial after the trial court denied his motion for a trial order of dismissal.
(Id. at 482:1-4, 483:21.)
Kappen argues that Scott’s holding that a trial ending in a defendant-sought mistrial does
not bar further prosecution does not apply where the defendant sought mistrial after a motion for
judgment of acquittal for insufficient evidence was wrongfully denied. To be entitled to habeas
relief on this ground, he must prove that the Appellate Division’s application of Scott was
“unreasonable”—in other words, he must prove that the Appellate Division committed an “error
well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). In other words, even an incorrect
application by the state court, if not unreasonable, will not justify habeas relief. See id. at 785.
Kappen argues that Scott, as augmented by Burks v. United States, 437 U.S. 1 (1978), and
numerous state cases applying these principles, clearly does not apply after the denial of a
meritorious trial order of dismissal. In Burks, the Supreme Court held that double jeopardy
precludes a second trial after an appellate court finds that there was insufficient evidence to sustain
ajury’s conviction. Id. at 11. Accordingly, Kappen argues that “there is no sound reason, based
in law or in equity, why the considerations that precluded Petitioner from taking an interlocutory
appeal from the trial court’s denial of his motion for a judgment of acquittal at his first trial,”

19

which, had he won, would have triggered double jeopardy, “should now also preclude him seeking
relief in this Court.” (Reply 66.)
Kappen’s argument is directly refuted by the Supreme Court’s decision in United States v.
Richardson, 468 U.S. 317 (1984). In Richardson, the defendant moved for a judgment of acquittal
as a matter of law. Id. at 318. After the trial court denied that motion, the jury was unable to reach
a verdict on certain counts of the indictment, and the court ordered a mistrial. Id. at 319. After
trial, Richardson moved to renew his motion for a judgment of acquittal as a matter of law and to
bar a second trial on double jeopardy grounds. Id. The district court denied these motions, and
Richardson appealed. Id. The question reached the Supreme Court after the D.C. Circuit denied
the appeal for lack of jurisdiction. Id. Although the Supreme Court held that “a colorable double
jeopardy claim [is] appealable,” it rejected Richardson’s claim. Id. at 322. Discussing
Richardson’s reliance on Burks, the Court refused to “extend|]| the reasoning of Burks, which arose
out of an appellate finding of insufficiency of evidence to convict following a jury verdict of guilty,
to a situation where the jury is unable to agree on a verdict.” Id. at 324. The Court noted that “the
protection of the Double Jeopardy Clause by its terms applies only if there has been some event,
such as an acquittal, which terminates the original jeopardy” but that a mistrial “is not an event
which terminates jeopardy.” Id. at 325. Accordingly, whether or not the trial court should have
granted the motion for a judgment of acquittal as a matter of law, “[r]egardless of the sufficiency
of the evidence at petitioner’s first trial, he has no valid double jeopardy claim to prevent his
retrial.” Id. at 326.
As other district courts have noted, Richardson “held quite clearly that jeopardy does not
terminate solely because the prosecution presents insufficient evidence at trial. In order to bar a
retrial, insufficient evidence must, according to the Court, result in an actual acquittal by jury or a

20

judgment of acquittal on insufficiency ground by the trial or appellate court.” Sivri v. Strange,
338 F. Supp. 2d 357, 362 (D. Conn. 2004). Here, Kappen points to no event that terminated
jeopardy. Accordingly, under Richardson, he was not entitled to a double jeopardy bar even if the
evidence at his first trial were insufficient.
Furthermore, there is no evidence or even argument that the prosecution goaded Kappen
into requesting and accepting a mistrial in the present case. Although Kappen argues that he
moved for a mistrial only “at the clear provocation of the court,” (Reply 67), he points to no
evidence that the judiciary or the prosecution made decisions with the “inten[t] to ‘goad’ the
defendant into moving for a mistrial,” Kennedy, 456 U.S. at 676, especially where Kappen moved
for mistrial multiple times throughout trial and the judge warned him of the implications of moving
for a mistrial. Considering these facts, the Appellate Division did not unreasonably apply clearly
established law in holding that Kappen’s second trial was not barred by double jeopardy. Because
Kappen has failed to show that the state court made an objectively unreasonable determination, he
is not entitled to habeas relief on this claim.
Ill. Insufficient Evidence at Second Trial
Kappen argues that the state court erred in its determination that the evidence at his second
trial was legally sufficient. In the § 2254 context, a sufficiency of the evidence challenge is judged
under a “twice-deferential” standard. Santone v. Fischer, 689 F.3d 138, 148 (2d Cir. 2012). In
Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court held that evidence is constitutionally
sufficient if “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 proven beyond a reasonable
doubt.” Id. at 319. “And a state-court decision rejecting a sufficiency challenge may not be
overturned on federal habeas unless the “decision was “objectively unreasonable.”’” Parker v.

