People v. Kellerman

• Decision Date: 26 July 1984
• Citation: 479 N.Y.S.2d 815,102 A.D.2d 629
• Parties: The PEOPLE of the State of New York, Respondent, v. Rudy KELLERMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 815

479 N.Y.S.2d 815

102 A.D.2d 629

The PEOPLE of the State of New York, Respondent, v. Rudy KELLERMAN, Appellant.

Supreme Court, Appellate Division Third Department.

July 26, 1984.

Gerald B. Lefcourt, New York City (Erica Horwitz, New York City, of counsel), for appellant.

Michael Kavanagh, Dist. Atty., Kingston (Marsha Solomon, Kingston, of counsel), for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and HARVEY, JJ.

MAHONEY, Presiding Justice.

On December 4, 1982, the New York Attorney-General's Organized Crime Task Force arrested Erich Heinze for drug trafficking. In return for leniency, Heinze agreed to implicate his suppliers. In furtherance of that agreement, Heinze telephoned defendant in Aspen, Colorado, to arrange a shipment of cocaine to New York City. Defendant, after he shipped two kilograms of cocaine to that metropolis, was indicted in Ulster County on two counts of conspiracy in the second degree. After defendant's motion to dismiss the indictment on the ground, inter alia, that Ulster County lacked geographical jurisdiction, was denied, defendant pleaded guilty to one count of conspiracy in the second degree in satisfaction of the indictment and was sentenced to two and one-third to seven years' imprisonment. On this appeal, defendant challenges the geographical jurisdiction of the Ulster County Court and the alleged excessiveness of the sentence.

While the prosecution does not argue that defendant waived his right to review of the denial of his motion to dismiss the indictment on the ground of geographical jurisdiction, we are constrained to address that issue since failure to do so would not be in keeping with appellate policy of declining to reach an issue waived by a guilty plea (see People v. Thomas, 74 A.D.2d 317, 428 N.Y.S.2d 20, affd. 53 N.Y.2d 338, 441 N.Y.S.2d 650, 424 N.E.2d 537).

While the jurisdiction of a court of general jurisdiction is presumed, that of a court of limited jurisdiction, e.g., the Ulster County Court, must, whenever questioned, be specifically demonstrated. Where a defendant controverts geographical jurisdiction, the People must, at trial, prove by a fair preponderance of the evidence that the crime occurred within the county or that a statutory exception is available (People v. Moore, 46 N.Y.2d 1, 6, 412 N.Y.S.2d 795, 385 N.E.2d 535; People v. Goldswer, 39 N.Y.2d 656, 659-661, 385 N.Y.S.2d 274, 350 N.E.2d 604). Where a defendant challenges geographical jurisdiction before trial, the jurisdiction of the county seeking to prosecute must be established before the Grand Jury (Matter of Steingut v. Gold, 42 N.Y.2d 311, 316-317, 397 N.Y.S.2d 765, 366 N.E.2d 854), and such a challenge must fail if the Grand Jury minutes show some evidence from which jurisdiction could be inferred (see People v. Chaitin, 94 A.D.2d 705, 462 N.Y.S.2d 61). Here, however, we are faced with the issue of whether a guilty plea waives a geographical jurisdiction challenge. We hold that it does not.

Our jury trial system insures that the jury members are drawn from the community in which the crime was allegedly committed (see People v. Taylor, 39 N.Y.2d 649, 655-656, 385 N.Y.S.2d 270, 350 N.E.2d 600). Unless criminal conduct bears "a necessary nexus to the geographical jurisdiction of the court", a court cannot commence a criminal action (People v. Hickey, 40 N.Y.2d 761, 762, 390 N.Y.S.2d 42, 358 N.E.2d 868). Further, a criminal action that proceeds without geographical jurisdiction can be stopped by prohibition (Matter of Steingut v. Gold, supra, 42 N.Y.2d, p. 316, 397 N.Y.S.2d 765, 366 N.E.2d 854). This emphasis on "place" of trial is not only for the benefit of the...