*1 Defendant is charged in a twenty-nine count indictment with crimes including Rape in the Second Degree (Penal Law §130.30(1)), Sexual Abuse in the Second Degree (Penal Law §130.60(1)), and Endangering the Welfare of a Child (Penal Law §260.10(1)). The victims referred to in the indictment only by initials are three children who resided at the Henry Ittleson Center, a residential treatment facility for children between eight and fourteen years old operated by The Jewish Board of Children and Family Services, a not for profit agency. The Ittleson Center is located at 5050 Iselin Avenue in Bronx County. Defendant had been an employee of the facility whose duties included providing direct care and counseling to the children at Ittleson, as well as transporting them for home visits in a van owned by the agency.*2
The defendant moves to dismiss all counts of the indictment, arguing that this Court does not have proper geographic jurisdiction over any of the counts in the indictment, as the actual crimes alleged occurred in places other than Bronx County. After review of the evidence before the grand jury and the specific “venue” charge given by the prosecutor, the Court dismisses counts four through twelve of the indictment. Although the evidence before the grand jury was sufficient to establish the statutory elements of each of those crimes, this Court lacks the geographic jurisdiction to preside over the prosecution of those counts. The remaining counts are not only supported by legally sufficient evidence, but venue is also properly fixed in Bronx County for those counts.At common law, as well as under the New York State Constitution, a criminal defendant could only be prosecuted in the county in which the crime occurred, unless the legislature provided otherwise. See People v. Greenberg, 89 NY2d 553, 557-58 (1997); People v. Giordano, 87 NY2d 441, 446 (1995); People v. Moore, 46 NY2d 1, 6 (1978); People v. Goldswer, 39 NY2d 656, 659-61 (1976). The legislature, by statute, has provided narrow exceptions to this common law rule. See generally Penal Law §20.40. None of the statutes fixing venue in a county other than the one in which a crime actually occurred has ever been found to be unconstitutional. Even though the People are required only to establish proper venue by a preponderance of the evidence at trial, a defendant may nonetheless raise an objection to the “county of prosecution prior to trial.” Cf. Greenberg, 89 NY2d at 556. If no challenge to the court’s geographical jurisdiction is ever raised, the argument is waived for appellate purposes. Id.Here, the prosecutor chose to instruct the jury to find this Court was the proper venue in connection with several counts voted concerning allegations of crimes committed against the complaining witness named as “M.P.” The People specifically asked the grand jury to find venue based on CPL §20.40 (4)(g) in connection with those counts. This statute provides that “[a]n 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.” Id.Defendant moves to dismiss all counts of the indictment under the mistaken assumption that the People relied on this statute to establish Bronx County Supreme Court’s geographical jurisdiction to preside over all the charges involving all the victims. In fact, the evidence before the grand jury concerning indictment counts fifteen through twenty-one, relating to the
