People v. Carvajal

• Decision Date: 09 December 2004
• Docket Number: 4350.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent v. ALVARO CARVAJAL, Appellant.
• Court: New York Supreme Court — Appellate Division

14 A.D.3d 165

786 N.Y.S.2d 450

2004 NY Slip Op 09210

THE PEOPLE OF THE STATE OF NEW YORK, Respondent v. ALVARO CARVAJAL, Appellant.

4350.

Appellate Division of the Supreme Court of the State of New York, First Department.

December 9, 2004.

APPEAL from a judgment of the Supreme Court, New York County (Bonnie G. Wittner, J.), rendered April 1, 1996. The judgment convicted defendant, after a jury trial, of conspiracy in the second degree and three counts of criminal possession of a controlled substance in the first degree, and imposed sentence.

Paul J. Angioletti, Staten Island, and Lynne F. Stewart, New York City, for appellant.

Robert M. Morgenthau, District Attorney, New York City (Patricia Curran and Mark Dwyer of counsel), for respondent.

OPINION OF THE COURT

SAXE, J.

This appeal arises out of an investigation into a large and complex interstate drug operation by which cocaine was transported from San Francisco to New York in a fleet of cars with hidden compartments. Defendant Alvaro Carvajal and numerous others were ultimately arrested in connection with this investigation, and defendant was convicted of conspiracy in the second degree and three counts of criminal possession of a controlled substance in the first degree. However, because the drugs with which he is charged were found in California, and because he, too, was located in California at the time the drugs were seized, defendant raises on appeal a challenge to his prosecution in this state for the possession charges. We must therefore address the issue of territorial jurisdiction.

Facts

The underlying investigation was begun in 1993 by the New York State Drug Enforcement Task Force, and ultimately focused on a Queens garage called W&G Auto Repair, operated by Freddy Lasso. Surveillance of W&G, combined with the information obtained from months of telephone calls intercepted pursuant to eavesdropping warrants, disclosed that the operations were headed by individuals in Queens, San Francisco and Chicago. It was determined that Freddy Lasso headed the New York operations along with Luis Grueso Camacho, and defendant was their partner on the West Coast. The transportation coordinator for the organization, located in Chicago, was known as Chicanero; he was neither arrested nor ever identified by his true name. These 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 these individuals who acted as managers did not come into physical contact with the drugs.

Defendant and Freddy Lasso spoke frequently by telephone, both to apprise 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, defendant 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, in May of 1994, defendant made a trip to New York, and visited W&G.

On May 19, 1994, one of the cars used by the operations was stopped and searched, in California, turning up 21 kilograms of cocaine along with business cards, including a W&G business card. Another of the cars was later retrieved from the parking lot of a California shopping center and searched, and an additional 30 kilograms of cocaine were recovered from a hidden compartment in it.

The next day, Freddy Lasso and defendant spoke of these events and discussed the need to protect the drugs hidden in the "stash house." Defendant assured Lasso 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 Chicago partner had stolen narcotics, suggesting that he be interrogated.

A June 15, 1994 search of the California "stash house" netted 23 more kilograms of cocaine. Defendant thereafter paged Freddy Lasso 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, defendant had allowed another dealer named Tabla to store in the house. Defendant said he planned to account for the remaining drugs in another stash house as best he could. Freddy told defendant to forget about Tabla's money and get the drugs out of California as fast as he could.

Evidence thereafter obtained in New York in a series of raids further confirmed the connection between the New York and California operations, and further connected W&G with a garage next door to it, in which were found several additional cars with hidden compartments installed. Defendant, Freddy Lasso, and others were arrested in late September 1994.

Discussion

[1] Various related issues arise based upon the assertion that this state lacked territorial jurisdiction to prosecute the three counts of possession of a controlled substance in the first degree.

"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" (People v McLaughlin, 80 NY2d 466, 471 [1992], citing Restatement of Conflict of Laws §§ 425, 428, and Nielsen v Oregon, 212 US 315 [1909]). Territorial jurisdiction "goes to the very essence of the State's power to prosecute" and therefore may never be waived and must be proved beyond a reasonable doubt (id.).

Criminal Procedure Law § 20.20, which in essence requires that "either the alleged conduct or some consequence of it must have occurred within the State" (see McLaughlin at 471), sets forth in full the circumstances under which New York State may assert criminal jurisdiction:

"Except as otherwise provided in this section and section 20.30, 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:

"(a) An element of such offense; or

"(b) An attempt to commit such offense; or

"(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; or

"2. Even though none of the conduct constituting such offense may have occurred within this state:

"(a) The offense committed was a result offense and the result occurred within this state. If the offense was one of homicide, it is presumed that the result, namely the death of the victim, occurred within this state if the victim's body or a part thereof was found herein; or

"(b) The statute defining the offense is designed to prevent the occurrence of a particular effect in this state and the conduct constituting the offense committed was performed with intent that it would have such effect herein; or

"(c) The offense committed was an attempt to commit a crime within this state; or

"(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; or

"3. The offense committed was one of omission to perform within this state a duty imposed by the laws of this state. In such case, it is immaterial whether such person was within or outside this state at the time of the omission."

Defendant concedes that New York had jurisdiction to prosecute him on the conspiracy charge under CPL 20.20 (2) (d). 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 California. The portion of the territorial jurisdiction statute applicable here is CPL 20.20 (1) (a), which requires the prosecution to establish that an element of the crime occurred in New York. Defendant contends that none of the elements of that crime may be said to have occurred in New York.

Indeed, we are aware of no other case in which a defendant was convicted of possession of a controlled substance when neither the drugs at issue nor the defendant was in New York at the time of the offense. While in People v Kassebaum (95 NY2d 611 [2001], cert denied 532 US 1069 [2001]), the Court of Appeals upheld the conviction of the defendant for attempted possession of narcotics that were located in Massachusetts, there is an important distinction between attempted possession and possession. The attempt crime includes as an element that the defendant "engag[ed] in conduct which tends to effect the commission of such crime" (Penal Law § 110.00); therefore, because the defendant in Kassebaum had engaged in conduct in New York that manifested an intent to obtain heroin and return with it to New York, the People successfully established that an element of the crime had occurred in this state (95 NY2d at 621).

However, despite the absence of a prior similar case, we conclude that neither defendant's being situated in California, nor the drugs at issue having ultimately been seized in California, prevents his prosecution in New York for possession of those drugs. The evidence amply supports the People's claim that an element of the crime occurred in this state.

The elements of this crime are merely the knowing and unlawful possession of four or more...