People v. Kassebaum

In People v. Kassebaum (95 N.Y.2d 611, 744 N.E.2d 694, 721 N.Y.S.2d 866 (2001), defendant, whose role was to test the purity of the heroin sought to be brought to New York, met with the leader of the conspiracy in Brooklyn, New York. Subsequently, defendant was arrested in Massachusetts and convicted in New York for conspiracy in the second degree and attempted criminal possession of a controlled substance in the first degree based upon the conduct of an accomplice (the leader of the conspiracy) in New York in collecting money for the sale of drugs, making travel arrangements for defendant and directing the activities of defendant in Massachusetts. The Court noted in Kassebaum that the "issue under CPL 20.20 (1) (a) is whether the People established that defendant and his accomplices engaged in conduct within New York sufficient to establish an element of attempted criminal possession of a controlled substance as required by the statute?" The Court stated: "Defendant's reliance on Cullen People v. Cullen, 50 N.Y.2d 168, 405 N.E.2d 1021, 428 N.Y.S.2d 456 (1980) is misplaced because none of the individuals held criminally accountable in Cullen were present in the prosecuting jurisdiction when the offense was consummated. In addition, Cullen stands for the proposition that a defendant does not manifest the knowledge element necessary for criminal possession of a controlled substance until he or she takes possession of the narcotic. This holding does not necessarily apply to an attempt offense which requires proof of a different mens rea--the intent to accomplish a criminal objective. Here, proof was offered that defendants engaged in substantial conduct in New York that manifested an intent to obtain heroin and return with it to New York. Standing alone, this conduct did not rise to a level sufficient to support criminal prosecution for attempted possession of a controlled substance because defendants' conduct did not constitute an attempt until the meeting in the Boston hotel room when defendants' conduct came 'dangerously near' criminal possession of heroin (see, People v. Acosta, supra, 80 N.Y.2d 665). Nonetheless, the conduct committed in New York evidenced defendant's intent sufficiently to establish the jurisdictional predicate underlying the prosecution under the CPL 20.20 (1) (a) element requirement." (Id. at 620-621, 744 N.E.2d 694, 721 N.Y.S.2d 866) Thus, Kassebaum permitted the prosecution and conviction in this state of an attempt to commit the crime of criminal possession of a controlled substance, not the completed crime of criminal possession.