The Grand Jury of the Special Narcotics Courts voted an indictment against the accused men charging them with criminal possession of a weapon and conspiracy in violation of the Penal Law. In summary, a New York Criminal Lawyer the court alleges that a confidential informant contacted one of the accused, offering him an opportunity to rob drug dealers of a valuable supply of narcotics and cash. The accused allegedly accepted the informant’s offer and engaged the three accused men to be part of the robbery gang. The case detectives instructed the informant to tell the accused men the robbery location. It is alleged that the informant and the four accused men loaded two vehicles with a number of weapons and went to that Bronx location with the intention to commit a burglary and a robbery.
The accused men filed omnibus discovery motions, to which the court responded. The State also supplied the grand jury minutes to the court for in camera examination. After examining the grand jury minutes, the court ordered the parties to submit additional memoranda of law on two jurisdictional questions. To enable the parties to fully brief the issue, the court found that release of certain portions of the grand jury minutes to the parties was necessary to assist the court in making the determination on the motion.
The Crime Investigator testified in the grand jury. In summary, the informant testified that he had continuous conversations with one of the accused; however, his testimony is devoid of any references to where he or his co-accused was located when they had the telephone conversations. Furthermore, it is apparent from the grand jury minutes that none of the face-to-face meetings between the informant and the accused men occurred in Manhattan. The sole reference to Manhattan in the informant’s testimony is contained in the informant’s recitation of why he was at a certain place at a certain time.
The parties submitted legal memoranda to the court on the jurisdiction question. For the reasons which follow, the court finds that the evidence before the grand jury was insufficient to establish jurisdiction under any theory, and therefore the indictment is dismissed with leave to re-present.
The general rule in New York is that, for the State to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the state. A Manhattan Criminal Lawyer said that because the State only has power to enact and enforce criminal laws within its territorial borders, there can be no criminal law offense unless it has territorial jurisdiction. Mere thoughts or plans do not meet the conduct requirement of Criminal Procedure Law.
Territorial jurisdiction refers to the power of the court to hear and determine the case, and is distinguished from venue, which pertains to the proper county or place of trial thus territorial jurisdiction goes to the very essence of the State’s power to prosecute and may never be waived. The prosecution must prove territorial jurisdiction beyond a reasonable doubt.
An accused has the right under the New York State Constitution to be prosecuted in the county where the alleged criminal conduct was committed, unless the Legislature vests jurisdiction in some other county. The right to trial by jury incorporates the common law as it stood at the time of independence, and includes the right to be tried by a jury of the vicinage, the county where the alleged criminal conduct was committed.
Because of the importance of such right, New York courts have given the jurisdictional exceptions in Criminal Procedure Law called a restrictive interpretation and operation. Trial may be held outside the vicinage only if the Legislature has authorized it in clear and unmistakable terms. Such exceptions to the normal jurisdictional rules are to be applied only in accordance with necessity.
Upon the application of the assistant district attorney in charge of the special narcotics parts appointed pursuant to the plan, one or more grand juries may be drawn and impaneled for a special narcotics part upon the order of the justice assigned to such part, which grand jury may exercise all the powers of a grand jury in the county in which it is impaneled and may in addition exercise its powers with respect to the alleged commission of an offense in any county wholly contained in a city having a population of one million or more involving the sale or crack possession and any other offense that could be properly joined therewith in an indictment.
In other words, a Special Narcotics Grand Jury in New York County may exercise all the powers of a regular New York County Grand Jury. It means that the Special Narcotics Grand Jury, as any grand jury impaneled in New York County, must have geographic jurisdiction over the acts which they are seeking to indict. The Special Narcotics Grand Jury enjoys its expanded citywide jurisdiction only as to those offenses involving the sale or possession of a narcotic drug and any other offense that could be properly joined therewith in an indictment.
The State’s sole theory of geographic jurisdiction was explicitly presented to the grand jury. The entire substance of the Crime Investigator’s testimony before the grand jury on the issue of jurisdiction has previously been set forth. The State concedes that there is no other testimony on the point, although they argue extensively about the reasonable inferences they believe can be drawn from the sparse comments relating to jurisdiction.
In summary, it is uncontested that the sole references to Manhattan in the grand jury minutes, and the asserted basis of the grand jury’s New York County jurisdiction, are the numerous phone calls from Manhattan made to the targets and that the targets understood that the drug location they are potentially going to rob was in Manhattan originally. The Crime Investigator’s testimony is bereft of any references to any phone calls being made from Manhattan, but he does make a cursory reference to the plan which originally consisted of going to an apartment in Manhattan or in the Bronx with firearms, with guns, and it was to rob sixty kilos of cocaine. The threshold question, therefore, is whether this evidence met the minimal standard required to establish geographic jurisdiction in any New York County Grand Jury, irrespective of whether it happens to be designated a Special Narcotics Grand Jury.
