Saturday, February 2, 2013

Location, Location, Location

As with real estate, the location of the arrest or alleged criminal offense can be determinative as to the disposition of the case. Thus, as demonstrated by the cases discussed below, it is critical that counsel be aware of such location and the potential impact that might have on the charges.

For instance, instance in  People v. Cornell (17 AD3d 1010 [4th Dept 2005]), the defendant appealed from a judgment of Ontario County Court convicting him after a jury trial of two counts of rape in the first degree (Penal Law § 130.35[1] ). The rapes occurred on different dates and with different victims. Both rapes occurred in a motor vehicle that traveled from Ontario County to Monroe County. One rape occurred in Ontario County, and from the testimony it appears that the second rape occurred in Monroe County. A defendant in New York has a right to be tried in the county where the alleged crime was committed unless the legislature has provided otherwise. People v. Ribowsky, 77 N.Y.2d 284, 291, 567 N.Y.S.2d 392, 568 N.E.2d 1197 (1991). The prosecution has the burden of establishing venue by a preponderance of the evidence, see Greenberg, 89 N.Y.2d at 555–56, 656 N.Y.S.2d 192, 678 N.E.2d 878, and must “in good faith, elicit all facts tending to show the exact location where the crime was committed.” People v. Cullen, 50 N.Y.2d 168, 174, 428 N.Y.S.2d 456, 405 N.E.2d 1021 (1980). Yet, the lack of venue in Ontario County as to the Monroe County rape was not raised by defense counsel On direct appeal, the Appellate Division, Fourth Department held that by failing to move to dismiss the count of rape that occurred in Monroe County on the ground of improper venue or to request a jury charge on venue, defendant failed to preserve  and waived the issue. The Court also rejected the claim that counsel was ineffective for not raising this improper venue issue. The New York Court of Appeals denied leave to appeal, so Mr. Cornell brought a federal habeas petition based on the ineffective assistance of counsel claim. Although the District Court rejected the petition, in Cornell v Kirpatrick (66r F3d 369 [2d Cir 2011]), the Court of Appeals for the Second Circuit reversed that holding and granted the petition upon a finding that counsel's failure to object to improper venue was objectively unreasonable performance which prejudiced Mr. Cornell.

The location of the arrest can also be a basis for challenging the charges. In People v McGrew (2013 NY Slip Op 00637 [4th Dept 2/1/13]), the Appellate Division, Fourth Department, reversed a conviction for criminal possession of a weapon and dismissed the indictment where the defendant was arrested by City of Syracuse police in the Town of Dewitt, more than 100 yards from the boundary line of the City of Syracuse. As the Court explained

Pursuant to CPL 140.50 (1), "a police officer may [under certain circumstances] stop a person in a public place located within the geographical area of such officer's employment" (emphasis added), the relevant "geographical area" in this case being the City of Syracuse (CPL 1.20 [34-a] [b]). We thus conclude that, under these circumstances, the detective lacked statutory authorization to stop and question defendant in the Town of DeWitt (see People v Howard, 115 AD2d 321, 321; Brewster v City of New York, 111 AD2d 892, 893). Moreover, on these facts, the detective's violation of CPL 140.50 (1) requires suppression of the evidence derived therefrom, i.e., the gun and the marihuana seized from the car (see People v Greene, 9 NY3d 277, 280-281). We thus grant that part of defendant's omnibus motion seeking suppression of that physical evidence, dismiss the indictment, and remit the matter to County Court for further proceedings pursuant to CPL 470.45.

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