People v. Carvajal

845 N.E.2d 1225, 6 N.Y.3d 305, 812 N.Y.S.2d 395

Opinions

OPINION OF THE COURT

Chief Judge Kaye.

In this prosecution for first degree criminal possession of a controlled substance and conspiracy, we are called upon to determine whether New York rightly exercised territorial jurisdiction over the possession offenses, when the defendant resided, and the cocaine was seized, in California. We conclude that, pursuant to the authority granted by CPL 20.20 (1) (c), New York was vested with jurisdiction to prosecute.

Background

At trial, the People presented evidence that in 1993, the New York State Drug Enforcement Task Force began investigating a narcotics trafficking ring centered at a Queens County garage known as W & G Auto Repair, which was operated by Freddy Lasso. Surveillance of W & G and wiretaps revealed evidence of an interstate scheme by which cocaine was secreted in hidden automobile compartments and driven from San Francisco to New York. Freddy Lasso headed the New York operation along with Louis Grueso Camacho (Grueso); defendant was their West Coast partner. A man known as Chicanero oversaw transportation of the drugs cross-country. Defendant and his cohorts employed other individuals to drive, store and protect the drugs and equipment.

Between April 13 and April 17, 1994, the task force intercepted a series of telephone calls defendant had with Grueso, Freddy Lasso and Chicanero about a planned shipment of cocaine from San Francisco to Queens County. The drugs were slow in arriving due to an overheated car. Defendant reported to Freddy Lasso that “it would go five miles and then it would stop.” Defendant planned to send a backup car to meet the failing vehicle, so that, as Freddy Lasso told Grueso, the drugs could “finally get here.” Task force members tried to intercept the delivery in Queens on April 17, but arrived too late at the exchange location, believed to be a McDonald’s at 204th Street and Northern Boulevard. That night, Freddy Lasso called defendant and told him that the transport of at least 65 kilograms of cocaine was a success.

Based on a series of calls intercepted between May 13 and May 19, 1994, the task force learned of plans to use three cars (white, blue and green) to transport cocaine from San Francisco to New York. Defendant was in New York City for four days, from May 13 to May 16, meeting with his cohorts.¹ During his stay, he made telephone calls to his California subordinates. He gave detailed instructions to them on preparing the cocaine for shipment to New York City via automobile, and planned to pay the travel expenses of a driver.

After returning to California, defendant continued his preparations. On May 17, he told Freddy Lasso that he would put 21 kilograms of cocaine in the white car for Hans Vargas (a Chicanero employee) to pick up. Defendant later reassured Freddy Lasso that he would “dress up the girls” (prepare the cocaine) for delivery to New York. Freddy Lasso told him to “fill up the space” in the blue and green cars.

On May 19, task force members stopped Vargas just outside the San Francisco airport; after a brief search of his white Mazda, no drugs were located and Vargas was sent on his way. Vargas parked in the airport garage and entered the terminal, and upon his return to the car, the task force team intervened, finding 21 kilograms of cocaine in hidden compartments in the panels of the car’s rear doors. Later that evening, task force members stopped a blue Volvo which had been left at a suburban San Francisco shopping center by defendant’s employee Victor Hugo. At the time of the stop, Chicanero employee Hector Rivas was driving the Volvo. Thirty kilograms of cocaine were found in a hidden trap behind the dashboard. Following these setbacks, defendant and Freddy Lasso spoke by telephone and made plans to move their drug inventory to a new location.

The task force learned that the cohorts stored a large amount of cocaine in a “stash house” in Daly City, outside San Francisco. On the night of June 15, 1994, police recovered 23 kilograms of cocaine and more than $433,000 from the stash house. Apparently, defendant and an underling entered the garage at the stash house while task force agents were inside; defendant later told Freddy Lasso that he saw some strange people in the house and left. Defendant said that he doubted whether the people he had seen in the house were police. Grueso angrily told defendant that he had 48 hours to get him “that material.” Freddy Lasso told defendant to “load up” a car with drugs bound for New York as soon as possible.

