Opinion
01-02-2015
The PEOPLE of the State of New York, Respondent, v. Edward HARVEY, Defendant–Appellant.
Linda M. Campbell, Syracuse, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
Linda M. Campbell, Syracuse, for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, and SCONIERS, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon a guilty plea of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ). We agree with defendant that the plea colloquy conducted by County Court is factually insufficient to establish territorial jurisdiction. “Because the State only has power to enact and enforce criminal laws within its territorial borders, there can be no criminal offense unless it has territorial jurisdiction” (People v. McLaughlin, 80 N.Y.2d 466, 471, 591 N.Y.S.2d 966, 606 N.E.2d 1357 ). Contrary to the People's contention, the issue of territorial jurisdiction raised by defendant survives his waiver of the right to appeal (see People v. Montane, 110 A.D.3d 1101, 1101–1102, 974 N.Y.S.2d 257, lv. denied 22 N.Y.3d 1089, 981 N.Y.S.2d 675, 4 N.E.3d 977 ), does not require preservation (see People v. Holmes, 101 A.D.3d 1632, 1633, 956 N.Y.S.2d 365, lv. denied 21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140 ; see generally People v. Hanley, 20 N.Y.3d 601, 604–605, 964 N.Y.S.2d 491, 987 N.E.2d 268 ; People v. Correa, 15 N.Y.3d 213, 222, 907 N.Y.S.2d 106, 933 N.E.2d 705 ), and is not waived by his guilty plea (see Montane, 110 A.D.3d at 1102, 974 N.Y.S.2d 257 ; People v. Casias, 303 A.D.2d 294, 294, 755 N.Y.S.2d 841, lv. denied 100 N.Y.2d 579, 764 N.Y.S.2d 389, 796 N.E.2d 481 ; see generally People v. Carvajal, 6 N.Y.3d 305, 312, 812 N.Y.S.2d 395, 845 N.E.2d 1225 ; McLaughlin, 80 N.Y.2d at 471, 591 N.Y.S.2d 966, 606 N.E.2d 1357 ).
As a general rule, “for the State to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the State” (McLaughlin, 80 N.Y.2d at 471, 591 N.Y.S.2d 966, 606 N.E.2d 1357 ). Here, although the indictment alleged conduct by defendant that occurred in the State of Ohio and the City of Syracuse, during his plea colloquy defendant admitted to possessing a weapon in Ohio only; there was no mention during the plea colloquy of possession of a weapon in Syracuse. We conclude that this case is analogous to cases in which the plea colloquy negates an element of the crime to which defendant is pleading guilty, and, thus, we further conclude that, “where[, as here,] the defendant's recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the [State's power to prosecute the case], ... the trial court has a duty to inquire further to ensure that [the State has territorial jurisdiction]” (People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see generally Carvajal, 6 N.Y.3d at 312, 812 N.Y.S.2d 395, 845 N.E.2d 1225 ). Because the court failed to do so, we reverse the judgment of conviction, vacate the plea and remit the matter to County Court for further proceedings on the indictment.
In light of our determination, we need not review defendant's remaining contention.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, and the matter is remitted to Onondaga County Court for further proceedings on the indictment.