People v. Sheppard

• Decision Date: 06 October 1980
• Parties: The PEOPLE of the State of New York v. Irving SHEPPARD, Defendant.
• Court: New York Supreme Court

Page 467

432 N.Y.S.2d 467

105 Misc.2d 495

The PEOPLE of the State of New York v. Irving SHEPPARD, Defendant.

Supreme Court, Criminal Term, Queens County, Part 24.

Oct. 6, 1980.

John J. Santucci, Dist. Atty., Queens County, Kew Gardens by Robert Winnemore, Elmhurst, of counsel, for the prosecution.

Bert H. Nisonoff, Forest Hills, for defendant.

MEMORANDUM

NAT H. HENTEL, Judge.

Defendant moves under CPL section 210.20(1)(h) for the dismissal of this and two other indictments (8140 and 8148/80) on the basis of an alleged jurisdictional defect.

Defense argues that this court does not have jurisdiction of the defendant because the arresting officers were working under a Drug Enforcement Administration joint Federal/State task force, which included Federal agents and New York State and City police officers. In fact, a New York City police member of the task force arrested defendant.

Defense reasons that the Drug Enforcement Agency may only bring its arrestees before the United States District Court having proper jurisdiction.

In this court's view, there is no jurisdictional impediment under CPL section 210.20(1)(h) to prosecute defendant in a State court for the offense charged.

Although the Drug Enforcement Administration is a Federal agency, concurrent jurisdiction with the State is intended under 21 U.S.C.A., section 903 (Ledcke v. State, 260 Ind. 351, 296 N.E.2d 412 (1973)). Regarding the application of State law, 21 U.S.C.A., section 903 reads as follows:

"No provision of this title shall be construed as indicating an intent on the part of Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this title and that State law so that the two cannot consistently stand together."

The Federal courts have exclusive jurisdiction of federal criminal prosecutions. However, the same act may constitute both a federal and state crime. In such a situation, the offender may be prosecuted by both sovereigns. (Bartkus v. State of Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. U. S., 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); U. S. v. Jackson, 470 F.2d 684 (C.A. 5th 1972).)

It was held in U. S. v. Jackson, supra, at p. 689, "an act denounced by both federal and state sovereignties is an offense against the peace...