People v. Zipkin

• Decision Date: 28 January 1985
• Citation: 107 A.D.2d 837,484 N.Y.S.2d 676
• Parties: The PEOPLE, etc., Respondent, v. Philip ZIPKIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 676

484 N.Y.S.2d 676

107 A.D.2d 837

The PEOPLE, etc., Respondent, v. Philip ZIPKIN, Appellant.

Supreme Court, Appellate Division, Second Department.

Jan. 28, 1985.

William E. Hellerstein, New York City (Robert S. Dean, New York City, of counsel), for appellant and appellant pro se.

John J. Santucci, Dist. Atty., Kew Gardens (Michael O'Brien, New York City, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, NIEHOFF and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered March 20, 1981, convicting him of criminal possession of a controlled substance in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

There is no merit to the contention raised by defendant in his pro se supplemental brief that New York lacks jurisdiction to prosecute him for the instant offense, as the heroin was discovered by Federal customs inspectors during a search of his person at Kennedy International Airport. Defendant has failed to sustain his burden of proving that the Federal government has exclusive jurisdiction over offenses committed or discovered in the customs area of that airport, as a result of clear and unambiguous Federal legislation asserting such jurisdiction or this State ceding the land and the jurisdiction over it to the United States government (see Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502; United States v. Holmes, 414 F.Supp. 831, 837-838; People v. Kobryn, 294 N.Y. 192, 61 N.E.2d 441; People v. Fisher, 97 A.D.2d 651, 652, 469 N.Y.S.2d 187; People v. Mitchell, 90 Misc.2d 463, 395 N.Y.S.2d 340). Therefore, the Federal and State governments had concurrent jurisdiction over the offense committed by defendant and when the Federal authorities declined to prosecute defendant, they properly turned him over to State authorities for prosecution (see People v. Fisher, supra; People v. Mitchell, supra; People v. Marcus, 90 Misc.2d 243, 245-246, 394 N.Y.S.2d 530; People v. Sheppard, 105 Misc.2d 495, 432 N.Y.S.2d 467).

We have examined the other contentions raised on this appeal and find them either to be without merit or not preserved for appellate review.