Defendant was arrested in California in September 1994; Freddy Lasso and other conspirators were also arrested. On October 15, 1994, defendant, Freddy Lasso, Grueso, Lasso’s brothers Raul and Nelson Lasso, and others were charged in a special narcotics indictment with second degree conspiracy.² Defendant, Freddy Lasso and Grueso were also charged, acting in concert, with three counts of first degree criminal possession of a controlled substance (Penal Law § 220.21 [1]) for the separate quantities of drugs seized in California.³

At a joint trial of defendant, Freddy Lasso, Grueso and Raul Lasso, the court addressed the issue of territorial jurisdiction:

“I have had further time to reread People v. McL[a]ughlin, which I believe is 80 NY 2d. The way I read that Court [of] Appeals case, the question of the territorial jurisdiction has to be raised or as the Court says, ‘put in issue in front of the jury’

“My interpretation would be that the same way you put in issue justification, voluntariness of [a] statement, something has to be raised about it and then I give it.

“So far in this case no one has raised anything about territorial jurisdiction . . .

“So what I’m saying to you, if you disagree with my interpretation of 80 NY 2d, People v. McL[a]ughlin, let me know, but if you take that in combination with all the other law and charge, it has to be raised as a jury question, the same way voluntariness can be raised if there were questions about it at the time and then I charge the jury.

“I guess I’m talking to myself. So I’ll end the conversation with myself and I think that [it] hasn’t been raised yet, unless the [d]efense either are putting on a case, brings something out in cross-examination, I don’t believe I need to charge it. If anyone wants to address that—

“[Counsel for defendant]: Judge, we still have [a police witness] on cross-examination. It can be brought out during cross-examination.

“the court: You hear what I just said? Unless it’s raised as an issue. I have the case right here. I’m sure you all read it. They said if it’s disputed, if it’s put in issue at trial. I think all [d]efense counsel knows where they’re going.

“Is anyone putting it in issue, that’s my question.”

After further discussion, counsel for Freddy Lasso stated that jurisdiction “will be put in” issue, and asked for time to read the McLaughlin decision.

Subsequently, the court proposed to submit six interrogatories to the jury, two for each possession count, under two territorial jurisdiction sections: CPL 20.20 (1) (a) (jurisdiction established when conduct is committed in New York sufficient to establish an element of the offense) and CPL 20.20 (1) (c) (jurisdiction established when conduct is committed in New York sufficient to establish a conspiracy to commit the offense). Counsel for defendant stated “We never asked for it. [Counsel for Grueso] and myself never asked for it.” Counsel for Grueso then stated:

“I will speak on behalf of all the defendants. We had a lengthy discussion this morning after your Honor gave us copies of the proposed charge with the interrogatories. After reviewing that with counsel and the defendants, the defendants have agreed to withdraw the request for territorial jurisdiction.”

The trial court, as requested by defendants, did not submit the interrogatories. Rather, the court instructed that to convict on drug possession, the jury had to find that the defendants committed the elements of that crime in the County of Queens, in New York City, and in the State of California. The court further advised the jury, without objection by defense counsel, that

“[y]ou should be aware that I have referred to many of the alleged overt acts as telephone conversations. The law in this regard says under Article 20.60 of the Criminal Procedure Law, ‘[a]n oral or written statement made by a person in one jurisdiction to a person in . . . another jurisdiction by means of telecommunications is deemed to be made in each such jurisdiction.’ ”

Defendant was convicted of three counts of first degree criminal possession of a controlled substance, as well as one count of conspiracy in the second degree, and was sentenced as a second felony offender to an aggregate term of 35 years to life. The Appellate Division affirmed defendant’s convictions, concluding that territorial jurisdiction over the possessory offenses had been established under CPL 20.20 (1) (a) in that defendant’s telephone conversations with his New York-based accomplices were deemed New York conduct sufficient to establish an element of the offense. Defendant’s cohorts in the conspiracy were also convicted as charged (see People v Lasso-Reina, 305 AD2d 121 [1st Dept 2003], lv denied 100 NY2d 595 [2003]; People v Camacho, 262 AD2d 238 [1st Dept 1999], lv denied 93 NY2d 1015 [1999]; People v Lasso, 268 AD2d 313 [1st Dept 2000]).

As defendant was charged with conspiracy, not only to possess drugs but also to transport them to New York, we conclude that the most logical basis for New York’s assertion of jurisdiction over defendant is through that very conspiracy—occurring in this state—to commit the possessory offenses (see CPL 20.20 [1] [c]). Without reaching the alternative basis for jurisdiction under CPL 20.20 (1) (a), we affirm based on CPL 20.20 (1) (c).