21

Matthews, 567 U.S. 37, 43 (2012) (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam)).
Putting these two standards together, I can only overturn the New York courts’ sufficiency finding
if it is objectively unreasonable to believe that any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.
First, Kappen argues that the evidence at his second trial was only sufficient to infer
possession in California, and that evidence of possession in California is insufficient to establish
possession in New York. However, viewing the evidence in the light most favorable to the
prosecution, it was sufficient to prove constructive possession. First, because the entire videotape
was admitted at the second trial, the jury was able to consider the events inside the UPS store
where Kappen was seen shipping the television with Singleton. Following the events at the UPS
store, Kappen arrived in New York only a few days later at the same location where the television
was delivered. Once Kappen was at the Auto Spa, law enforcement officials observed Kappen
following Singleton in his car. Kappen was also seen driving in his own car with Singleton
multiple times. The television with the cocaine was found in a car on the street directly outside of
Kappen’s home that very same day. This evidence supports the Appellate Division’s conclusion
that a rational juror could have found that Kappen exercised the necessary level of control over
over the television with the cocaine to establish constructive possession in New York, or at the
very least to support an inference that he aided Singleton in possessing the cocaine in New York.
The Appellate Division’s decision was not an arbitrary application of New York law nor did
anything in the federal Constitution prevent the Appellate Division from reaching this conclusion.
As a result, Kappen cannot show that it was objectively unreasonable for the Appellate Division
to conclude that a rational trier of fact could have found him guilty.

22

Second, Kappen argues that the evidence at his second trial was insufficient to establish
that he knew the television contained cocaine. In making this argument Kappen relies on United
States v. Torres, 604 F.3d 58 (2d Cir. 2010). There, the Second Circuit held that the evidence was
insufficient to permit a jury to find beyond a reasonable doubt that the defendant had the requisite
knowledge and intent to support a conviction for conspiring to distribute and possess with intent
to distribute cocaine, in violation of 21 U.S.C. § 846, because there was insufficient evidence to
establish that the defendant knew a package contained cocaine. Id. at 70. The only evidence of
the defendant’s contact with a cocaine-laden package was his receipt of the package. Id. The
Second Circuit distinguished the facts in Torres from its prior holding in United States v. Huezo,
546 F.3d 174 (2d Cir. 2008), because “the government presented no evidence as to the nature of
Torres’s associations with the persons who shipped the cocaine.” Torres, 604 F.3d at 71.
Moreover, “‘[t]here was no evidence of any conduct by Torres other than his efforts to gain
possession of the Packages, which... did not show that he had knowledge of the Packages’
contents,” and the defendant was never in a position to have ‘sole dominion’ over the narcotics.”
United States v. Serrano, 224 F. Supp. 3d 248, 254 (S.D.N.Y. 2016) (alterations in original)
(quoting Torres, 604 F.3d at 71).
In contrast, Kappen was the person who shipped the cocaine, as evidenced by the UPS
store video. In fact, the UPS store clerk testified that Kappen was the one who conducted the bulk
of the transaction and signed all of the documents. (See 2nd Trial Tr. Pt. 1 at 418:23-419:1, 424:24-
425:2.) His participation in both sides of a cross-country drug delivery would support the inference
that he was aware of the details of that delivery. Torres, 604 F.3d at 71; Huezo, 546 F.3d at 182.
Moreover, unlike in Torres, there is evidence that Kappen had the “prospect[] of having sole
dominion over the Packages,” Torres, 604 F.3d at 71—after all, the television box was eventually

23

found in a car parked at his house. “It is reasonable to infer that whoever entrusted [Kappen] with
this valuable package would have acquainted him with the nature of its contents.” United States
v. Bulluck, No. 09-cr-652 (PGG), 2011 WL 2360283, at *5 (S.D.N.Y. June 8, 2011) (citing Huezo,
546 F.3d at 182); see also United States v. Anderson, 747 F.3d 51, 70 (2d Cir. 2014) (finding
knowledge even where “the facts adduced in Huezo regarding the nature of the relationship
between the defendant and his co-conspirators were more extensive than those produced by the
government here” because “although the government is not permitted to build a conviction on a
house of cards, neither is a jury required to leave its common sense at the courthouse door”).
In any event, Torres, a federal case analyzing federal law, has little relevance in
determining whether evidence was sufficient under state law to convict Kappen of a state crime.
“When considering the sufficiency of the evidence of a state conviction, ‘[a] federal court must
look to state law to determine the elements of the crime.’” Ponnapula v. Spitzer, 297 F.3d 172,
179 (2d Cir. 2002) (quoting Quartararo_v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999)).
Accordingly, I must consider how New York courts have construed the knowledge element.
Under New York law, there is sufficient evidence for a rational juror to find that Kappen
knew that the television contained cocaine. Under New York law, “possession suffices to permit
the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in
his hands, on his person, in his vehicle, or on his premises.” People v. Reisman, 29 N.Y.2d 278,
285 (1971). In the present case, Kappen shipped the television box at the UPS store in California
in a suspicious manner, arrived in New York at the Auto Spa only a few days later just in time for
the delivery of the television, followed Singleton who was driving the Taurus with the television
in the trunk, and drove in the Mercedes with Singleton. Finally, the television with the cocaine
was discovered in the Taurus directly outside his home. Under New York law, these facts are

