Summary
In Matter of Machado v Donalty (107 A.D.2d 1079), the court indicated that the fact that defendant made a call from outside New York State was not a bar to his prosecution upon charges based on his telephone conversation from outside the State.
Summary of this case from Anthony T. v. Anthony JOpinion
January 29, 1985
Present — Dillon, P.J., Hancock, Jr., Callahan, Denman and Green, JJ.
Application unanimously denied and petition dismissed, without costs. Memorandum: Petitioner commenced this proceeding in the nature of prohibition pursuant to CPLR article 78 (CPLR 7804, subd [b]; 506, subd [b], par 1) to restrain respondents from proceeding with a criminal prosecution. The indictment charges criminal sale of a controlled substance in the first degree (Penal Law, § 220.43, subd 1), criminal possession of controlled substance in the second degree (Penal Law, § 220.18, subd 1) and criminal possession of a controlled substance in the third degree (Penal Law, § 220.16, subd 1). The charges are based upon a telephone conversation between petitioner, who was in the State of Maine at the time, and a person in Utica, New York, concerning the sale of four ounces of cocaine. Petitioner claims he is entitled to the extraordinary remedy of prohibition because respondents are without jurisdiction to prosecute him since he was never physically present in New York State. We disagree.
Although prohibition is a proper remedy to challenge the geographical jurisdiction of a criminal court prior to trial (see Matter of Hogan v. Culkin, 18 N.Y.2d 330, 336; Matter of Murtagh v. Liebowitz, 303 N.Y. 311, 319), it is appropriate only when a petitioner has established that he has no adequate remedy at law and has a clear right to relief (see Matter of Morgenthau v Erlbaum, 59 N.Y.2d 143, 147, cert den ___ US ___, 104 S Ct 486). Petitioner has an adequate remedy at law because he may move to dismiss the indictment on the ground that the Oneida County Court has no jurisdiction (see CPL 210.20, subd 1, par [h]; 210.25, subd 2; cf. Matter of Steingut v. Gold, 42 N.Y.2d 311, 314; Matter of Masin v. County Ct., 97 A.D.2d 643, mot for lv to app den 61 N.Y.2d 603). Moreover, petitioner has not demonstrated a clear right to relief. Geographical jurisdiction to prosecute is a question of fact (see People v. Tullo, 34 N.Y.2d 712, 714). Here, jurisdiction may fairly and reasonably be inferred from all the facts and circumstances (see People v. Hetenyi, 304 N.Y. 80, 84; CPL 20.60, subd 1). For these reasons, the petition is dismissed. (Article 78.)