Possession of heroin and selling it.

The criminal Defendant had prior dealings with a group known to be engaged in drug trafficking, specifically, heroin trafficking, and specifically raised money to purchase from an undercover agent in Boston the four kilograms of heroin at issue, which they planned to resell in New York. Defendant, who held a doctorate in pharmacology, met with the head of the criminal organization in New York, A, and later that day traveled to Boston with two other members of the organization, B and C, under assumed names, taking with them $120,000 for the undercover agent’s courier fee, as well as equipment that could be used for testing the purity of heroin. When defendant, B and C arrived in Boston, they checked into a hotel (under assumed names) and had frequent telephone contact with A, who was still in New York. A briefly visited the three men in Boston, after which he returned to New York, where he made telephone contact with the undercover agent, to whom A provided the name, location and telephone number of B, who would carry out the drug transaction. The next day, the undercover agent spoke over the telephone with B, who told the agent to wait until he switched hotels. When they did meet, B showed the agent the $120,000 courier fee, told the agent that he planned to sell the heroin in New York, and then took a sample of heroin, which was then tested for its purity level. However, B ran into a plainclothes State Trooper in the stairwell whom B suspected of being a law enforcement official, and shortly thereafter called off the deal, on the ground that the heroin was of insufficient purity. This is a felony.

Here, the evidence established, beyond a reasonable doubt, that defendant and his accomplices came dangerously close to possessing the heroin in New York, even though the heroin was rejected on the ground of inferior quality. Defendant’s attacks on the sufficiency of the evidence were unpreserved and the court declined to review them in the interest of justice. If the court were to review the claims, it would still be found that the verdict was based on legally sufficient evidence. Further, the verdict was not against the weight of the evidence. Moreover, defendant’s jurisdictional claims were rejected. Jurisdiction for both crimes was established under CPL 20.20 (1) (a), since defendant committed an element of the offenses in New York. Defendant formed the intent to possess heroin in New York, and he and his codefendants took many steps in New York towards the completion of that crime, though they did not fully amount to an attempt until the Boston actions were effected. On the conspiracy count, defendant formed the intent and the agreement in New York, as well as many overt acts, and thus the entire crime was committed in New York, not just one element. Clearly, New York also obtained jurisdiction over both crimes pursuant to CPL 20.20 (2) (b), since both the possession and conspiracy statutes were designed to prevent the occurrence of a particular effect in New York, and the conduct of defendant and his codefendants was committed with the intent that it have such an effect in New York, regardless of whether any conduct took place in New York. As provided for under CPL 20.10 (4), when conduct constituting an offense 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, such conduct and offense have a particular effect upon such jurisdiction. The court rejected, as contrary to the statutory language and logic, the interpretation of CPL 20.10 (4) advanced in the landmark case of People v Puig that the term “community welfare” applied only to CPL 20.40, the county venue statute, and not to CPL 20.20, the State jurisdiction statute. The possession of illicit drugs in New York with intent to sell them to New Yorkers does have a materially harmful impact upon the jurisdiction at bar. What’s more, the jurisdiction was established over the attempted possession count under CPL 20.20 (2) (c), there being ample evidence of an attempt to possess heroin in New York, and over the conspiracy count under CPL 20.20 (2) (d). On defendant’s remaining arguments, these were considered but rejected including those contained in his pro se supplemental brief.

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