        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1424
KA 11-01211
PRESENT: SCUDDER, P.J., CENTRA, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EDWARD HARVEY, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered April 26, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated, and the matter
is remitted to Onondaga County Court for further proceedings on the
indictment.

     Memorandum: Defendant appeals from a judgment convicting him
upon a guilty plea of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]). We agree with defendant that the
plea colloquy conducted by County Court is factually insufficient to
establish territorial jurisdiction. “Because the State only has power
to enact and enforce criminal laws within its territorial borders,
there can be no criminal offense unless it has territorial
jurisdiction” (People v McLaughlin, 80 NY2d 466, 471). Contrary to
the People’s contention, the issue of territorial jurisdiction raised
by defendant survives his waiver of the right to appeal (see People v
Montane, 110 AD3d 1101, 1101-1102, lv denied 22 NY3d 1089), does not
require preservation (see People v Holmes, 101 AD3d 1632, 1633, lv
denied 21 NY3d 944; see generally People v Hanley, 20 NY3d 601, 604-
605; People v Correa, 15 NY3d 213, 222), and is not waived by his
guilty plea (see Montane, 110 AD3d at 1102-1103; People v Casias, 303
AD2d 294, 294, Iv denied 100 NY2d 579; see generally People v
Carvajal, 6 NY3d 305, 312; McLaughlin, 80 NY2d at 471).

     As a general rule, “for the State to have criminal jurisdiction,
either the alleged conduct or some consequence of it must have
occurred within the State” (McLaughlin, 80 NY2d at 471). Here,
although the indictment alleged conduct by defendant that occurred in
the State of Ohio and the City of Syracuse, during his plea colloquy
                                 -2-                          1424
                                                         KA 11-01211

defendant admitted to possessing a weapon in Ohio only; there was no
mention during the plea colloquy of possession of a weapon in
Syracuse. We conclude that this case is analogous to cases in which
the plea colloquy negates an element of the crime to which defendant
is pleading guilty, and, thus, we further conclude that, “where[, as
here,] the defendant’s recitation of the facts underlying the crime
pleaded to clearly casts significant doubt upon the [State’s power to
prosecute the case], . . . the trial court has a duty to inquire
further to ensure that [the State has territorial jurisdiction]”
(People v Lopez, 71 NY2d 662, 666; see generally Carvajal, 6 NY3d at
312). Because the court failed to do so, we reverse the judgment of
conviction, vacate the plea and remit the matter to County Court for
further proceedings on the indictment.

     In light of our determination, we need not review defendant’s
remaining contention.




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
