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People v. Kassebaum

February 15, 2001


The opinion of the court was delivered by: Graffeo, J.

In this case, we address whether a New York criminal court exceeded the bounds of territorial jurisdiction conferred under Criminal Procedure Law 20.20. For the reasons that follow, we find that defendant was properly prosecuted in New York for attempted possession of a controlled substance in the first degree based on the significant conduct that occurred in this State for an attempt offense effectuated when defendant and his accomplices were offered heroin and tested samples of the narcotic in a neighboring State.

At trial, the People offered evidence that defendant was a member of a conspiracy to procure heroin for sale in New York and that defendant and his accomplices were guilty of attempted criminal possession of a controlled substance based on a series of events that commenced in New York and concluded with the arrest of defendant and two accomplices in Massachusetts. Although the jury found defendant guilty of both conspiracy in the second degree and attempted criminal possession of a controlled substance in the first degree, on appeal defendant challenges New York's exercise of territorial jurisdiction over the latter offense only.

Evidence was adduced that the leader of the conspiracy was Salvatore Lombardi, a resident of Brooklyn, and that other participants included Rita Bologna, Michael Booth, Joseph Viola and defendant. Through wiretap surveillance of the telephone line to Lombardi's residence in January 1992, law enforcement authorities discovered that Lombardi was raising $120,000 to pay a courier fee to obtain a large quantity of heroin. Lombardi's intercepted conversations cryptically identified the various players in the proposed heroin exchange, including defendant - a pharmacologist referred to as "the professor." The People theorized that defendant's role in the enterprise was to test the purity of the heroin.

On January 20, 1992, Lombardi and another individual discussed defendant's availability for a "contract" Lombardi wished to assign him and, upon receiving a telephone call advising that defendant had been located, Lombardi summoned defendant to his home. Thereafter, Bologna used Lombardi's telephone to make airline reservations for three men to fly at 8:00 P.M. that evening to Boston, all under the surname "Coppolecchia." Law enforcement authorities observed defendant, Booth and Viola board the flight and, at the request of New York investigators, Massachusetts state troopers followed the activities of the three men once they arrived in Boston. After registering at the airport's Hilton Hotel under aliases, they were seen entering and leaving each other's rooms during the next 24 hours.

Using wiretap surveillance, authorities learned that Lombardi telephoned a woman in Florida from his Brooklyn residence at 7:25 A.M. on January 21 and informed her that he was departing to perform a "fast * * * up and down job" in Boston but planned to return home before dinner. Bologna also placed a call from the Lombardi residence, indicating she was taking a day trip but could not divulge the reason for the excursion.

From his home in Brooklyn, Lombardi then telephoned Viola in Boston and inquired whether the men had made contact with the drug courier. When Viola stated the connection had not yet been accomplished, Lombardi asserted that he would "page" the individual himself and indicated he was bringing "the thing" to Boston that day, a reference which the People maintained was to the $120,000 courier fee.

Later that day, Lombardi arrived in Boston with Bologna and met with the men at the hotel, remaining a total of 15 to 20 minutes. Undercover officers saw Bologna in the lobby restaurant during this time interval. As he departed Booth's hotel room, Lombardi was overheard commenting that he expected to be home at about 9:00 P.M. that night.

At 9:30 P.M., Lombardi paged Special Agent Ganem, an undercover officer with the United States Drug Enforcement Agency, who was posing as the Lebanese drug courier with whom the group was negotiating the heroin exchange. Ganem returned Lombardi's call using the telephone number displayed on his pager, which was the number for a Brooklyn restaurant that Lombardi frequented. During this conversation, Lombardi directed Ganem to contact Viola at the Hilton to arrange the sale, indicating Viola was registered at the hotel under the name of "Frank Coppolecchia." Ganem did as he was instructed and, in the course of his conversation with Viola, agreed to call him in the morning to arrange the meeting. Viola also expressed a need to change hotels. Hence, at 10:40 A.M. the following morning, Viola, Booth and defendant checked out of the Hilton and registered as guests at a nearby Ramada Inn. Ganem and Viola scheduled the heroin exchange for 12:30 P.M. that day at the Ramada Inn.

New York law enforcement officers recorded a telephone conversation via the wiretap of Lombardi's Brooklyn residence at 11:18 A.M. on January 22 in which Viola advised Lombardi of the time and location of the meeting. Lombardi directed Viola to call him after the exchange and indicated that all he needed to say was: "I'm on my way home." Less than an hour later, wearing a transmitting device, Ganem met Viola in the lobby of the Ramada Inn and the two men proceeded to Viola's room. Telling Ganem to wait for him, Viola went to defendant's room, retrieved a green and red paper bag, and returned to Ganem to display the contents of the bag-$120,000 in cash. Ganem then retrieved the drugs from a vehicle in the parking lot, returning immediately to Viola's room where he exhibited several packages containing, in the aggregate, approximately 3.5 kilograms (more than seven pounds) of heroin. Viola declared his intent to return to New York that night with the heroin, hoping that he and Ganem could "do a lot of dealing" in the future. Indicating the drugs would be sold in New York City directly to narcotics users, Viola suggested he and his "friends" were in a position to buy as much heroin as Ganem's contacts could supply.

Viola removed small samples of the drugs from each package and left with the money and the samples, claiming he would return after the purity of the heroin had been tested. A few minutes later, Viola reappeared, visibly upset, announcing to Ganem that he had seen someone suspicious in the hotel stairwell. At trial, one of the plainclothes officers involved in the Boston surveillance effort testified that he accidentally encountered Viola in the stairwell.

After receiving assurances from Ganem that he had not been accompanied by anyone, Viola again left his hotel room and went to defendant's room, which was located on a different floor of the hotel. About twenty minutes later, Viola rejoined Ganem and terminated the deal on the basis that the heroin had been tested but was of insufficient purity. He referred to two tests that had been performed, an acid and a burn or "temperature" test, claiming the narcotic had failed both. Although the transaction was cancelled, Viola told Ganem he would call him later that evening from New York.

Soon thereafter, defendant, Booth and Viola checked out of the hotel and boarded a courtesy van destined for the airport. When they alighted at an airport terminal, they were arrested. Defendant was carrying $80,000 in cash; Booth and Viola had $20,000 each. In addition, Booth was found in possession of an electric burner, coffee pot, thermometer, copper wire and other materials that could be used to test the purity of heroin. Two containers of mineral oil of a type that could be used for heroin testing were found in the hotel room vacated by defendant.

Criminal proceedings were commenced against Lombardi, Bologna, Booth, Viola and defendant in New York Supreme Court. Each of his co-defendants pleaded guilty, but defendant proceeded to a jury trial. In addition to evidence of the events articulated above, the People admitted portions of Booth's plea allocution in which he acknowledged that, had the events gone as planned, the heroin was to be transported to New York City.

In response to defendant's pre-trial assertion that the prosecution was acting in excess of this State's territorial jurisdiction under CPL 20.20, the People relied on three provisions of the statute, CPL 20.20(1)(a), 20.20(2)(b) and 20.20(2)(c), to establish jurisdictional authority *fn1 Consistent with People v. McLaughlin (80 NY2d 466), these bases for jurisdiction were submitted to the jury, which was directed that defendant could be convicted only if the People established jurisdiction beyond a reasonable doubt. As evidenced by a verdict sheet which defendant challenges on appeal, the jury found defendant was properly prosecuted in New York under each of the People's theories, and convicted ...

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