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New York correctly prosecuted a man for criminal possession of a controlled substance even though both he and the drugs were in California at the time of the arrest, New York’s Appellate Division, 1st Department has ruled. Stating that the case was one of first impression, the panel found Criminal Procedure Law 20.20 to be controlling. That law states that a “person may be convicted in the criminal courts of this state of an offense [when] conduct occurred within this state sufficient to establish an element of such offense.” The elements of criminal possession consist of “merely the knowing and unlawful possession of four or more ounces of a narcotic drug,” wrote Justice David B. Saxe for the unanimous, five-judge panel in People v. Carvajal, 4350. “Such possession may be physical, or it may be constructive,” he said. Here, “there was ample evidence that regardless of where he was situated, defendant at all times exercised continued dominion and control over the drugs that were ultimately seized and the locations where the subject drugs were discovered, as well as over the employees who were found in possession of the drugs.” Alvaro Carvajal’s 1994 arrest capped a two-year sting involving one of the nation’s largest drug networks, a unit of the Cali Cartel that distributed up to 10,000 pounds of cocaine per month. The investigation uncovered a complex operation that transported cocaine from San Francisco to New York via a fleet of cars with hidden compartments. The probe began with a Queens, N.Y., garage called W & G Auto repair, and ultimately discovered coordinated drug operations in Queens, Chicago, San Francisco and other cities. In late September 1994, police arrested 191 members of the network, including the co-head of the ring’s New York operations, Freddy Lasso, and the defendant, Alvaro Carvajal. Carvajal served as the group’s “partner on the west coast,” according to the decision. A New York jury convicted Carvajal of conspiracy and three counts of criminal possession of a controlled substance. Justice Bonnie J. Wittner sentenced him to 35 years to life. Alleging that the state lacked jurisdiction, Carvajal appealed. “Territorial jurisdiction ‘goes to the very essence of the state’s power to prosecute’ and therefore may never be waived and must be proved beyond a reasonable doubt,” wrote Justice Saxe in his decision, citing Nielsen v. Oregon, 212 U.S. 315. CPL 20.20 controlled the issue, the judge added. It states that jurisdiction exists when, among other things, an element of an offense or an attempt to commit an offense occurs within New York. The defendant conceded that, under this law, New York had jurisdiction to prosecute him for conspiracy. However, he contended that none of the elements of the possessions charges occurred within New York. The judges could find no controlling precedent. “We are aware of no other case in which a defendant was convicted of possession of a controlled substance when neither the drugs at issue nor the defendant was in New York at the time of the offense,” wrote Saxe. “However … the evidence amply supports the People’s claim that an element of the crime occurred in this State.” Specifically, Saxe concluded, the defendant exercised control over drugs located within the state, as evidenced, for example, by phone calls he made to local operatives. The calls illustrated “a substantial degree of control over where and how the drugs that were ultimately seized would be located and transported,” according to Saxe. “For example, intercepted telephone conversations in which defendant participated shortly after the raid on the ‘stash house’ established that he was ultimately in charge of that location.” The court also reasoned that, under CPL 20.60[1], defendant could be deemed to have been physically in New York. Pursuant to that section, a phone call by a person outside of New York to another within its borders is deemed to have been made in both jurisdictions, Saxe wrote in the 16-page decision. Carvajal’s attorney, Paul Angioletti, a solo practitioner on Staten Island in New York, said he was disappointed by the ruling. “I thought we had some good issues,” he said. “At least we’re glad they felt they had to write about it at length. We’re going to continue to fight the decision.” Angioletti added that his co-counsel for the case, Lynne Stewart, whose trial is under way for aiding terrorism in her representation of imprisoned Shiek Omar Abdel Rahman, was no longer actively involved. “Right now she’s sort of got her hands full,” he said. The 1st Department panel also included Justices Eugene Nardelli, Joseph P. Sullivan, Betty Weinberg Ellerin and John W. Sweeny Jr. Assistant Manhattan District Attorneys Patricia Curran and Mark Dwyer argued for the prosecution.

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