People v. Carvajal

• Decision Date: 22 November 2005
• Citation: 845 N.E.2d 1225,6 N.Y.3d 305
• Parties: The PEOPLE of the State of New York, Respondent, v. Alvaro CARVAJAL, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 1225

845 N.E.2d 1225

6 N.Y.3d 305 (2006)

The PEOPLE of the State of New York, Respondent, v. Alvaro CARVAJAL, Appellant.

Court of Appeals of New York.

November 22, 2005.

Paul J. Angioletti, Staten Island, for appellant.

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

OPINION OF THE COURT

KAYE, Chief Judge.

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 N.Y.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 N.Y.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 A.D.2d 121, 758 N.Y.S.2d 652 [1st Dept.2003], lv. denied 100 N.Y.2d 595, 766 N.Y.S.2d 171, 798 N.E.2d 355 [2003]; People v. Camacho, 262 A.D.2d 238, 690 N.Y.S.2d 454 [1st Dept.1999], lv. denied 93 N.Y.2d 1015, 697 N.Y.S.2d 574, 719 N.E.2d 935 [1999]; People v. Lasso, 268 A.D.2d 313, 701 N.Y.S.2d 391 [1st Dept.2000]).

As defendant was charged with conspiracy, not only to possess drugs but also to transport them...