People v. Ebron
| Decision Date | 28 October 1982 |
| Citation | 456 N.Y.S.2d 308,116 Misc.2d 774 |
| Parties | The PEOPLE of the State of New York v. George EBRON, Defendant. |
| Court | New York Supreme Court |
Robert M. Morgenthau, Dist. Atty., New York County, for the People; Matthew Brief, Asst. Dist. Atty., of counsel.
Maurice Brill, New York City, for defendant.
The defendant has moved to vacate his guilty plea and to dismiss the indictment because of lack of jurisdiction. Alternatively, he seeks a discretionary order permitting him to withdraw his plea. Two questions are presented by this motion. The first is the proper county for prosecution of crimes committed aboard moving subways. The second is whether the appropriate county for prosecution in a case of this sort is a jurisdictional issue or one of venue only, which may be waived by a knowing guilty plea.
The defendant was indicted in New York County on January 22, 1982 for the crimes of attempted assault in the first degree, assault in the second degree and criminal possession of a weapon in the fourth degree. He was charged with a stabbing on New Year's Day 1982, aboard a subway train that was traveling from Manhattan to the Bronx.
Although defendant was arrested in the Bronx as he alighted from the train, Bronx Central Booking referred the case to this county because the complainant alleged he was stabbed while the train was still in Manhattan. Until this motion to dismiss, the defendant never moved either to dismiss for lack of jurisdiction or for a change of venue.
On August 16, 1982, the case was referred to this court for trial. For the first time, more than seven months after his arrest and having been continuously free on bail, the defendant advised his then attorney of alibi witnesses. Notwithstanding the untimeliness of the alibi notice, the court granted defendant a short adjournment to bring in those witnesses. Jury selection commenced, during the course of which the prosecutor interviewed the purported alibi witnesses. Both of them declined to sign alibi statements. At that point, after 10 jurors had been sworn, the defendant moved to withdraw his plea of not guilty and to plead guilty to the first two counts of the indictment.
In the course of his plea, defendant fully admitted his guilt. He stated, however, that although the assault occurred on the "D" train that had been traveling from Manhattan to the Bronx, the actual assault took place after 161st Street, and thus occurred in Bronx County.
The People at that time stated that the complainant would testify that the crime occurred, as had been indicated in the voluntary disclosure form, in Manhattan as the train was moving between 125th Street and 155th Street. (Plea minutes, p. 13.) This court ruled that pursuant to CPL 20.40(4)(f), venue lay in either county and the plea was entered.
On September 16, 1982, a new defense attorney filed the instant motion to vacate the plea and to dismiss, raising for the first time a lack of jurisdiction on the ground that the crime occurred in the Bronx and not in New York County. As noted, the defendant also invokes the court's discretion for permission to withdraw his plea. (CPL 220.60, subd. 3.) The People oppose, arguing that there is no jurisdictional defect and that because of the present unavailability of witnesses and consequent prejudice to the People, the plea should not be vacated.
The court declines to grant the motion for the following reasons:
1. Prosecution in New York County is not barred by defendant's claim that the crime occurred in the Bronx.
Because he contends this crime occurred after the subway train entered the Bronx, defendant argues that the courts of this county are without authority to entertain this prosecution. To the contrary, section 20.40(4) of the Criminal Procedure Code provides:
(f) an offense committed on board a railroad train, aircraft or omnibus operating as a common carrier may be prosecuted in any county through or over which such common carrier passed during the particular trip, or in any county in which such trip terminated or was scheduled to terminate.
Notwithstanding this clear language conferring authority to prosecute in New York County, defendant relies upon two recent Court of Appeals decisions, People v. Moore, 46 N.Y.2d 1, 412 N.Y.S.2d 795, 385 N.E.2d 535 and People v. Cullen, 50 N.Y.2d 168, 428 N.Y.S.2d 456, 405 N.E.2d 1021, for his claim that this county is without jurisdiction. Moore and Cullen are concerned not with the choice of forum for crimes aboard common carriers, but rather with crimes occurring in moving private vehicles. With regard to private cars, CPL section 20.40(4) provides:
(g) An offense committed in a private vehicle during a trip thereof extending through more than one county may be prosecuted in any county through which such vehicle passed in the course of such trip.
The Court of Appeals in Moore and Cullen held that where a crime occurs in a private vehicle, the People may avail themselves of the choice of forum provision of subsection (g), supra, only if the exact location of the crime cannot be determined. Where the exact location is clear and undisputed, however, a conviction is legally sufficient only in the county of the crime's commission. That is to say, where the location of the crime is evident and undisputed, a conviction is valid only in the county of occurrence and not in any other county through which the vehicle may have passed. (People v. Moore, supra, 46 N.Y.2d 1, 412 N.Y.S.2d 795, 385 N.E.2d 535.)
Moore and Cullen also instruct that the county of commission is a jury question, especially if there is a dispute as to location. Where location is contested, a jury should be instructed that venue is established if the People have proved by a preponderance either that the crime occurred in the county of prosecution or that the exact location cannot be ascertained and the People have proved that the vehicle passed through the county of prosecution. (People v. Moore supra; People v. Cullen, supra; 50 N.Y.2d at 174, 428 N.Y.S.2d 456, 405 N.E.2d 1021.)
Moore and Cullen are thus inapposite here for a variety of reasons. First, unlike Moore, where it was undisputed that the crime occurred elsewhere than the county of prosecution, the People here assert and intend to prove that the crime actually occurred in Manhattan. The complainant would so testify. On that basis alone, Moore is clearly distinguishable.
More significantly, even if the defendant challenged the location at...
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