People v. Kenny

Decision Date20 May 1971
PartiesThe PEOPLE of the State of New York, Respondent, v. Douglas KENNY, Appellant.
CourtNew York Supreme Court — Appellate Division

Owens D. Grogan, Dist. Atty., Franklin County, Malone, for respondent.

Stanley G. Weiss, New York City (Michael J. Horowitz, New York City, of counsel), for appellant.

Before STALEY, J.P., and GREENBLOTT, COOKE, SWEENEY and SIMONS, JJ.

SIMONS, Justice.

This is an appeal from a judgment of the County Court of Franklin County, rendered November 26, 1969, convicting defendant of violating section 220.40 of the Penal Law.

Defendant has been convicted of the crime of selling a dangerous drug, and sentenced to an indeterminate prison term not to exceed five years. The charge, made seven months after he alleged incident, is that defendant sold marijuana to the complaining witness, 19 years old at the time. The marijuana was destroyed by the complainant and not available for chemical anlysis or production at the trial. The conviction rests on the testimony of the complaint who stated how the substance appeared, smelled and tasted, that it make him 'high' and that in his opinion it was marijuana.

The position of the District Attorney was stated in the record during a colloquy with the court. 'We claim he (the complainant) is merely a layman who has on at least three occasions smoked what he believed was identified to him as being marijuana, grass, pot, stuff, and that he observed that on these three occasions, he stated it was pale green, it had a musty or peculiar odor, and that the smoke smelled sweet, and that from smoking it, he had a reaction that caused him to be dizzy, to become 'high".

Convictions involving the sale of dangerous drugs require more than the conclusion of a layman to establish the drug as one of those proscribed by statute. (Public Health Law, § 3301, subd. 38.) All elements of the crime, including the fact that a dangerous drug was the subject of the sale, must be proven beyond a reasonable doubt. There was no competent proof in this case that the substance purchased from the defendant was marijuana or that the characteristics attributed to it by the complaint were those of marijuana.

The general rule is that witnesses must state facts, not conclusions. Opinions of lay witnesses may be received in evidence when the facts which constitute the opinion are incapable of description, the subject matter is one that does not require expert knowledge, and the witness is qualified to give the opinion. (Greenfield v. People, 85 N.Y. 75; Matter of Search for and Seizure of Liquors, 204 App.Div. 185, 197 N.Y.S. 758.) The complainant could properly describe the appearance, taste, smell and effect of the substance, but he was not qualified to identify it as the narcotic, marijuana. His testimony was not offered as that of a qualified expert (clearly he was not one), but as that of a layman, and as such, it was incompetent for purposes of identifying the substance as marijuana. The evidence was improperly received.

The conclusion of the complainant being inadmissible, the jury was left with only the evidence of the physical characteristics of the substance. Expert evidence was required to identify the substance since the subject under consideration was not within the knowledge or experience of ordinary jurors. (Dougherty v. Milliken, 163 N.Y. 527, 533, 57 N.E. 757, 759; see, also, Fisch, New York Evidence, § 368; Richardson, Evidence, 8th Ed., §§ 383, 387.)

The District Attorney urges analogy to cases involving intoxicating beverages. (See People v. Leonard, 8 N.Y.2d 60, 201 N.Y.S.2d 509, 167 N.E.2d 842; People v. Marx, 128 App.Div. 828, 112 N.Y.S. 1011; People v. Seeley, 105 App.Div. 149, ...

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11 cases
  • People v. Boyd
    • United States
    • Court of Appeal of Michigan — District of US
    • October 13, 1975
    ...question. 2 The only case that the defendant cites to us for the opposite proposition is easily distinguishable. In People v. Kenny, 36 A.D.2d 477, 320 N.Y.S.2d 972 (1971), 3 the complaining witness, whom the prosecution relied on to establish that the substance was marijuana, had smoked it......
  • BERNARD v. U.S.
    • United States
    • D.C. Court of Appeals
    • May 31, 1990
    ... ... A lay person's impression, for example, is insufficient to establish the identity of a suspected drug. People v. Kenny, 36 A.D.2d 477, 320 N.Y.S.2d 972 (App. Div. 1971), aff'd, 30 N.Y.2d 154, 282 N.E.2d 295, 331 N.Y.S.2d 392, 282 N.E.2d 295 (1972).5 Although ... ...
  • Slettvet v. State
    • United States
    • Indiana Supreme Court
    • April 11, 1972
    ...only logical because the public is simply not that familiar with the nature and effect of most contraband drugs. In People v. Kenny (1971), 36 A.D.2d 477, 320 N.Y.S.2d 972, a witness inexperienced with drugs who had smoked what had been identified to him as marijuana was competent to descri......
  • Einaugler v. Supreme Court of State of N.Y.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 10, 1997
    ...248 (Ct.App.1987), as it is with any other matter not normally within a criminal jury's understanding, see People v. Kenny, 36 A.D.2d 477, 320 N.Y.S.2d 972, 974 (3d Dept.1971) (prosecution for possession of marijuana) ("Expert evidence was required to identify the substance since the subjec......
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