New York Criminal Lawyer Blog
A confidential informant (CI) contacted defendant M, and offered him an opportunity to rob drug dealers of a valuable supply of narcotics and/or cash. M allegedly accepted the offer and engaged the three codefendants to be part of the robbery gang. The case detectives instructed the CI to tell the defendants that the robbery location was at 1981 Sedgwick Avenue in the Bronx. On or about 25 October 2004, it was alleged that the CI and the four defendants loaded two vehicles with a number of weapons and went to the said location with the intention to commit a burglary and a robbery.
The Grand Jury of the Special Narcotics Courts of the City of New York voted for 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).
The defendants filed omnibus discovery motions. The People in response supplied the grand jury minutes to the court for in camera examination pursuant to CPL 210.30 (2). After examining the grand jury minutes, the court ordered the parties to submit additional memoranda of law on two jurisdictional questions: (a) in light of the fact that the indictment did not contain a single narcotics-related charge, whether the Grand Jury of the Special Narcotics Courts has subject matter jurisdiction?, and (b) assuming for the sake of argument it has, whether it also has geographic jurisdiction?
To enable the parties to fully inform on 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 (CPL 210.30 [3]). The Grand Jury made clarification which was confirmed by the case detectives, as to locations of the set up in Bronx and of the planning in Manhattan supposedly the original set up location.
In his testimony before the grand jury, the CI confirmed that he had continuous telephone conversations with M, however, no references as to where he or M were located when they had those conversations. It was also apparent from the grand jury minutes that none of the face-to-face meetings between the CI and the defendants occurred in Manhattan. The sole reference to Manhattan was contained in the CI’s statement of why he was at a certain place at a certain time, on which consisted of going to an apartment in Manhattan or in the Bronx with firearms, with guns, and was to rob sixty kilos of cocaine. The court made the following determinations:
(1) On the general issue of jurisdiction
The general rule in New York State for it to have criminal jurisdiction, was 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. Mere thoughts or plans do not meet the conduct requirement of Criminal Procedure Law § 20.20.
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, it 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.
A defendant has the right to trial by jury 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. This article incorporated the criminal common law as it stood at the time of independence, and included the right to be tried by a jury of the “vicinage,” the county where the alleged criminal conduct was committed. The guarantee to the defendant of this right was historically regarded as “vital”. Courts have long recognized that this right was “not to be lightly disregarded and that only the most compelling reason could justify trial by a jury not drawn from the vicinage.” Because of the importance of this right, New York courts have given the jurisdictional exceptions in 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 marijuana jurisdictional rules were 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 comprising the City of New York,” 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”.
Judiciary Law § 177-d (iii) provides: “Upon the application of the assistant district attorney in charge of the special narcotics parts appointed pursuant to the plan authorized by [§ 170-7-c], 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 a drug offense in any county wholly contained in a city having a population of one million or more involving the sale or possession of a narcotic drug and any other offense that could be properly joined therewith in an indictment.”
This Special Narcotics Grand Jury in New York County may exercise all the powers of a regular New York County Grand Jury. This means that as any grand jury impaneled in New York County, it must have geographic jurisdiction over the acts which they were seeking to indict. It enjoys expanded citywide jurisdiction as set forth in Judiciary Law § 177-d (iii) 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 People’s sole theory of geographic jurisdiction was explicitly presented to the grand jury. They conceded that there was no other testimony on that point although they argued extensively about the “reasonable inferences” they believed can be drawn from the bare comments relating to jurisdiction.
In summary, it was uncontested that the sole references to Manhattan before the grand jury, and the asserted basis of the grand jury’s New York County jurisdiction, were the “numerous phone calls from Manhattan made to the targets” and that “the targets understood that the drug location they were potentially going to rob was in Manhattan originally.” The CI’s testimony was bereft of any references to any phone calls being made from Manhattan, but he did 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, was 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 a defendant challenged geographic jurisdiction before trial, the jurisdiction of the county seeking to prosecute must have been established before the grand jury. The indictment in this case did not contain a single count charging sale or possession of narcotics; therefore, the expanded jurisdictional rule of Judiciary Law § 177-d (iii) is inapplicable.
(2) On 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 pursuant to CPL 20.40 (1) (b) and 20.60 (1)
As to the conspiracy counts, special jurisdictional rules apply: the geographic jurisdiction may established in the county in which the defendant 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. CPL 20.60 (1) 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 application of the above statutes, it first determined whether there was competent evidence of (1) phone calls actually made in New York County, and (2) if made, whether those phone calls were made in furtherance of the conspiracy.
Its analysis was guided by the familiar rules governing the motion to dismiss an indictment for legal insufficiency. Under these rules, 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.”(CPL 70.10 [1]) Hearsay evidence does not constitute competent evidence.
Pursuant to CPL 190.30 (1), the same rules which govern admission of evidence at criminal drug 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.
This court found that the scant evidence adduced before the grand jury was insufficient to establish geographic jurisdiction in any New York County Grand Jury. The case detective’s testimony regarding the “numerous phone calls made” was unacceptable hearsay evidence. As generously characterized by the People as a “general nature,” it 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 CPL 20.40 (1) (b). There was no testimony that the detective was a party to the conversation; that he was listening to the conversations on another line or on a wiretap; or even that he was with the CI 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 was based upon someone else’s explanation to him of what took place thus it was an unacceptable hearsay. Even the CI’s testimony before the grand jury was less helpful since it was devoid of any references as to where he or defendant M, were located during their telephone conversations. Despite the People’s urging that the court engaged in impermissible speculation about the whereabouts of the parties, it was also apparent from the grand jury minutes that none of the face-to-face meetings between the CI and defendants occurred in Manhattan. The court also rejected People’s assertion that communicating through cell phones gave a general ease with which one can travel between the two boroughs, that at least some of the conversations took place in Manhattan. In sum, the evidence presented to the grand jury of these phone calls was wholly incompetent to establish New York County jurisdiction under any theory. Crack possession was not involved.