Discussion

This case comes to us in a somewhat unusual posture, in that at trial, defendant never moved for a trial order of dismissal (CPL 290.10 [1]) on the ground that the People failed to prove jurisdiction, and rejected the court’s offer to place the interrogatories before the jury. Rather, defendant relinquished his opportunity to hold the People to their burden of proof, and did not preserve his current contention that the jury should have decided whether the People proved jurisdiction beyond a reasonable doubt. That claim is not reviewable in this Court (see e.g. People v Gray, 86 NY2d 10, 22 [1995]).

People v Greenberg (89 NY2d 553 [1997]) does not mandate a different conclusion. In Greenberg, a case implicating venue concerns, the People contended that the defendant waived his claim of defect by failing to object pretrial to the county of prosecution. We disagreed, holding that, because the defendant was tried without a jury, it was sufficient that defense counsel alerted the court at the close of the People’s case to the People’s alleged failure to establish venue. We also reiterated the distinction between venue and territorial jurisdiction, observing that “venue issues—which relate only to the proper place of trial, rather than to the power of the court to hear and determine the case—are waivable. Failure to request a jury charge on venue thus amounts to waiver” (Greenberg, 89 NY2d at 556 [citation omitted and emphasis added]). Implicit in Greenberg was our conclusion that, although a defendant’s failure to request a jury charge on territorial jurisdiction amounts to waiver of a jury charge claim, that failure does not amount to waiver of the fundamental question whether—as a matter of law—this State has the power to hear the case.

Indeed, territorial jurisdiction implicates the State’s inherent authority to prosecute and punish a suspect for alleged criminal conduct, and thus we address the law question whether, in the circumstances presented here, New York was vested with that power in the first instance (see People v McLaughlin, 80 NY2d 466, 470-472 [1992]).

At common law, it was settled that jurisdiction over a felony offense was vested only in the state where the felony was completed (see People v Kassebaum, 95 NY2d 611, 617 [2001], citing People v Werblow, 241 NY 55, 60 [1925]). While long accepting this principle as a jurisprudential underpinning, we have nevertheless recognized its substitution by statutes that have broadened the scope of territorial jurisdiction (see Kassebaum, 95 NY2d at 617, quoting People v Stokes, 88 NY2d 618, 624 [1996]). Our statute, CPL 20.20, has codified the general principle that, for New York to exercise criminal jurisdiction, some alleged conduct or a consequence of that conduct must have occurred in the state. The People at trial claimed jurisdiction both under CPL 20.20 (1) (a) and CPL 20.20 (1) (c).

Without reaching CPL 20.20 (1) (a), we conclude that territorial jurisdiction over the possessory offenses in this case was established under CPL 20.20 (1) (c), which provides that

“a person may be convicted in the criminal courts of this state of an offense defined by the laws of this state, committed either by his own conduct or by the conduct of another for which he is legally accountable pursuant to section 20.00 of the penal law, when:

“1. Conduct occurred within this state sufficient to establish: . . .

“(c) A conspiracy or criminal solicitation to commit such offense, or otherwise to establish the complicity of at least one of the persons liable therefor; provided that the jurisdiction accorded by this paragraph extends only to conviction of those persons whose conspiratorial or other conduct of complicity occurred within this state” (CPL 20.20 [1] M).

Plainly, jurisdiction over an offense exists based on a conspiracy occurring in New York to commit that offense. Further, jurisdiction exists only for those defendants whose criminal acts in furtherance of the conspiracy occurred in New York. Here, the question is whether there was evidence of defendant’s conduct in New York sufficient to establish his conspiracy to commit first degree criminal possession of a controlled substance.⁴ We conclude that there was.

