People v. Quitsch

64 A.D.2d 917, 407 N.Y.S.2d 889, 1978 N.Y. App. Div. LEXIS 12802

Opinion

—Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 6, 1977, convicting him of criminal sale of a controlled substance in the first and second degrees, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. No issue has been presented with respect to the facts. The defendant was convicted for the sale of cocaine to undercover officers on two separate occasions. The second sale actually occurred in Queens County. Defendant argues on this appeal that the geographical jurisdiction alleged by the District Attorney to sustain the trial of the second sale charge in Kings County, was a question of fact for the jury. We agree. There was evidence presented by both sides and a question of fact raised as to whether the requirements of CPL 20.40 were met. The questions of fact raised on this issue should have been presented to the jury. (See Matter of Steingut v Gold, 42 NY2d 311; People v Moore, 60 AD2d 638.) Furthermore, the court’s charge on entrapment improperly instructed the jury to first consider the merits of that defense and then, if it was rejected, consider the guilt or innocence of the defendant. This, too, was improper (see People v Johnston, 47 AD2d 897). Martuscello, J. P., Damiani, Margett and O’Connor, JJ., concur.