Lead Opinion
OPINION OF THE COURT
The defendant was indicted and convicted in Kings County for rape and sexual abuse in the first degree. The offenses allegedly occurred in the defendant’s car while parked in Queens County near the Kings County border. The trial court held, as a matter of law, that Kings County
At the trial the complainant testified that she resided in Brooklyn and had been acquainted with the defendant for approximately three years prior to the incident. On May 12, 1974, she went with the defendant to a Brooklyn social club where he was employed. They went in the defendant’s car and, on the way, picked up the complainant’s girl friend who also resided in Brooklyn. At approximately 10 p.m. the women asked the defendant to take them home. The defendant first
A police officer testified that Highland Park is on the border between Kings and Queens County and that the parking lot is located in Queens County. He initially stated that the place where the incident occurred is approximately 100 yards from the county line but later testified that he had measured the distance in a police car and that it was less than three tenths of a mile from Brooklyn. The People also submitted a map of the area marking the place where the crime occurred. The defendant did not testify or call any witnesses on his behalf.
During the trial the defendant argued that the jurisdictional issue should be submitted to the jury as a question of fact. At that stage the court informed the jury pro tanto that the evidence was relevant because a crime committed within 500 yards of the county line could be prosecuted in either county
The following day the court stated to the parties that it wanted to make it clear that the defendant’s motion, with respect to the jurisdictional issue was denied and "that the court has ruled that the alleged crime was committed in the County of Kings.” The court, then explained that it did not
On this appeal the People do not rely on CPL 20.40 (subd 4, par [c]). They concede that the Appellate Division correctly held that a question of fact was presented as to whether the crimes were committed within 500 yards of the county line. The People urge, however, that Kings County acquired jurisdiction pursuant to CPL 20.40 (subd 4, par [g]) and that the trial court properly held that there was no question of fact for the jury to resolve since it is undisputed on this record that the crimes occurred in a private vehicle which had passed through Kings County to Highland Park in Queens County. The defendant argues that this statute has no application to cases where the crime alleged occurred at an ascertainable location. In the alternative he claims that it was still for the jury to decide,, as a question of fact, whether the crimes were committed in the defendant’s car during a trip through both counties as the complainant had testified.
At common law and under the State Constitution the defendant has the right to be tried in the county where the crime was committed unless the Legislature has provided otherwise (People v Goldswer,
When the defendant requests the court to instruct the jury to determine the factual predicate for the venue it has been held to be error to refuse the charge even though the People’s proof with respect to venue may be uncontradicted (People v Hetenyi, supra). It is fundamental that the defendant’s plea of not guilty puts the People to their proof on the indictment and is alone sufficient to raise factual issues for the jury to resolve with respect to the credibility and sufficiency of the People’s evidence (People v Walker,
In any event in this case even if the complainant’s testimony were credited, Kings County could not establish jurisdiction by relying solely on the private vehicle trip statute (CPL 20.40, subd 4, par [g]) in view of the complainant’s ability to otherwise identify the place where the crime was allegedly committed. Statutory exceptions to the rule that the prosecution should be held at the place where the crime was committed were created out of necessity. Strict adherence to the common-law rule often created insurmountable obstacles to prosecution. For instance, if part of the crime had been committed in one county and part in another the defendant could not be tried in either (Murtagh v Liebowitz,
The private vehicle trip statute (CPL 20.40, subd 4, par [g]) went into effect in 1971 as part of the over-all redrafting of
We also note that although the statute was only recently enacted in this State, it has a long history in other jurisdictions. There it has been held that the statute serves a limited purpose by assuring "that venue will lie somewhere when the exact site of an offense cannot be ascertained because it was committed in a moving vehicle” (People v Bradford, 17 Cal 3d 8, 16) or "during journeys from place to place” (Commonwealth v Stefanowicz, 133 Pa Super Ct, 501, 504), and "must be held inapplicable where, as here, the location of the crime is readily identifiable” (People v Bradford, supra, p 17; see, also, Watt v People, 127 Ill 9; People v Goodwin, 263 Ill 99; Commonwealth v Tarsnane, 170 Pa Super Ct 265). There is nothing in the history of CPL 20.40 (subd 4, par [g]) to indicate that the Legislature intended it to serve any broader purpose than this or to have any wider application. In response to the dissenter, suffice it to say that our determination that the order of the Appellate Division should be affirmed does not flow from a sense of justice denied nor a spirit of mercy but rather an accurate reading and application of the law and its historical relevance. To characterize this as a technicality without "social significance or impact” is to demean the purpose of judicial review.