Defendant was charged with and convicted of second degree conspiracy, and makes no claim that New York lacked jurisdiction over that offense. Indeed, he acknowledges that the conspiracy alleged was broader than the possession counts; in his brief, he admits that the conspiracy as set forth in the indictment “charged not only the possession, but the ‘transportation of multiple kilograms of cocaine from the San Francisco, California area to New York City.’ ”⁵

With respect to possessory crimes, the Legislature has defined criminal possession in terms of dominion and control, and unlawful possession is a continuing offense (Penal Law § 10.00 [8]; see Matter of Johnson v Morgenthau, 69 NY2d 148, 151-152 [1987]). In this case, the jury concluded based on ample evidence, uncontested by defendant on appeal, that defendant and his cohorts exercised dominion and control over large quantities of cocaine in California on three separate occasions between mid-May and June 15, 1994 (see generally People v Fuente, 79 NY2d 561, 574 [1992] [observing that a defendant may constructively possess drugs by exercising dominion and control over them through his authority over the person who physically possesses them, or through his access to or control over the place where they are kept]). Prior to and during that period, defendant and his cohorts were engaged in an ongoing plot to bring that cocaine, located in California, to New York.⁶

Two facts make a clear case for jurisdiction to prosecute defendant under CPL 20.20 (1) (c): first, defendant was physically present in New York for some of the conspiratorial conduct on which jurisdiction is predicated; and second, the drugs in question were to be shipped to New York. Defendant flew to New York in May, and while in this state, he made out-of-state phone calls to underlings, met with New York cohorts and conspired to transport cocaine here.⁷

Defendant contends that his telephone calls from California to New York counterparts amount merely to conduct having some “nexus” to this state, not conduct occurring within this state. However, under CPL 20.60 (1), defendant’s telephonic statements to his accomplices here are deemed to be New York conduct (see People v Giordano, 87 NY2d 441, 449 [1995] [“the Criminal Procedure Law provides that oral statements made over the telephone are deemed to be statements made in both the sending and receiving” jurisdictions pursuant to CPL 20.60 (1)]). In those calls, he spoke with Freddy Lasso and others concerning their joint efforts to move drugs from California to New York.

Defendant had conspiratorial telephone conversations with Freddy Lasso concerning the 21 kilograms of cocaine recovered on May 19 from the white Mazda. They discussed the fact that these drugs had been removed from a stash house, that the white car was ready for Hans Vargas to pick up, that police had searched Vargas’s car and that Freddy Lasso directed Vargas to return to the car from the airport terminal. Defendant and Freddy Lasso also engaged in several telephone conversations regarding the 30 kilograms of cocaine seized from the blue Volvo on May 19. Defendant told Lasso that these drugs had been removed from a stash house and that he was waiting for Victor Hugo to park the car at the shopping center and leave the keys so that the car could be picked up. Additionally, defendant arrived at the Daly City stash house on June 15, while agents were executing a search warrant and recovering 23 kilograms of cocaine and more than $433,000. The next day, defendant had several telephone conversations with Freddy Lasso and Grueso about the details of the police raid, defendant’s narrow escape from the house, and the loss of the cocaine and cash.

Thus, while he was present in this state, both physically and by telephone defendant conspired with his accomplices and engaged in overt acts in furtherance of their possession of significant quantities of cocaine and their plan to transport the cocaine to New York.

Relying on People v Muro (223 AD2d 563, 564 [2d Dept 1996]), defendant further maintains that New York’s jurisdiction over the conspiracy count cannot he “bootstrapped” over the possessory offenses because jurisdiction must be independently established for each of the three drug possession counts. Muro does not support defendant’s claim. There, the People conceded that the court’s charge to the jury incorrectly instructed that a finding of geographic jurisdiction on one count effectively vested Nassau County with jurisdiction over all counts charged in the indictment. In this case, however, compelling evidence of a conspiracy tied defendant to each of the three possession counts.

A few responses to the dissent are in order. First, because we conclude that jurisdiction is predicated on a conspiracy in New York to possess cocaine, we need not consider whether jurisdiction might also be established under CPL 20.20 (1) (a) or any other theory (see Kassebaum, 95 NY2d at 621).⁸ We are bound, of course, by principles of judicial restraint not to decide questions unnecessary to the disposition of the appeal.

Second, at trial, defendant never alleged any constitutional violation, federal or state, concerning his prosecution by New York (see dissenting op at 321-322). Defendant’s references in his brief to article I, § 2 of the New York State Constitution are offered in support of his claim that “New York courts have given the jurisdictional exceptions in Criminal Procedure Law Article 20 ‘a restrictive interpretation and operation’ ” (quoting Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 20.40 [1981]). Nowhere in his brief does defendant contend that, on a constitutional ground, the Legislature lacked the power to vest jurisdiction in the manner it has chosen. The dissent’s assertions that defendant’s convictions violate article III, § 2 of the Federal Constitution, the Sixth Amendment and article I, § 2 of the State Constitution are premised on theories that were simply not raised by defendant at trial—or indeed in this Court.

