An underlying investigation was conducted and it was focused on a garage operated by a man. The surveillance of the garage, combined with the information obtained from months of telephone calls intercepted pursuant to eavesdropping warrants, disclosed that the operations were headed by criminal individuals in three different cities. It was determined that the man headed the New York operations along with another, and the offender in this matter was their partner. The said individuals employed many others to drive, store, and otherwise take care of the drugs and equipment during the process. Indeed, the transportation and storage of the drugs was carefully planned so that the said individuals who acted as managers did not come into physical contact with the criminal drugs.
The offender and the man spoke frequently by telephone, both to tell one another about the progress of arranging for cars with the necessary hidden compartments and to report the progress of the trips by which drugs were transported to New York. When problems arose, such as a car being stopped or a driver being arrested, they discussed over the telephone how to deal with the situation. In one intercepted conversation, the offender specifically referred to his responsibility and to his intention to take care of the workers’ travel expenses related to problems encountered on a particular trip. And, on one occasion, the offender made a trip to New York, and visited the garage.
Afterward, one of the cars used by the operations was stopped and searched, turning up 21 kilograms of cocaine along with business cards, including the garage’s business card. Another of the cars was later retrieved from the parking lot of one shopping center and searched, and an additional 30 kilograms of the drug cocaine were recovered from a hidden compartment in it.
The next day, the man and the offender spoke of the said events and discussed the need to protect the drugs hidden in the stash house. The offender assured the man that it had already been done and that everything was fine. They also discussed that even without the confiscated narcotics, other narcotics sales would permit them to break even, although they would not make a profit. Later they discussed the possibility that their other partner had stolen narcotics, suggesting that he be interrogated.
Subsequently, a search of the stash house netted 23 more kilograms of cocaine. The offender thereafter paged the man and reported the details to him. It also came out in their conversation that the house had also contained a substantial amount of cash that, as a favor, the offender had allowed another dealer to store in the house. The offender said he planned to account for the remaining drugs in another stash house as best he could. The man told the offender to forget about the dealer’s money and get the drugs out of the house as fast as he could. Marijuana was not a factor.
Evidence thereafter obtained in New York in a series of raids and it further confirmed the connection between the two operations, and further connected the garage with a garage next door to it, in which were found several additional cars with hidden compartments installed. The offender, the man, and others were then arrested.
The offender admitted that New York had jurisdiction to prosecute him on the conspiracy charge. However, he argues that there was no basis for territorial jurisdiction with regard to the three charges of criminal possession of a controlled substance in the first degree, regarding the cocaine seized in other city. Sources revealed that the portion of the territorial jurisdiction statute applicable in the matter is that it requires the prosecution to establish that an element of the crime occurred in New York. The offender also contends that none of the elements of that crime may be said to have occurred in New York.
Indeed, the court is aware of no other case in which an offender was convicted of criminal possession of a controlled substance when neither the drugs at issue nor the offender was in New York at the time of the offense. But, despite the absence of a prior similar court case, the court conclude that neither the offender’s being situated in other city, nor the drugs at issue having ultimately been seized in other city, it prevents his prosecution in New York for possession of those drugs. Further, the evidence adequately supports the complainant’s claim that an element of the crime occurred in the state.
Sources revealed that the elements of the man’s crime are merely the knowing and unlawful possession of four or more ounces of a narcotic drug. Such possession may be physical, or it may be constructive. Also, the concept of constructive possession permits a conviction of possession upon a showing that even if the offender did not have physical possession, he exercised dominion and control over the contraband. Moreover, the offender may physically be elsewhere, separate from the drugs, as long as he exercised dominion and control over the locations where the drugs were discovered or over the subordinates who were physically in possession of the drugs.
Previously, the trial court also discussed with the attorney the rule that territorial jurisdiction must be proved beyond a reasonable doubt and cannot be waived. At that point, each offender’s attorney specifically withdrew any request that the jury be charged on the issue of territorial jurisdiction.
The offender now argues that the strategy adopted by his attorney amounted to an impermissible waiver of the issue of territorial jurisdiction.
The court further stated that the remaining issues raised on appeal are unpreserved and do not benefit the offender. The court also avers that the use of the police officers as experts to explain the coded language of the intercepted telephone calls was proper. While the officer went on to give his opinion as to what the participants were doing in the activities described in the coded language, no objection was made by offender to the questions posed or the answers supplied, and any objection to the error is, accordingly, unpreserved, and the court decline to review it.
The court also stated that in any event, to the extent that there was an error in the extent of the officer’s expert testimony, it was minor and harmless.
Since the remainder of the offender’s ineffective assistance claim largely involves matters of trial counsel’s strategy and preparation, the court stated that it cannot be reviewed on the record. Moreover, the offender’s claim that he was deprived of his right to retain an attorney of his choice rests entirely on factual assertions outside the record and is therefore unreviewable. While offender faults his trial counsel for failing to make an assortment of drug motions, applications and objections, he has not shown that any of the said devices would have succeeded, or that the absence of those actions had any adverse impact on his defense.
Finally, the court perceives no basis for reducing the sentence. As a result, the judgment of the Supreme Court convicting the offender of conspiracy in the second degree and three counts of criminal possession of a controlled substance in the first degree, and sentencing him, as a second felony offender, to an aggregate term of 35 years to life, is affirmed.
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