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A bicoastal drug dealer who operated out of San Francisco but had tentacles in New York can be held criminally liable under New York’s “Rockefeller drug laws” even though neither he nor his drugs were in New York at the time of the offense, a divided New York Court of Appeals has ruled in a case of first impression. People v. Alvaro Carvajal, No. 154. New York’s high court used a combination of constructive possession of drugs and constructive presence in New York to uphold Alvaro Carvajal’s conviction and 35 years-to-life sentence under the since-revised Rockefeller drug laws. The decision affirms an opinion written last December by Justice David B. Saxe for the intermediate Appellate Division. Writing for the high court majority, Chief Judge Judith S. Kaye said that Carvajal’s conspiracy with New York contacts to transport drugs into the state coupled with the fact that he was at some points physically in New York, plus the fact that the drugs in question were earmarked for New York, bring the matter within the scope of the Manhattan district attorney. The case centers on a Colombian cocaine enterprise that, officials say, had distributed 10,000 pounds of cocaine in the early 1990s. Intercepted telephone calls to and from a Queens, N.Y., garage, out of which the East Coast drug business operated, revealed that Carvajal ran the West Coast operation. A multistate probe ensued, and in May 1994, California authorities raided a stash house and seized two vehicles containing large quantities of cocaine. Carvajal was arrested in California for extradition to New York. A New York grand jury indicted Carvajal on conspiracy and possession charges. Carvajal conceded that the conspiracy count fell within New York’s territorial jurisdiction under New York’s Criminal Procedure Law � 20.20, but challenged New York’s authority to prosecute him for possession, a felony that would subject him to the full brunt of the Rockefeller drug laws, which mandate long prison terms. The Appellate Division upheld Carvajal’s conviction and sentence, holding that a defendant can constructively possess drugs in another jurisdiction if he or she exercises control over the narcotics. It also found that the bicoastal telephone calls are deemed, under Section 20.60, to have taken place in both locations. Therefore, Saxe reasoned, constructive presence in New York can lay the foundation for constructive possession of the drugs. New York’s high court said that the issue was whether there was enough evidence of Carvajal’s conduct in New York to establish conspiracy to commit the New York crime of first-degree criminal possession of a controlled substance. Kaye noted that Carvajal was in New York City meeting with his agents for four days in spring 1994, made telephone calls to his California subordinates during his visit, provided detailed instructions to those employees on preparing cocaine for shipment to New York, and conspired to ensure delivery of the drugs in New York. “[D]efendant conspired in New York with his New York cohorts to bring cocaine to New York, thus affording a basis for the assertion of jurisdiction under our statutory scheme to prosecute him . . . here,” Kaye wrote. Judge George Bundy Smith strongly dissented, arguing that neither the federal nor state constitution permits conviction of a drug possession charge when both the defendant and the narcotic are in a different jurisdiction. The result “sets a dangerous precedent because it will allow a trial court to try a defendant for a completed crime where only an attempted crime or no crime has been committed . . . .As a result of the lack of obvious jurisdiction, New York has encroached upon California’s jurisdiction. No previous case has held . . . that a criminal court can exercise jurisdiction over a crime that never actually occurred in New York.”

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