People v. Pilgrim , 415 N.Y.S.2d 876 ( 1979 )

OPINION OF THE COURT

O’Connor, J. P.

This is an appeal by the defendant from a judgment of the County Court, Nassau County, convicting him of one count each of criminal sale of a controlled substance in the first and second degrees and four counts of criminal sale of a controlled substance in the third degree, upon a jury verdict. The judgment should be affirmed.

By counts one and four of a Nassau County indictment, the defendant was charged with the unlawful "sale” of a controlled substance in the first and second degrees, respectively, in Nassau County. Although the negotiations which led to the exchange of drugs and cash took place in Nassau County, the actual transfer took place in New York County. The defendant has challenged his convictions under counts one and four of the indictment on the ground that Nassau County lacked the geographical jurisdiction to prosecute the crimes. He reasons that since the transactions took place in New York County, such county alone was the proper venue. Defendant is incorrect.

CPL 20.40 (subd 1, par [a]) endows a county with geographic jurisdiction to prosecute an accused where, inter alia, an element of the crime charged was committed within such county. A person commits the crimes of criminal sale of a controlled substance in the first and second degrees when he "knowingly and unlawfully sells” various compounds and/or quantities of controlled substances (Penal Law, §§ 220.41, 220.43). The statutory definition of the word "sell” includes, in addition to the commonplace meaning of the word, the mere offer or agreement to sell (Penal Law, § 220.00, subd 1; see People v Jones, 63 AD2d 582, 583).

I do not concur in the conclusion of my learned brother Mr. Justice Shapiro who, in discussing subdivision 1 of section 220.00 of the Penal Law, states in his dissent that "this case was not tried on that theory and was submitted to the jury solely on the theory of a completed sale in New York County.” As a matter of fact, the trial court in its instructions to the jury carefully explained the charges against the defendant and read to the jurors the definition of the word "sell”, specifically pointing out that under the terms of subdivision 1 of section 220.00 an offer to sell may constitute a sale. The People’s case, as presented, established that two agreements to sell had been made in Nassau County and that the actual transfer of the money and drugs took place in New York County. Under the court’s charge, the jurors could properly find that the defendant had committed the crimes charged in that he did in fact "sell” controlled substances in Nassau County. Although, as noted, the actual transfers did occur in New York County, that fact does not serve to alter the theory upon which the case was tried, which may be clearly inferred from the People’s proof and the definition of the crime as set forth in the appropriate section. The situs of the actual transfers in New York County does not deprive Nassau County of its properly found geographical jurisdiction. The additional proof of the actual transfers in New York County subsequent to the commission of the crimes charged and pursuant to the agreements reached in Nassau County, merely served to firmly establish the defendant’s intent and ability to act on his word and carry out the agreement and was, therefore, properly and necessarily placed before the jurors (cf. People v King, 61 AD2d 1035).

The other contentions raised on appeal by defendant have been considered and have been determined to be without merit.