People v. Cullen

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: JASEN; COOKE
• Citation: People v. Cullen, 428 N.Y.S.2d 456, 50 N.Y.2d 168, 405 N.E.2d 1021 (N.Y. 1980)
• Decision Date: 06 May 1980
• Parties: , 405 N.E.2d 1021 The PEOPLE of the State of New York, Appellant, v. Paul CULLEN, Respondent.

Page 456

428 N.Y.S.2d 456

50 N.Y.2d 168, 405 N.E.2d 1021

The PEOPLE of the State of New York, Appellant, v. Paul CULLEN, Respondent.

Court of Appeals of New York.

May 6, 1980.

Denis Dillon, Dist. Atty. (Anthony J. Girese and William C. Donnino, Asst. Dist. Attys., of counsel), for appellant.

Michael J. Obus and Matthew Muraskin, Mineola, for respondent.

OPINION OF THE COURT

JASEN, Judge.

The issue presented on this appeal is whether there is evidence in the record to support the jury's finding that Nassau County had geographical jurisdiction of the offense of which defendant was convicted.

Defendant, Paul Cullen, agreed to assist a confidential informant in obtaining a substantial quantity of peyote, a controlled substance. On February 9, 1976, the confidential informant telephoned defendant and arranged the sale which formed the basis of the instant criminal charges. Thereafter, the informant and an undercover police officer drove to defendant's home in Nassau County, picked up defendant and then proceeded, in the officer's car, to New York County where the actual sale was to occur. Upon arrival in New York County, the officer gave defendant $120, the agreed purchase price of the drugs. The officer and the informant then waited in the officer's car while defendant went to an undisclosed location to make the purchase. Defendant returned with the drugs a short time later and gave them to the officer. The three men then returned to Nassau County.

On April 13, 1976, defendant was indicted by a Nassau County Grand Jury and charged with criminal sale of a controlled substance in the second degree (Penal Law, § 220.41), criminal possession of a controlled substance in the second degree (Penal Law, § 220.18) and criminal possession of a controlled substance in the third degree (Penal Law, § 220.16). Prior to trial, defendant moved to dismiss the indictment upon the ground that the Nassau County Court lacked geographical jurisdiction of the offenses charged. This motion was denied. At the close of the People's case and again at the close of all the evidence, the defendant renewed his motion to dismiss. Each time the trial court denied the motion, ruling that it was for the jury to determined whether facts sufficient to support jurisdiction in Nassau County had been demonstrated.

Thereafter, the trial court charged the jury, without objection, that Nassau County would have jurisdiction of the offenses charged if the jury found either: (1) that defendant had formed an intent to sell or possess drugs in Nassau County such that this element of the crimes or an attempt to commit the crimes could be found to have occurred there; or (2) that the offense occurred in a private vehicle during a trip extending through more than one county.

The jury found the defendant not guilty of the crimes of criminal sale of a controlled substance in the second degree and criminal possession of a controlled substance in the third degree and guilty of criminal possession of a controlled substance in the second degree.

On appeal, the Appellate Division, Second Department, reversed defendant's conviction and dismissed the indictment, ruling that the fact that the sale occurred in New York County precluded, as a matter of law, any finding that Nassau County had jurisdiction of the offense of possession of a controlled substance in the second degree. There should be a reversal.

The judgment of conviction can be reversed as a matter of law only if there is no evidence in the record upon which the jury could have found jurisdiction. In this case, there is such evidence. Therefore, defendant's motion to dismiss was properly denied.

At trial, the confidential informant testified that during the return trip from New York County to Nassau County, the paper bag which contained the illegal drugs was passed around inside the car and that defendant at one point actually had possession of the drugs. On the basis of this testimony, the jury could easily have found that the offense of possession occurred in a private vehicle during a trip extending through more than one county. This being so, the Appellate Division erred in holding, as a matter of law, that the jury could not have found that Nassau County had jurisdiction of the offense of possession. Since defendant did not object to the trial court's charge on the issue of jurisdiction, this charge, although erroneous, has become the law of the case. And, on the basis of that charge, the jury could also have found that the defendant formed the culpable mental state which is the element of the crime of possession in Nassau County.

Inasmuch as the Appellate Division predicated its decision on the law, it is apparent that the court did not exercise its broad power to review questions of fact. (See CPL 470.15, subd. 1.) Accordingly, the case must be remitted to the Appellate Division for a determination of whether the jury's implicit finding, in accordance with the Trial Judge's instruction, that Nassau County had jurisdiction of the offense of possession, is against the weight of the evidence. If the court determines that the jury's finding of jurisdiction was, in fact, against the weight of the evidence,...