Accordingly the order of the Appellate Division should be affirmed.
Notes
. Kings County and Brooklyn are referred to interchangeably since they both embrace the same geographic area.
. CPL 20.40 (subd 4, par [c]) states "An offense committed within five hundred yards of the boundary of a particular county, and in an adjoining county of this state, may be prosecuted in either such county.”
Dissenting Opinion
(dissenting). Notwithstanding the defendant’s
CPL 20.40 (subd 4, par [g]) provides: "An offense committed in a private vehicle during a trip thereof extending through more than one county may be prosecuted in any county through which such vehicle passed in the course of such trip.” The mandate of this statute is broad: permitting prosecution of a crime committed during the course of a multicounty trip in any county through which the vehicle passed. Nowhere in this statute is authorization to prosecute qualified in a case in which, as here, the county in which the crime was committed can be identified. Had the Legislature intended to limit application of the trip statute in this manner, it could have easily accomplished its purpose. In view of the absence of any manifest legislative intent indicating such a qualification, I would construe the trip statute literally to authorize prosecution of the instant case in either Kings or Queens County.
It is true that at common law a defendant in a criminal prosecution had the right to be tried by a jury selected from the vicinage or neighborhood, which was construed to mean the county in which the crime was committed. (People v Goldswer,
To be distinguished for present purposes is the concept of jurisdiction, which unlike venue, goes to the general power or competence of a court to try a defendant accused of the commission of a crime. The vital distinction between these
In the instant case, it is clear that Supreme Court, Kings County, had jurisdiction or competence to try a defendant accused of having committed the crimes of rape and sexual abuse. Inasmuch as the vehicle trip statute (CPL 20.40, subd 4, par [g]) does not limit its remedial operation to instances in which the precise location of the alleged criminal act cannot be determined, I would construe its mandate liberally to permit a trial of defendant in either Kings or Queens County. Had the Legislature intended to except this situation from operation of the vehicle trip statute, it could have easily done so. (See, e.g., Ill Ann Stats, ch 38, § 1-6, subd [f]; Kan Stats Ann, § 22-2608; La Code Crim Pro Ann, art 612 [specifically excepting the case in which the location of the crime can be determined].)
In the posture in which this case comes before us, there exists all the more reason to construe the vehicle trip statute liberally: The defendant has already been tried and convicted of rape and sexual abuse in Kings County. To place upon the complainant the onerous burden of participating in a second trial asks, in my opinion, too much, especially where, as in this case, the defendant can voice no substantial objection to being tried in Kings County. After all, the purpose behind requiring, as a general rule, that a defendant be tried in the county in which he is alleged to have committed a crime is to protect the defendant against unfairness or hardship arising from prosecution in a remote or unfamiliar locale. (United States v Cores,
In final analysis, the pity of this case is that the majority feels obliged to go beyond the literal meaning of a statute not to preserve integrity in the fact-finding process, not to preserve the fairness of trial, not to sustain principled conduct in a civilized society, nor to obey constitutional principles. Instead, a defendant guilty by overwhelming evidence of a heinous crime, obtains a retrial for which if it ever happens, will add further insult to the injury already sustained by a victim who was a teenager at the time of the crime. No sense of justice, no spirit of mercy, nor any principle of law requires the result reached — reversal of a conviction on a technicality without social significance or impact, except that obnoxious significance which empty technicalities enjoy.
Accordingly, I would reverse the order of the Appellate Division and reinstate the judgment of conviction.
Judges Gabrielli, Fuchsberg and Cooke concur with Judge Wachtler; Judge Jasen dissents and votes to reverse in a separate opinion in which Chief Judge Breitel and Judge Jones concur.
Order affirmed.