When an accused challenges geographic jurisdiction before trial, the jurisdiction of the county seeking to prosecute must have been established before the grand jury. The indictment does not contain a single count charging sale or crack possession; therefore, the expanded jurisdictional rule of Judiciary Law does not apply. The court therefore begins with the sole basis of jurisdiction asserted in the grand jury, the alleged numerous phone calls from Manhattan which purportedly confer jurisdiction on New York County.
As to the conspiracy counts, special jurisdictional rules apply: geographic jurisdiction as to the conspiracy count is established in the county in which the accused entered into the conspiracy and in any county in which one or more of the overt acts in furtherance of the conspiracy were committed by the defendant or one of the coconspirators. The Criminal Procedure Law provides that an oral or written statement made by a person in one jurisdiction to a person in another jurisdiction by means of a telecommunication is deemed to be made in each jurisdiction.
However, before the court can reach the question of whether Criminal Procedure Law properly apply in the case, it must first determine whether there is competent evidence of phone calls actually made in New York County, and if made, whether those phone calls were made in furtherance of the conspiracy. The analysis is guided by the familiar rules governing the motion to dismiss an indictment for legal insufficiency.
In determining a motion to dismiss an indictment for legal insufficiency, the reviewing court must consider whether the evidence, viewed most favorably to the State, if unexplained and un-contradicted would be sufficient to warrant conviction by a trial jury. Legally sufficient evidence is defined as competent evidence which, if accepted as true, would establish every element of an offense charged. Hearsay evidence does not constitute competent evidence. Pursuant to the Criminal Procedure Law, the same rules which govern admission of evidence at criminal law violation trials apply to grand jury proceedings, unless covered by an exception listed in the Criminal Procedure Law. While geographical jurisdiction is a question of fact and can be reasonably inferred from all the facts and circumstances, the evidence which is presented to the grand jury on geographical jurisdiction must be competent evidence; if the evidence is not competent, no inferences, however reasonable, can rescue the presentation.
The court finds that the scant evidence adduced before the grand jury was insufficient to establish geographic jurisdiction in any New York County Grand Jury. The Special Agent’s testimony regarding the numerous phone calls made to the targets was unacceptable hearsay evidence. The testimony, which the State generously characterized as of a general nature, was utterly devoid of any non-hearsay facts establishing that either party to any conversation was actually present in Manhattan, or that the subject matter of the phone calls was in furtherance of a criminal conspiracy, both essential requirements of the Criminal Procedure Law. There was no testimony that the agent was a party to the conversation or that he was listening to the conversations on another line or on a wiretap, or even that he was with the Crime Investigator or one of the targets at the time they were having the conversation so that he could overhear some of the content. Therefore, his testimony about the phone calls, to the extent that it is credible and in the light viewed most favorably to the State, perforce was based upon someone else’s explanation to him of what took place. It is therefore unacceptable hearsay.
Clearly, none of the charges, which relate to burglary, robbery, and weapons possession, involve the sale or possession of a narcotic drug. The State argue extensively that the statute must be read expansively, and urge the court to find that because the accused men’s intended to rob narcotics dealers, their conduct falls within the ambit of the statute. The court, however, cannot endorse such theory. The occupation of the intended victim cannot confer jurisdiction where it does not otherwise exist.
The legislation which led to the creation of the Special Narcotics Courts, and the special jurisdictional rules governing those courts, was motivated by the 1970s crisis in narcotics cases and the way that the numbers of those cases were overwhelming the criminal justice system. Narcotics dealers, like banks, are assumed to have large sums of cash. Robbers victimize sources of large amounts of cash. Jurisdiction cannot rest on such peripheral facts as the occupation of the victim. The indictment is dismissed with leave to re-present to a New York County Grand Jury, to the extent that the State can establish jurisdiction, or, alternatively, for re-presentation before a Bronx County Grand Jury.
The Law is continuously being scrutinized to make sure that justice is being served fairly. If you believe that you are a victim of the criminal law’s unfair judgment, or have been charged with robbery, sex crimes, or drug possession, consult a Bronx County Criminal Lawyer. For your drug-related lawsuits, feel free to contact a Bronx County Drug Attorney at Stephen Bilkis and Associates.