In 1993, the New York State Drug Enforcement Task Force began investigating a narcotics-trafficking ring centered at a Queens County garage known as W & G Auto Repair, which was operated by another individual. Surveillance and wiretaps revealed evidence of an interstate scheme by which cocaine was secreted in hidden automobile compartments and driven from San Francisco to New York. Defendant was the West Coast partner of the New York garage operator together with another person. A New York DWI Lawyer said another man oversaw transportation of the drugs cross-country. Defendant and his cohorts employed other individuals to drive, store and protect the drugs and equipment.
Between 13 April and 17 April of 1994, the task force intercepted a series of telephone calls defendant had with the other operators and the person in charged with the transportation about a planned shipment of cocaine from San Francisco to Queens County. The drugs were slow in arriving due to an overheated car. Task force members tried to intercept the delivery in Queens on April 17, but arrived too late at the exchange location, believed to be a McDonald’s at 204th Street and Northern Boulevard. That night, the New York Operator called defendant and told him that the transport of at least 65 kilograms of cocaine was a success.
Based on a series of calls intercepted between 13 May and 19 May 1994, the task force learned of plans to use three cars (white, blue and green) to transport cocaine from San Francisco to New York. Defendant was in New York City for four days, from May 13 to May 16, meeting with his cohorts. During his stay, he made telephone calls to his California subordinates. He gave detailed instructions to them on preparing the cocaine for shipment to New York City via automobile, and planned to pay the travel expenses of a driver.
After returning to California, defendant continued his preparations. On May 17, he told the garage operator that he would put 21 kilograms of cocaine in the white car for an employee to pick up. A New York DWI Lawyer said that the defendant later reassured the operator that he would dress up the girls (prepare the cocaine) for delivery to New York. The operator told him to “fill up the space” in the blue and green cars.
On 19 May, task force members stopped the aforesaid employee just outside the San Francisco airport; after a brief search of his white Mazda, no drugs were located and he was sent on his way. He parked in the airport garage and entered the terminal, and upon his return to the car, the task force team intervened, finding 21 kilograms of cocaine in hidden compartments in the panels of the car’s rear doors. Later that evening, task force members stopped a blue Volvo which had been left at a suburban San Francisco shopping center by another one of defendant’s employee. At the time of the stop, another employee was driving the Volvo. Thirty kilograms of cocaine were found in a hidden trap behind the dashboard. Following these setbacks, defendant and the garage operator spoke by telephone and made plans to move their drug inventory to a new location.
The task force learned that the cohorts stored a large amount of cocaine in a “stash house” in Daly City, outside San Francisco. On the night of 15 June 1994, police recovered 23 kilograms of cocaine and more than $433,000 from the stash house. A Nassau County DWI Lawyer said that apparently, defendant and an underling entered the garage at the stash house while task force agents were inside; defendant later told the garage operator that he saw some strange people in the house and left. Defendant said that he doubted whether the people he had seen in the house were police. The other operator angrily told defendant that he had 48 hours to get him “that material.” The garage operator told defendant to “load up” a car with drugs bound for New York as soon as possible.
In September 1994, defendant was arrested in California; the garage operator and the other conspirators were also arrested.
On 15 October 1994, defendant, and the others were charged in a special narcotics indictment with second degree conspiracy. Defendant and the two other New York operators were also charged, acting in concert, with three counts of first degree criminal possession of a controlled substance for the separate quantities of drugs seized in California.
Defendant was convicted of three counts of first degree criminal possession of a controlled substance or cocaine possession or a drug crime in violation of the criminal law, as well as one count of conspiracy in the second degree, and was sentenced as a second felony offender to an aggregate term of 35 years to life.
Defendant’s cohorts in the conspiracy were also convicted as charged.
The Appellate Division affirmed defendant’s convictions, concluding that territorial jurisdiction over the possessory offenses had been established in that defendant’s telephone conversations with his New York-based accomplices were deemed New York conduct sufficient to establish an element of the offense.
The issue here is whether the prosecution for first degree criminal possession of a controlled substance and conspiracy was rightly exercised by the New York Court.
Did New York have territorial jurisdiction over the possession offenses regardless of the fact that the cocaine was seized in California which is also the defendant’s residence?
At common law, it was settled that jurisdiction over a felony offense was vested only in the state where the felony was completed. While long accepting this principle as a jurisprudential underpinning, courts have nevertheless recognized its substitution by statutes that have broadened the scope of territorial jurisdiction. Our statute has codified the general principle that, for New York to exercise criminal jurisdiction, some alleged conduct or a consequence of that conduct must have occurred in the state.
Plainly, jurisdiction over an offense exists based on a conspiracy occurring in New York to commit that offense. Further, jurisdiction exists only for those defendants whose criminal acts in furtherance of the conspiracy occurred in New York.
Here, the question is whether there was evidence of defendant’s conduct in New York sufficient to establish his conspiracy to commit first degree criminal possession of a controlled substance. The court concludes that there was.
Moreover, with respect to possessory crimes, the Legislature has defined criminal possession in terms of dominion and control, and that unlawful possession is a continuing offense.
Two facts make a clear case for jurisdiction to prosecute defendant under the law: first, defendant was physically present in New York for some of the conspiratorial conduct on which jurisdiction is predicated; and second, the drugs in question were to be shipped to New York. Defendant flew to New York in May, and while in this state, he made out-of-state phone calls to underlings, met with New York cohorts and conspired to transport cocaine here.
To note, while defendant was present in the New York state, both physically and by telephone, defendant conspired with his accomplices and engaged in overt acts in furtherance of their possession of significant quantities of cocaine and their plan to transport the cocaine to New York.
Compelling evidence of a conspiracy tied defendant to each of the three possession counts.
By reason of the conclusion that jurisdiction is predicated on a conspiracy in New York to possess cocaine, the herein court need not consider whether jurisdiction might also be established under CPL or any other theory. Courts are bound by principles of judicial restraint not to decide questions unnecessary to the disposition of the appeal.
Moreover, at trial, defendant never alleged any constitutional violation, federal or state, concerning his prosecution by New York. Defendant never moved for a trial order of dismissal on the ground that the People failed to prove jurisdiction, and rejected the court’s offer to place the interrogatories before the jury. Rather, defendant relinquished his opportunity to hold the People to their burden of proof, and did not preserve his current contention that the jury should have decided whether the People proved jurisdiction beyond a reasonable doubt.
Further, the ruling cited by defendant does not find application herein. The applicable law is not the same.
Finally, in the coast-to-coast drug trafficking operation, defendant conspired in New York with his New York cohorts to bring cocaine to New York affording a basis for the assertion of jurisdiction under our statutory scheme to prosecute him, jointly with his coconspirators, here.
Defendant’s contention that his trial attorney was ineffective lacks merit.
Accordingly, the order is affirmed.
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