(3) On the People’s second theory, that the grand jury had jurisdiction based on the fact that the defendants were led to believe that the robbery would take place either in the Bronx or in Manhattan
The court rejected this on the basis that “Mere thoughts or plans” do not meet the “conduct” requirement of CPL 20.20. If to consider the consequence of a jurisdictional scheme which confers jurisdiction on any contemplated location of a crime, if one could prove that at some point a defendant had discussed robbing a bank in Kansas, yet ultimately robbed a bank in Utah, the mere discussion of the Kansas bank as a potential robbery target would give Kansas jurisdiction to prosecute the Utah bank robbery. Merely to state this premise is to refute it.
(4) On the People’s alternative theory of jurisdiction for the first time in their supplemental brief. Heroin was not found.
People argued that New York County has “particular effect” jurisdiction pursuant to CPL 20.40 (2) (c). This theory of jurisdiction, which was variously called “particular effect” jurisdiction, “injured forum” jurisdiction, or “protective” jurisdiction, permits a criminal court in a particular county to exercise jurisdiction over an offense when — even though none of the conduct constituting the offense occurred within that county — “such conduct had, or was likely to have, a particular effect upon such county or a political subdivision or part thereof, and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein.” Conduct constituting an offense has a “particular effect” upon a county when it “produces consequences which, though not necessarily amounting to a result or element of such offense, have a materially harmful impact upon the governmental processes or community welfare of a particular jurisdiction, or result in the defrauding of persons in such jurisdiction.” (CPL 20.10 [4])
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 (executive, legislative or judicial branch of government), 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 well being 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 contended that they have satisfied the requirements of this theory of jurisdiction because the formulation of a concrete plan to carry out an armed drug robbery of a residential location within Manhattan was a harm that would affect the community as a whole. This was distinct to the heavily drug infested areas of Manhattan, since they targeted a narcotics stash location, thus a concrete harm. Specifically, being a group of heavily armed individuals forcibly entering a residential building in a crowded section of Manhattan with intent and willingness to use the weapons would obviously create a grave risk of harm not just to the residents of the targeted apartment but all other occupants of the building as well as any individuals they encountered while enroute in or out of the building.
Because this theory of jurisdiction was seldom invoked and rarely used, the Court of Appeals has developed very specific rules regarding its use: The prosecutor must specifically inform and instruct the grand jury on the requirements of the statute, must present evidence 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.
The Court of Appeals most recently analyzed the specific scope and application of “particular effect” jurisdiction in Matter of Taub v Altman (2004). Here it rejected an attempt by the New York County District Attorney to apply “particular effect” jurisdiction to confer jurisdiction in New York County over the filing of false tax returns where there was no evidence that the tax returns were either mailed from or received in Manhattan, or that defendants committed any other act in Manhattan establishing an element of the relevant offenses. It noted that there was “no dispute that defendant’s conduct, if true, had a materially harmful impact on the governmental processes or community welfare of New York City as a whole”. In rejecting the prosecution’s argument for such broad jurisdiction in that case, the Court noted that the statutory definition of “particular effect” was added to the original bill after “District Attorneys complained that the proposed statute gave all counties jurisdiction of all drug crimes and they gave, as an example, that under it any robbery or burglary of a bank in one county would cause an effect on depositors in many counties and the crime would be committed with intent and knowledge that it would have such effect.”
In this instant case, the evidence proffered was insufficient to establish that the harm suffered by the City was in any meaningful way peculiar to New York County. The facts do not even rise to the threshold level of Taub because no harmful conduct whatsoever occurred in New York County. The plan to rob drug dealers in Manhattan was wholly inchoate — the case agents, the CI, the defendants, and the guns actually ended up in the Bronx. The vivid scenario of harm to the New York County community laid out by the People in their brief was wholly speculative, far from the actual conduct which the Court of Appeals in Taub conceded “materially harmed the government of New York City.” Again, jurisdiction could not be established by thoughts, it should be established by conduct.
Lastly, this theory of jurisdiction where cocaine and heroin were unavailable to the People because it must be specifically proved before the grand jury, the grand jury instructed on it, and the theory was pleaded in the indictment. Since this theory made its first appearance in the People’s supplemental brief, it never met these requirements.
(5) On the final remaining jurisdictional issue of whether there was any basis for the Special Narcotics Grand Jury to assert jurisdiction over the conduct exclusively occurring in Bronx County
The only basis of such jurisdiction would be the expanded jurisdiction granted by Judiciary Law § 177-d (iii), that is, “an offense … involving the sale or possession of a narcotic drug and any other offense that could be properly joined therewith in an indictment.” The court found no basis whatsoever for New York County to assert jurisdiction over conduct which took place in the Bronx. Clearly, none of the charges, which related to burglary, robbery, and weapons possession, involved the “sale or possession of a narcotic drug.” The People argued extensively that the statute must be read expansively because defendants intended to rob narcotics dealers, their conduct fell within the ambit of the statute on drug crimes. The court, however, rejected this theory because the occupation of the intended victim cannot confer jurisdiction where it did not otherwise exist.
In view of the foregoing, the indictment was 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.
The Queens County Criminal Attorneys like Queens County Robbery Attorneys and Queens County Drug Attorneys at Stephen Bilkis & Associates can assist you on matters related to the above mentioned case. We keep abreast of the latest statutes and jurisprudence in order to provide you with the best legal service. Call or visit us at your most convenient time.