People v. Lowen

• Decision Date: 05 March 1984
• Citation: 100 A.D.2d 518,473 N.Y.S.2d 22
• Parties: The PEOPLE, etc., Respondent, v. Joseph LOWEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 22

473 N.Y.S.2d 22

100 A.D.2d 518

The PEOPLE, etc., Respondent, v. Joseph LOWEN, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 5, 1984.

Donald H. Zuckerman, Pound Ridge, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Terry J. Ruderman, Scarsdale, and Gerald D. Reilly, White Plains, of counsel), for respondent.

Before TITONE, J.P., and GIBBONS, O'CONNOR and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Westchester County, rendered October 2, 1981, convicting him of criminal possession of a controlled substance in the second degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

On January 6, 1981, two officers assigned to the Special Investigations Unit of the Mount Vernon Police Department received information that two individuals had been observed selling narcotics from their automobile on South Third Avenue near the Mount Vernon-Bronx border. Acting upon that information, the officers undertook surveillance from a vantage point "within the city limits" of Mount Vernon and observed an automobile matching the description supplied by the informant "travelling north on Provost Avenue to the [c]ity limits of Mount Vernon". The officers saw the driver park the car and, through the use of binoculars, one of them saw another vehicle stop, the driver exit, walk up to the automobile under surveillance and exchange currency for a small clear plastic bag containing a white substance which the officer with the binoculars believed, as a result of his experience, to be cocaine.

After the transaction was completed, the officers trailed the suspect vehicle, which was constantly in view, until they were able to pull it over. A bag, which was later determined to contain cocaine, was found on the console and was seized. Defendant and his passenger were arrested. (It appears that the codefendant jumped bail prior to trial.)

On this appeal, defendant's primary challenge is directed to the sufficiency of the indictment and the proof concerning the location at which the criminal activity occurred. More specifically, he claims that the indictment charged that the crime occurred "in the City of Mount Vernon, County of Westchester" while the proof adduced at trial indicated that the possession may have occurred south of the city line in Bronx County. We find no reversible error.

First, we would note that the issue was waived by the failure to raise the point by pretrial motion (CPL 255.10, subd. 1[a]; 255.20; People v. Iannone, 45 N.Y.2d 589, 600-601, 412 N.Y.S.2d 110, 384 N.E.2d 656; People v. Soto, 44 N.Y.2d 683, 684, 405 N.Y.S.2d 434, 376 N.E.2d 907; cf. People v. Selby, 53 A.D.2d 878, 385 N.Y.S.2d 335, affd. 43 N.Y.2d 791, 402 N.Y.S.2d 392, 373 N.E.2d 286). Inasmuch as the codefendant made such a pretrial motion, which was not joined in by the defendant and is thus unavailable as a procedural vehicle for appellate review (People v. Cona, 49 N.Y.2d 26, 34, 424 N.Y.S.2d 146, 399 N.E.2d 1167; People v. Teeter, 47 N.Y.2d 1002, 1003, 420 N.Y.S.2d 217, 394 N.E.2d 286), the motion made at the close of all the evidence was not timely as there was no good cause shown for the delay (People v. Key, 45 N.Y.2d 111, 116, 408 N.Y.S.2d 16, 379 N.E.2d 1147). In addition, the motion was neither in writing nor on reasonable notice to the People as required by statute (CPL 210.45, subd. 1; see People v. Key, supra, p. 116, 408 N.Y.S.2d 16, 379 N.E.2d 1147).

Moreover, there is no question that the defect, if any, was waivable. "In essence, an indictment is jurisdictionally defective only if it does not charge the defendant with the commission of a particular crime" (People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656, supra ). The indictment in this case clearly fulfilled the statutory and constitutional requirements of due process and fair notice (People v. Spann, 56 N.Y.2d 469, 473, 452 N.Y.S.2d 869, 438 N.E.2d 402; People v. Cohen, 52 N.Y.2d 584, 439 N.Y.S.2d 321, 421 N.E.2d 813). Notably absent from defendant's brief is any claim of prejudice. Indeed, since the offense was committed within 500 yards of the boundary, either Bronx County or Westchester County had geographical jurisdiction to prosecute (CPL 20.40, subd. 4, par. [c]; see Pitler, N.Y.Crim.Prac. Under the CPL, § 6.20, p. 299).

Venue is a question of fact for the jury to determine but it need only be established by a preponderance of the evidence (People v. Moore, 46 N.Y.2d 1, 6, 412 N.Y.S.2d 795, 385 N.E.2d 535; People v. Hetenyi, 304 N.Y. 80, 83-84, 106 N.E.2d 20). The testimony of one of the officers that the transaction occurred within the city limits of Mount Vernon is sufficient to support the jury's determination (People v Cullen, 50 N.Y.2d 168, 173, 428 N.Y.S.2d 456, 405 N.E.2d 1021; cf. People v. Dordal, 55 N.Y.2d 954, 956, 449 N.Y.S.2d 179, 434 N.E.2d 248). There was no need for the People to substantiate that testimony by, as the defendant puts it, the use of "maps or other documentation".

Defendant also complains that error was committed when the court, in conducting a pretrial hearing...