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Court Discusses Issues Involving Undercover Narcotic Sales

A New York Criminal Lawyer said that, in May of this year, members of the Brooklyn Tactical Narcotics Teams arrested the defendants for street level narcotics sales to undercover police officers. In each case, both the arrest and the overt conduct constituting the crimes charged [PL §§ 220.39(1) and 220.16(1) ] occurred entirely within Kings County. “Pursuant to an agreement between the District Attorney of Kings County and the Special Narcotics Prosecutor for the City of New York”, these criminal actions were commenced by the filing of felony complaints in New York County Criminal Court. The People did not obtain transfer orders from the supreme court pursuant to Judiciary Law § 177-b(2).

A New York Criminal Lawyer said that, all three defendants were arraigned in New York County, and their cases adjourned to Part N, New York County, for action by the special narcotics grand jury and/or possible disposition by way of waiver of indictment and the filing of a superior court information. When each defendant initially appeared in Part N the People had no grand jury action to report. Counsel orally moved before this court for dismissal of the felony complaints on the ground that the court lacked geographical jurisdiction as defined in CPL § 20.40. With the concurrence of all the parties, the court reserved decision and set a schedule for the filing of written motions and memoranda of law.

The issue is whether article 5-B of the Judiciary Law, which established special narcotics parts of the Supreme Court, or any other provision of law, confers jurisdiction on this court over felony complaints alleging overt criminal conduct wholly occurring in another county.

A Queens Criminal Lawyer said that while the court was awaiting the People’s response, the prosecutor, unbeknownst to the court, presented both the defendant matters to a special narcotics grand jury. A true bill was voted with respect to each, and indictments filed. These indictments are currently pending in other special narcotics Supreme Court parts. Defendant has actually entered a guilty plea to a lesser included offense. On September 12, 1990 the People moved to dismiss the charges against Page because the laboratory report showed that the items sold contained no controlled substance. This motion was granted by the court.

A Long Island Criminal Lawyer said that although this court’s decision on the defense motions to dismiss the felony complaints appears moot, the parties have not so argued. Even if they had, a decision on the merits is warranted because the issue presented here satisfies all three of the criteria for an exception to the doctrine of mootness set forth in the 1980 case.

First, there is a likelihood of repetition. Indeed, the People concede that there is an “agreement” between the Special Narcotics Prosecutor and the Kings County District Attorney to regularly have some of those defendants arrested in Brooklyn for narcotics related offenses “booked” in Manhattan Central Booking, and arraigned on felony complaints in New York County Criminal Court. Second, the problem is one which would typically evade review because felony complaints by definition are ephemeral. A felony complaint “serves to commence a criminal action but not as a basis for prosecution thereof”, and therefore is not the accusatory instrument normally reviewed by the appellate courts. Finally, this issue is significant and presents important questions not previously passed on.

Contrary to the People’s allegations, all felony complaints charging a Penal Law article 220 offense which are filed and arraigned in New York County Criminal Court are not sent to Part N. Rather, only those cases which are being prosecuted by the Office of the Special Narcotics Prosecutor appear on the Part N Criminal Court calendar. Prosecutions brought by the New York County District Attorney’s office proceed through other parts.

CPL § 20.40 is the statute which specifically concerns the geographical jurisdiction of counties over offenses. As the practice commentary points out, CPL § 20.40 has been “given a restrictive interpretation and operation.” However, the People do not argue, and the Court has not considered, whether any of the CPL § 20.40 exceptions apply to the cases at bar. Any reliance on CPL 20.40 here, would, as practice commentary suggests, be misplaced. He wrote, “for a legislative variation on this subject.

Given the unique organization of Part N explained above, the court in determining the parameters of its geographical jurisdiction must consider to what extent Judiciary Law article 5-B and the New York City Criminal Court Act constitute a statutory exception to the traditional rule. The court must first decide whether Judiciary Law article 5-B, in establishing special narcotics parts of Supreme Court, also conferred jurisdiction on New York County Supreme Court, Part N over felony complaints charging out-of-county conduct. If not, the court must then consider whether a superior court judge sitting as a local criminal court judge has jurisdiction over such complaints pursuant to the New York City Criminal Court Act.

Article 5-B of the Judiciary Law only refers to “narcotics indictments,” which it defines as “an indictment charging a crime that is prosecutable in any county wholly contained in a city having a population of one million or more involving the sale or possession of a narcotic drug and any other offense properly joined therewith”. The statute recognizes that it constitutes an aberration from the traditional concept of geographical jurisdiction when it states that “notwithstanding any other provision of law, upon or after arraignment on a narcotics indictment filed in the supreme court in any county within such cities and before entry of a plea of guilty or commencement of trial, such supreme court may order that the indictment and action be assigned to a special narcotics part of the supreme court”. Article 5-B of the Judiciary Law clearly envisaged the transfer of cases among counties occurring post-filing of an indictment. The use by the Legislature of the permissive “may order” provides a mechanism for some judicial discretion to control the number, nature, and timing of cases transferred. If the procedure set forth in the statute is followed, there is no constitutional defect in the trial of out-of-county crimes. Here, the agreement between the Kings County District Attorney and the Special Narcotics Prosecutor is the basis for the transfer of large numbers of unindicted cases without order of the court and without consideration of the current availability of judicial resources.