24

more than enough to support the inference that Kappen knew the television contained cocaine.
See, e.g., People v. McCullough, 890 N.Y.S.2d 489, 489 (App. Div. 2009) (rejecting argument
that defendant did not know boxes contained marijuana because “defendant was the intended
recipient of the boxes” and “when a detective subsequently approached and identified himself,
defendant immediately disclaimed ownership of the boxes”); People v. Gonzalez, 779 N.Y.S.2d
192, 193 (App. Div. 2004) (rejecting argument that defendant did not know cocaine was in boxes
where “defendant had the package delivered to himself under an assumed name, to a warehouse
where he stood outside awaiting delivery”). The Appellate Division’s determination that there
was sufficient evidence for a rational juror to infer Kappen’s knowledge under New York law was
not objectively unreasonable, and Kappen is not entitled to habeas relief on his sufficiency of the
evidence challenge.
IV. Jury Instruction
Kappen argues that the trial court erred in instructing the jury that it could infer knowledge
from constructive possession. “In order to obtain a writ of habeas corpus in federal court on the
ground of error in a state court's instructions to the jury on matters of state law, the petitioner must
show not only that the instruction misstated state law but also that the error violated a right
guaranteed to him by federal law.” Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). “The
question is not whether the trial court gave a faulty instruction, but rather ‘whether the ailing
instruction by itself so infected the entire trial that the resulting conviction violates due process.’”
Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001) (quoting Cupp v. Naughten, 414 U.S. 141, 147
(1973)). “In a criminal trial, the State must prove every element of the offense, and a jury
instruction violates due process if it fails to give effect to that requirement.” Middleton v. McNeil,
541 U.S. 433, 437 (2004). Where the petitioner challenges a jury instruction informing jurors of

25

a permissive inference they may make, “it affects the application of the ‘beyond a reasonable
doubt’ standard only if, under the facts of the case, there is no rational way the trier could make
the connection permitted by the inference.” Cnty. Ct. v. Allen, 442 U.S. 140, 157 (1979).
Here, the trial court gave an expanded knowledge charge to the jury at Kappen’s second
trial. The trial court first explained to the jury that under New York law possession can be proven
one of two ways. First, a person may physically possess property. Second, a person may
constructively possess property by exercising the necessary level of control or dominion over the
property. The court then explained that a defendant demonstrates dominion and control when they
exercise a level of control over the area in which the property is found, or over the person from
whom the property is seized, sufficient to give the defendant the ability to use or dispose of the
property. The trial court finally instructed the jury that if they found that possession was proven
beyond a reasonable doubt, they were permitted, but not required, to infer that Kappen knew what
he possessed was cocaine.
The Appellate Division held that the expanded knowledge charge that the trial court gave
was proper. See People v. Kappen, 38 N.Y.S.3d 215, 216 (App. Div. 2016). The Appellate
Division held that the even though the evidence of Kappen’s guilt was circumstantial and his
possession of cocaine was accessorial and constructive, this was not a bar to the expanded
knowledge charge. Id.
The trial court’s jury instructions did not misstate New York law regarding knowing
possession. First, the court’s constructive possession and expanded knowledge charges correctly
stated state law—both tracked the New York Pattern Jury Instructions. See New York Criminal
Jury Instructions and Model Colloquies, General Applicability, Possession, Physical and
Constructive Possession; New York Criminal Jury Instructions and Model Colloquies, General

26

Applicability, Culpable Mental States, Expanded Charge on Knowingly; see also Sams v. Walker,
18 F.3d 167, 171 (2d Cir. 1994) (finding “trial judge correctly instructed the jury” where “the
court's instructions faithfully tracked the language of New York's pattern criminal jury
instructions”); cf. Middleton, 541 U.S. at 435 (discussing correctness of jury instruction under
state law by reference to model jury instructions). To the extent Kappen argues that the error was
in issuing both charges together, that double inference is permitted under state law. As discussed
regarding sufficiency, under New York law “possession suffices to permit the inference that the
possessor knows what he possesses, especially but not exclusively, if it is in his hands, on his
person, or in his vehicle, or on his premises.” People v. Reisman, 29 N.Y.2d 278, 285 (1971).
Notably, Reisman does not suggest that the inference of knowledge is permissible only in cases of
physical possession as opposed to constructive possession. Id. (discussing possession “especially
but not exclusively .. . in his vehicle, or on his premises”).
Because Kappen has failed to prove that the jury instructions misstated state law, and he
has failed to prove that the state law inferences violate his due process rights, his habeas petition
is DENIED.
CONCLUSION
For the reasons set forth above, Kappen’s petition is denied. Because Kappen has failed to
make a “substantial showing of the denial of a constitutional right,” a Certificate of Appealability
shall not issue. 28 U.S.C. § 2253(c). The Clerk of Court is respectfully directed to enter judgment
accordingly and close the case.
SO ORDERED.
—
Dated: moka ik s/ Carol Bagley Amon _
Carol Bafley Afhon
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10658919. Public record. Not legal advice.