The Grand Jury of the Special Narcotics Courts of the City of New York voted an indictment against the defendants charging them with four counts of criminal possession of a weapon in the second degree, in violation of Penal Law § 265.03 (2); four counts of criminal possession of a weapon in the third degree in violation of Penal Law § 265.02 (4); and two counts of conspiracy in the fourth degree, in violation of Penal Law § 105.10 (1). In summary, the People allege that a confidential informant contacted defendant, offering him an opportunity to rob drug dealers of a valuable supply of narcotics and/or cash. Defendant allegedly accepted the informant’s offer, and engaged the three codefendants to be part of the robbery gang.
A Queens County Drug Crime lawyer said that the defendants filed omnibus discovery motions, to which the People responded. The People also supplied the grand jury minutes to the court for in camera examination pursuant to. After examining the grand jury minutes, the court ordered the parties to submit additional memoranda of law on two jurisdictional questions. First, in light of the fact that the indictment does not contain a single narcotics-related charge, does the Grand Jury of the Special Narcotics Courts of the City of New York have subject matter jurisdiction. Second, assuming, arguendo, the Special Narcotics Grand Jury has subject matter jurisdiction, does it also have geographic jurisdiction
The CI testified in the grand jury. In summary, the informant testified that he had continuous conversations with defendant; however, his testimony is devoid of any references to where he or defendant was located when they had those telephone conversations. Furthermore, it is apparent from the grand jury minutes that none of the face-to-face meetings between the informant and the defendants 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, to which the witness responded: “[I]t was an operation that had been assigned to me with those four people [the defendants] that the foreman of the jury mentioned which 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 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. Because the State only has power to enact and enforce criminal laws within its territorial borders, there can be no criminal offense unless it has territorial jurisdiction.
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”
A defendant has the right under article I, § 2 of 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 in article I, § 2 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.
The guarantee to a defendant of the right to trial by a jury of the vicinage is historically regarded as “vital”; the limitation of the right was one of the grievances that led to the American Revolution.1
Because of the importance of this right, New York courts have given the jurisdictional exceptions in drug arrest Criminal Procedure Law article 20 “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.
In the early 1970s, the Legislature enacted an exception to the normal jurisdictional rules by creating the Special Narcotics Courts and the Special Narcotics Grand Jury. Motivated by the “crisis, which transcends the traditional jurisdictional boundaries of the counties,” and by the “ineffectiveness of official efforts to contain narcotics traffic due in significant part to the inability of the overburdened criminal justice system to cope with the enormous volume of narcotics cases”
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 CI’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.
In determining a motion to dismiss an indictment for legal insufficiency, the reviewing court must consider whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted 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 CPL 190.30 (1), the same rules which govern admission of evidence at criminal trials apply to grand jury proceedings, unless covered by an exception listed in CPL 190.30 (2). 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 requirement that the conduct have a materially harmful impact can only be satisfied by “a concrete and identifiable injury” to either the county’s governmental processes, or the welfare of the county’s community. To be materially harmful, the impact must be more than minor or incidental, and the conduct must harm “the wellbeing of the community as a whole,” not merely a particular individual. In addition, because the jurisdiction of the county seeking to prosecute must be established before the grand jury, the type of injury or offense contemplated by the particular effect statute must be “perceptible and of the character and type which can be demonstrated by proof before a Grand Jury.” Finally, because particular effect jurisdiction is to be applied only in “limited circumstances”, it has been rarely invoked.
The People contend that the requirements of “particular effect” jurisdiction are satisfied in this case because “the formulation of a concrete plan to carry out an armed robbery of a residential location within Manhattan is a harm that would affect the community as a whole, is distinct to the heavily drug infested areas of Manhattan, since the robbers targeted a narcotics stash location, and is a concrete harm. Specifically, a group of heavily armed individuals forcibly entering a residential building in a crowded section of Manhattan with the intent and willingness to use the weapons they are carrying would obviously create a grave risk of harm not just to the residents of the targeted apartment but to all other occupants of the building as well as any individuals they encountered while enroute into or out of the building. The formulation of the plan by the defendants was carried out with the intent that such a risk of harm take place in Manhattan and as such, would fall within the realm of CPL § 20.40(2)(c) providing a second means of establishing jurisdiction.”
Because “particular effect” jurisdiction is seldom invoked and rarely used, the Court of Appeals has developed very specific rules regarding its use. If a district attorney seeks to base jurisdiction for an indictment upon this theory, the prosecutor must specifically inform and instruct the grand jury on the requirements of the statute, must present evidence to the grand jury of the concrete and identifiable injury which it is alleged the county has suffered, and the indictment itself must specify the theory of jurisdiction and the specific effect, and the concrete and identifiable injury, which the defendant is being charged with presenting to the county.
Even if one were to assume, arguendo, that the conduct hypothesized by the People had actually occurred in New York County, it would not be the kind of harm “peculiar to New York County” which would give rise to “particular effect” jurisdiction. The harm described by the People is the sadly generic sort of harm which is incident to any robbery of this type. This court knows that every county in New York suffers from “drug infested areas,” and therefore runs the risk of this kind of robbery. Sadly, there is nothing unique or peculiarly harmful to New York County about innocent bystanders suffering from the deadly fall out of armed robbers intent on their mission. Marijuana was not found.
Finally, this theory of jurisdiction is unavailable to the People because it must be specifically proved before the grand jury, the grand jury instructed on it, and the theory pleaded in the indictment. Since this theory of jurisdiction made its first appearance in the People’s supplemental brief, it was neither proved before the grand jury nor specifically pleaded in the indictment.
In view of the foregoing, the indictment is dismissed with leave to re-present to a New York County Grand Jury, to the extent that the People can establish jurisdiction, or, alternatively, for re-presentation before a Bronx County Grand Jury.
Here in Stephen Bilkis and Associates, our Queens County Criminal attorneys are always available to hear your problems and give an instant advice to it. If you need an advice to your legal problems, don’t hesitate to contact us. For drug related crimes, we also have Queens County Drug lawyers who will inform you of the proper steps to undertake in case of this kind of case was filed against you. Contact us now, we will be glad to hear your problems.