Third, we perceive no “extension” of Kassebaum in our ruling (see dissenting op at 324-325). In Kassebaum, territorial jurisdiction over the crime of attempted criminal possession of a controlled substance was established under CPL 20.20 (1) (a)—a different subsection than that discussed here.

Finally, at bottom, our dissenting colleague maintains that our holding is correct only if the possession offense—the object of the conspiracy—is actually committed in New York (dissenting op at 330). The Legislature, however, concluded otherwise. In this coast-to-coast drug trafficking operation, defendant conspired in New York with his New York cohorts to bring cocaine to New York, thus affording a basis for the assertion of jurisdiction under our statutory scheme to prosecute him, jointly with his coconspirators, here. Defendant’s contention that his trial attorney was ineffective lacks merit.

Accordingly, the order of the Appellate Division should be affirmed.

1 . On May 13, a call received at W & G confirmed that defendant had just arrived in New York from San Francisco. During the call, Freddy Lasso informed a worker in the organization of defendant’s hotel room and telephone number. On May 16, task force members followed defendant, Louis Grueso and a third individual from W & G to the United Airlines Terminal at JFK. Two agents purchased tickets and took the same flight as defendant to San Francisco.

2 . Freddy Lasso and Raul Lasso were additionally charged with first degree criminal sale of a controlled substance and first degree criminal possession of a controlled substance for a sale of three kilograms of cocaine to another individual on June 6, 1994.

3 . Prior to trial, counsel for Freddy Lasso moved to dismiss for lack of territorial jurisdiction. That motion, which defendant did not join, was denied.

4 . “A person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct” (Penal Law § 105.15). At the time of defendant’s crimes, a person was guilty of criminal possession of a controlled substance in the first degree when he knowingly and unlawfully possessed one or more preparations, compounds, mixtures or substances of an aggregate weight of four ounces or more containing a narcotic drug (former Penal Law § 220.21 [1]). Only jurisdiction is disputed by defendant, not sufficiency of the evidence.

5 . Defendant posits that New York established jurisdiction over the second degree conspiracy count under CPL 20.20 (2) (d), which confers jurisdiction over a conspiracy where, “[e]ven though none of the conduct constituting such offense may have occurred within this state: ...(d) The offense committed was conspiracy to commit a crime within this state and an overt act in furtherance of such conspiracy occurred within this state.” (CPL 20.20 [2] [d] [emphasis added].) The dissent also appears to agree that “[territorial jurisdiction over conspiracy was established. That issue is not disputed in this case” (dissenting op at 324). Notwithstanding a CPL 20.20 (2) (d) analysis, the question before us is whether, under CPL 20.20 (1) (c), there was conduct occurring in New York sufficient to establish a conspiracy to commit the substantive offense of first degree criminal possession of a controlled substance. If there was such New York conspiratorial conduct, then jurisdiction over the possession is established.

6 . The sufficiency of the proof of first degree criminal possession is not before us; nor do we rely on Fuente for the proposition that defendant constructively possessed drugs in New York. Constructive possession occurring within New York’s physical boundaries is simply not required to assert jurisdiction under CPL 20.20 (1) (c).

7 . This would be a harder case if neither physical presence nor plans to bring the drugs to this state were evident and the only connection between defendant’s criminal conduct and New York consisted of telephone calls in which he spoke from California to his New York accomplices and coconspirators. That case is not before us and we express no opinion on it.

8 . The dissent would require that conduct establishing at least an element of the offense, or the entire offense, occur in New York (dissenting op at 327). Yet the relevant statutory provisions are set forth in the disjunctive: CPL 20.20 (1) (a) requires that an element of the offense occur in New York, but CPL 20.20 (1) (c), on which our holding is grounded, does not. Similarly, the dissent concludes that despite CPL 20.60 (1), defendant’s telephone calls to New York did not establish an element of possession here (see dissenting op at 329). Again, the interstate calls to New York, deemed to have occurred here by statute, aid in establishing jurisdiction over the conspiracy to commit the possessory offense here.