ORDER

LEWIS A. KAPLAN, United States District Judge.

Petitioner was convicted of criminal possession of a weapon in the third degree in New York Supreme Court, Bronx County, and sentenced to a term of imprisonment of 3 = to 7 years. His conviction was affirmed unanimously by the Appellate Division, and the New York Court of Appeals denied leave to appeal. People v. Fernandez, 270 A.D.2d 91, 705 N.Y.S.2d 332 (1st Dept.), leave to appeal denied, 95 N.Y.2d 834, 713 N.Y.S.2d 141 (2000). He filed this timely petition for a writ of habeas corpus claiming that his conviction was procured in violation of his federal constitutional rights in that (1) implicit hearsay was elicited for the truth of the matters asserted in violation of the Due Process and Confrontation Clauses, and (2) the trial court allowed the People to vary the theory of the case to include a theory of constructive possession and compounded the error by incorrectly instructing the jury in violation of the Due Process Clause and the Sixth Amendment.

Implicit Hearsay The First Department rejected petitioner's implicit hearsay argument on the ground that petitioner failed to preserved the point in the trial court. People v. Fernandez, 270 A.D.2d at 91, 705 N.Y.S.2d at 333. The first ground for relief therefore is barred from federal review, as it rests on an independent and adequate state ground. See, e.g., Lambrix v. Singletary, 520 U.S. 518, 522-23 (1997); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Nor has petitioner alleged or shown either cause for or prejudice from the failure to preserve the point. See McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).

Variance in Theory Petitioner's second and third grounds for relief are interrelated. Petitioner claims that the prosecution proceeded at trial solely on the basis of the statutory presumption of possession created by N.Y. Penal L. § 265.15(3)(b). At the charge conference, however, the People requested a charge on the theory of constructive possession as well. Over petitioner's objection, the trial court charged not only the statutory presumption, but constructive possession as well. In addition, the trial court, over petitioner's objection, charged the jury with respect to the cab driver exception contained in Penal L. § 265.15(3). On direct appeal, petitioner contended in constitutional terms that both the constructive possession and the cab driver exception theories were not properly submitted to the jury. Respondent nevertheless claims that both points are unexhausted and forfeited.

Exhaustion Respondent first argues that petitioner failed to exhaust his state remedies as to the constructive possession argument because he raised the point in his leave application by reference to his Appellate Division briefs. But the leave application, unlike that at issue in Jordan v. Lefevre, 206 F.3d 196 (2d Cir. 2000), the case upon which respondent relies, clearly stated that petitioner was pressing this particular claim raised in the attached Appellate Division brief. As Jordan itself makes clear, that was sufficient. Id. at 199.

The cab driver exception point stands differently. Although petitioner had raised that point in constitutional terms in the Appellate Division, he raised it in his leave application exclusively as a matter of state law. Resp. Ex. 4, at 4-6. This was insufficient to exhaust his state remedies with respect to the federal constitutional issue he now seeks to raise. See, e.g., Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). Petitioner, however, has no remaining means of raising this issue in the state system. The claim therefore is exhausted. As he has shown neither cause for nor prejudice from the failure to raise the issue properly in the state system, his claim nevertheless has been forfeited. Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1997) (citing Murray v. Carrier, 477 U.S. 478, 492 (1986)).

The Merits This brings the Court to the merits of petitioner's second ground for relief, the assertion that the constructive possession charge deprived him of federal constitutional rights. As respondent concedes, petitioner is entitled to de novo review of this point, notwithstanding the deferential standard of 28 U.S.C. § 2254(d)(1), because the Appellate Division's decision on this point did not "make any reference to a federal constitutional claim by, for example, citing Supreme Court case law or state court precedents which themselves apply federal law" and therefore cannot be said to have involved an adjudication on the merits of the federal claim. Washington v. Shriver, ___ F.3d ___, 2001 WL 125332, *7 (2d Cir. Feb. 14, 2001). Resp. Mem. at 16-17.

The essence of petitioner's claim with respect to the constructive possession charge is that the jury has an opportunity to convict him on a theory not considered by the grand jury and that he received insufficient notice that he was charged with constructive possession of the gun. But there is no merit to the contention.

Petitioner acknowledges that he was indicted for and convicted of criminal possession of a weapon in the third degree. See N.Y. Penal L. § 265.02. As the Appellate Division held in this case, 270 A.D.2d at 91, 705 N.Y.S.2d at 333, the Penal Law defines "possess" as "to have physical possession or otherwise to exercise dominion or control over tangible property." N.Y. Penal L. § 10(8). It long has been construed as embracing constructive possession. E.g., Chalmers v. Mitchell, 73 F.3d 1262, 1272 (2d Cir.), cert. denied, 519 U.S. 834 (1996); People v. Hadley, 67 A.D.2d 259, 262, 415 N.Y.S.2d 719, 721 (4th Dept. 1979) (Simons, J.). In consequence, the indictment gave sufficient notice of the charge against petitioner, and there is no suggestion that the prosecution ever limited itself. Nor is there any basis for petitioner's contention that he may have been convicted on a theory that had not been submitted to the grand jury. Accordingly, the trial court did not err, at least in federal constitutional terms, in submitting the constructive possession theory to the jury.

The petition is denied and the case dismissed. As the Court perceives no substantial constitutional question, a certificate of appealability is denied. The Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915.

SO ORDERED.