People v. Mitchell

• Decision Date: 09 May 1977
• Citation: 90 Misc.2d 463,395 N.Y.S.2d 340
• Court: New York Supreme Court
• Parties: The PEOPLE of the State of New York v. Gary MITCHELL, Defendant.

Page 340

395 N.Y.S.2d 340

90 Misc.2d 463

The PEOPLE of the State of New York v. Gary MITCHELL, Defendant.

Supreme Court, Criminal Term, Queens County.

May 9, 1977.

Lyon & Erlbaum by William Erlbaum, for defendant.

John J. Santucci, Dist. Atty. by Joseph G. Scheideler, Asst. Dist. Atty., for plaintiff.

MEMORANDUM

ROSE L. RUBIN, Justice.

Significant questions relating to concurrent jurisdiction by state and federal authorities over contraband seized during customs procedures conducted at Kennedy International Airport are raised by defendant's pre-trial motions. Basically, defendant protests the jurisdictional validity of state prosecution where possession of contraband drugs is revealed in a border search upon entry into the United States from a foreign jurisdiction. He contends that the customs inspection point, operated exclusively by the federal government, imposes a physical, legal and symbolic barrier preventing entry into the State of New York. Thus, the federal government exercises exclusive jurisdiction, having preempted the field of customs regulations.

The facts are uncontroverted. In accordance with plans made by him, defendant was travelling by commercial airline from Morocco to Lisbon, Portugal, to New York City, to Houston, Texas. The transatlantic portion of the trip terminated at Kennedy International Airport on August 8, 1976, where defendant was required to deplane with his luggage for the purpose of clearing customs and of continuing on a connecting flight to his ultimate destination. A brief period of time was scheduled for the stopover. During the course of their inspection, customs officials discovered the contraband which is the subject of this indictment, approximately 22 pounds of marijuana, in defendant's suitcase. Defendant himself presented the suitcase for inspection. He does not deny ownership.

Normally, where an individual or his baggage enters the United States from a foreign country, both he and his baggage are subject to an inspection by customs agents (19 U.S.Code, sections 482, 1581). Such inspection, often called a "border search", may be triggered by mere suspicion (United States v. Mastberg, 9 Cir., 503 F.2d 465; People v. Dworkin, 30 N.Y.2d 706, 332 N.Y.S.2d 645, 283 N.E.2d 620). The propriety of the customs search is not here in question. It is defendant's contention that the prosecution of the crime which he committed, if any, should be prosecuted by federal authorities, and, therefore, that the courts of the State of New York have no authority to prosecute him. Defendant is in error.

The right of a state and the United States government to prosecute a defendant for a single crime committed within the boundaries of that state which violates both the laws of the state and the United States is well established in our law. (United States v. Marigold, 9 How. 560, 50 U.S. 560, 13 L.Ed. 257; Fox v. Ohio, 5 How. 410, 46 U.S. 410, 12 L.Ed. 213; People v. Welch, 141 N.Y. 266, 36 N.E. 328.) The exceptions, which are also long established, are the pre-emption of the State's power by either constitutional provision or by clear and unambiguous federal legislation, reserving that subject area or land area to federal control exclusively. (Adams v. U. S., 319 U.S., 312, 63 S.Ct. 1122, 87 L.Ed. 1421; United States v. Marigold, supra ; Fox v. Ohio, supra; People v. Welch, supra.) Absent the clear intent of the federal government to exercise sole jurisdiction over a particular field, such jurisdiction over a land area within a state, can only occur where the state cedes the land and jurisdiction over it to the United States government. (Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; Fort Leavenworth Railroad Company v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264; People v. Vendome Services, Inc., 173 Misc. 825, 19 N.Y.S.2d 195, affd. 284 N.Y. 742, 31 N.E.2d 508, rearg. den. 285 N.Y. 611, 33 N.E.2d 544; People v. Kobryn, 294 N.Y. 192, 61 N.E.2d 441; State Law, § 52, General Municipal Law, §§ 210-212.)

The principle is aptly illustrated in People v. Kobryn, supra. There, the Court of Appeals held that New York had not yielded its sovereignty over the site of the United States post office in the City of Rochester. It concluded that the state, therefore, retained the authority to try and to punish a person who illegally possessed a dangerous weapon within the post office in violation of New York law.

Neither the United States Congress nor the United States Constitution has pre-empted the State of New York from enforcing its laws against the sale or possession of a controlled substance. They are entirely compatible with the federal laws regulating customs procedures. The defendant, even though he has raised the issue of jurisdictional impediment, does not claim, let alone offer to prove, that Kennedy International Airport and jurisdiction over it, was ceded to the United States Government by the State or City of New York.

Here the same act constitutes an offense equally against the laws of the United States and against the laws of New York and subjects defendant to trial under the laws of either government (Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419; United States v. Marigold, supra ; Fox v. Ohio, supra; People v. Welch, supra.)

The contention that defendant was "forced" to clear customs is untenable. The arrangements for his flight were made with his knowledge and consent. People v. Newton, 72 Misc.2d 646, 340 N.Y.S.2d 77, which defendant relies upon, is readily distinguishable.

The defendant contends also that New York had such fleeting contact with him as to...