New York Jurisdiction Challenge Over Drug Possession

In People v. Kassebaum (95 NY2d 611, 744 NE2d 694, 721 NYS2d 866 [2001], cert denied 532 US 1069, 121 S Ct 2224, 150 L Ed 2d 216 [2001]), the defendant Kassebaum conspired with others in New York to import heroin from Massachusetts. Unbeknownst to the conspirators, the "Lebanese drug courier" with whom they were negotiating was an undercover agent. Kassebaum and others traveled to Boston to take delivery, but detected surveillance and refused to accept the heroin. Kassebaum was arrested and charged in New York with conspiracy in the second degree and attempted criminal possession of a controlled substance in the first degree. He was convicted of both charges after trial. On appeal, Kassebaum challenged state jurisdiction over the possessory offense. The People responded in part that jurisdiction properly lay under CPL 20.20 (1) (a), which provides: "A person may be convicted in the criminal courts of this state of an offense defined by the laws of this state, committed either by his own conduct or by the conduct of another for which he is legally accountable pursuant to section 20.00 of the penal law, when: "1. Conduct occurred within this state sufficient to establish: "(a) An element of such offense ... ." The Court of Appeals noted that all the elements of attempted criminal possession of a controlled substance in the first degree were plainly made out by the proof, and that the issue was whether one or more of those elements were made out by conduct which occurred within New York. The Court concluded that there had been ample proof of in-state conduct manifesting the intent element required for the crime, i.e., the intent to possess over four ounces of heroin. In particular, the conspirators agreed in New York to leave and quickly return with heroin to sell in New York; they made travel arrangements in New York for a trip to Boston by three conspirators; and during the trip the chief conspirator continuously gave them directions from New York by telephone as to how to accomplish their goal. The "People's intent evidence was in the form of concrete actions of the participants toward accomplishing" the possession of heroin in New York. (Kassebaum, 95 NY2d at 619.)