Even setting this issue aside, Plaintiff's objection to the R&R's review of Petitioner's duplicitousness claim is without merit. The magistrate judge correctly ruled that New York's criminal law requirement that each “count of an indictment may charge one offense only” is a “state law requirement[] [that] cannot be considered by federal courts on habeas review.” R&R at 14 (citing N.Y. Crim. Proc. Law § 200.30(1) (McKinney 2021); Watson v. DHS/ICE, 15-CV-4173, 2019 WL 1473083, at *10 (E.D.N.Y Mar. 31, 2019) (Irizarry, J.)).
N.Y. Crim. Proc. Law § 200.30(1) (McKinney 2021) states that “[e]ach count of an indictment may charge one offense only.” “Such state law requirements cannot be considered by federal courts on habeas review.” Watson v. DHS/ICE, No. 15-CV-4173 (DLI), 2019 WL 1473083, at *10 (E.D.N.Y Mar. 31, 2019) quoting Jones v. Lee, No. 10-CV-7915 (SAS), 2013 WL 3514436, at *7 (S.D.N.Y. July 12, 2013) (citing 28 U.S.C. § 2254(a)).
Moreover, "an instruction on the law of circumstantial evidence is only appropriate" under New York law "if the evidence of a defendant's participation in a crime is wholly circumstantial." Watson v. DHS/ICE, No. 15-CV-4173, 2019 WL 1473083, at *11 (E.D.N.Y. Mar. 31, 2019) (emphasis in original) (citations omitted). When the petitioner raised this argument on direct appeal, the Appellate Division held that it was "unpreserved for appellate review" because the petitioner "did not request a circumstantial evidence charge . . . ."