Furthermore, the People do not allege that the “agreement” between the Kings County District Attorney and the Special Narcotics Prosecutor is consistent with, or pursuant to, the “plan” which is supposed to be adopted by the district attorneys of all the counties of New York City pursuant to Judiciary Law § 177-c. The court is unaware of any such “plan” being on file, nor has same been made available to the court. Thus, the court is unable to ascertain to what extent this “agreement” violates, or is in furtherance of, the “plan.” Indeed, the court is not even sanguine that the “plan” referred to in the Judiciary Law exists.

On its face, article 5-B of the Judiciary Law simply does not provide a statutory basis for the filing of felony complaints in New York County alleging narcotics offenses in Kings County. Nor does it add to or detract from the jurisdiction of New York County Criminal Court, Part N. Indeed, the People concede the statute is silent with respect to accusatory instruments other than narcotics indictments. Simply put, article 5-B of the Judiciary Law is not dispositive of defendant’s motions.

The People argue, and the court agrees, that the Legislature’s declaration that the drug “crisis transcends the traditional jurisdictional boundaries of the counties” in New York City should inform its interpretation of other relevant statutes. Such an approach was taken by the Court of Appeals in upholding an eavesdropping warrant issued by a New York County Justice for Queens County.

The judiciary article of the New York State Constitution was adopted November 7, 1961, effective September 1, 1962, to provide for a unified court system and to direct that “the legislature establish in and for the City of New York a single, city-wide court of criminal jurisdiction.” The Constitution also provides that the court “shall have jurisdiction over crimes and other violations of law, other than those prosecuted by indictment and over such other actions and proceedings, not within the exclusive jurisdiction of the Supreme Court, as may be provided by law”.

To effectuate these constitutional mandates, the Legislature enacted the New York City Criminal Court Act by Laws 1962, chapter 697. NYCCCA § 20 provides that the Criminal Court of the City of New York is a “single, city-wide court with such power and jurisdiction as are herein or elsewhere provided by law.” Pursuant to NYCCCA § 30 “each of the judges of the court”, when sitting as a magistrate, has “jurisdiction throughout the city, and may perform any and all of the duties of a magistrate in and for any one of the counties in the city.”

The thrust of the People’s argument is that these provisions of the NYCCCA, in light of the Legislature’s findings in article 5-B of the Judiciary Law, should be liberally construed. CPL § 100.55(2) provides that “any local Criminal court accusatory instrument may be filed with the New York City Criminal Court when an offense charged therein was allegedly committed in New York City.” A felony complaint constitutes such an accusatory instrument. When the CPL and NYCCCA provisions are broadly read together, the People argue, and the court agrees, that the law allows a felony complaint to be filed in New York County Criminal Court charging criminal conduct occurring elsewhere in New York City.

The issue at bar is not whether the court, as a local criminal court, has trial jurisdiction over these out-of-county felony offenses, but whether it has preliminary jurisdiction. See, CPL § 1.20(25). Because Part N is presided over by a “superior court judge sitting as a local criminal court” it has “preliminary jurisdiction” as provided in CPL § 10.30(2). See CPL § 10.30(3); CPL § 10.20(2). Proceedings on a felony complaint constitute proceedings within the definition of “preliminary jurisdiction” in CPL § 1.20(25).

In short, although not expressly stating so, the Constitution of this State and the NYCCCA, by creating one city-wide court of criminal jurisdiction, allow for felony complaints to be filed in any county of the City alleging overt criminal conduct wholly occurring in a different county of the City. Such a broad interpretation is also consistent with the legislative intent manifested in Judiciary Law article 5-B. Thus, the court has jurisdiction over the felony complaints at bar, and each defendant’s motion to dismiss the felony complaint against him is denied.

Finally, there is no impediment to a waiver of grand jury action and prosecution by superior court information on these out-of-county cases in Part N, Supreme Court. CPL § 200.15 specifically provides that a superior court information “has the same force and effect as an indictment and all procedures and provisions of law applicable to indictments are also applicable to superior court informations, except where otherwise expressly provided.” Therefore, article 5-B of the Judiciary Law applies to Superior Court informations, as well as indictments. Thus, Supreme Court, Part N, New York County as a designated special narcotics Supreme Court part, is an “appropriate superior court” for accepting pleas by way of superior court information, even in cases where all the conduct occurred wholly outside of the county.

Accordingly, the court concludes that it has jurisdiction and denies the defendants’ motions in their entirety.

If the court has no jurisdiction over your case, seek the legal advice of a New York Criminal Attorney and New York Assault Attorney at Stephen Bilkis and Associates.

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