People v. Escalera

• Decision Date: 25 April 1989
• Docket Number: AR-2A
• Citation: 143 Misc.2d 779,541 N.Y.S.2d 707
• Parties: The PEOPLE of the State of New York v. Juan ESCALERA, Defendant
• Court: New York City Court

Page 707

541 N.Y.S.2d 707

143 Misc.2d 779

The PEOPLE of the State of New York v. Juan ESCALERA, Defendant.

Criminal Court of the City of New York,

New York County, Part AR-2A.

April 25, 1989.

Robert Morgenthau, Dist. Atty., and Paul Schechtman, New York City, for the People.

Daniel Scott, for Escalera.

MICHAEL A. GARY, Judge:

Defendant is charged with Criminal Sale of Marijuana in the 4th Degree (Penal Law § 221.40), Unlawful Possession of Marijuana (PL § 221.05) and Criminal Possession of a Hypodermic Instrument (PL § 220.45). The complaint alleges that defendant sold a bag of marijuana for $10 to an undercover police officer, and once arrested he was found to possess four more bags of marijuana and one hypodermic instrument.

At arraignment, in order to convert the complaint into an information, the People filed with the court a long form supporting deposition, containing a series of paragraphs with boxes to check where applicable--a format approved in People v. Hohmeyer, 70 N.Y.2d 41, 517 N.Y.S.2d 448, 510 N.E.2d 317 (1987), and in compliance with CPL § 100.30. Insofar as relevant, the first page of the properly executed form contains a paragraph in which the undercover officer corroborates the contents of the complaint, and adds that he gave the recovered substances to another officer, Police Officer John Rodelli, for "field testing". The second page of the supporting deposition contains two paragraphs in which Police Officer John Rodelli states that he tested both the substances purchased from the defendant and the substances recovered incident to his arrest. The last part of the two paragraphs reads as follows:

... I used a Duquenois-Levine Reagent System field test and carefully followed the directions on the kit. (I have received special training in the identification of marijuana, including field testing procedures.) The substance, which had the color, texture, and distinctive odor of marijuana, field tested positive for marijuana.

This was signed under a jurat by Police Officer Rodelli.

Upon filing, the People requested that the court declare the complaint had thereby been converted to an information. (No laboratory report is required to prove possession of a hypodermic instrument. People v. Strong, 42 N.Y.2d 868, 397 N.Y.S.2d 779, 366 N.E.2d 867 [1977]. Defense counsel objected on the ground that conversion could only be accomplished by the filing with the court of a standard police laboratory report showing the presence of marijuana. The court reserved decision for a formal motion addressing the issue presented: whether for a charge of possession or sale of marijuana the affirmative opinion of a police witness who has received special training in the identification of marijuana coupled with a positive test result yielded by that same witness who has performed a chemical field test on the recovered substance is sufficient to convert a complaint into an information.

An information must contain non-hearsay, factual allegations sufficient to establish a prima facie case as to each charge in the complaint. People v. Alejandro, 70 N.Y.2d 133, 137-139, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987), see CPL § 100.40(1)(c) and § 100.15(3). A prima facie case is that quantum of competent and admissible evidence such that, if unexplained and uncontradicted, would warrant a conviction. People v. Harvin, 126 Misc.2d 775, 483 N.Y.S.2d 913 (1984).

In the only Court of Appeals decision addressing the issue of expert testimony as to the identity of marijuana, the alleged marijuana itself was not available for testing. The defendant's conviction for sale of marijuana was reversed because it rested on the testimony of a witness who identified it on the basis of his two or three isolated experiences taking the drug. People v. Kenny, 30 N.Y.2d 154, 157, 331 N.Y.S.2d 392, 282 N.E.2d 295 (1972). Since a witness who testifies to the identification of a drug is essentially an expert witness, the Kenny court rejected this witness' qualifications as a basis for his opinion. More recent Appellate Division decisions and those of courts of other jurisdictions clearly establish that a drug user can qualify as an expert witness in the identification of a drug not produced as evidence in court. People v. Lynch, 85 A.D.2d 126, 447 N.Y.S.2d 549 (4th Dept. 1982) (buyers testified defendant sold them marijuana and phencyclidine); People v. Jewsbury, 115 A.D.2d 341, 496 N.Y.S.2d 164 (4th Dept. 1985) (Indictment sustained where accomplice buyer testified in Grand Jury that what defendant sold him was cocaine; corroboration consisted of taped conversations but no drugs were recovered); see, generally, ANN.95 ALR3rd 978. In Jewsbury, the Appellate Division described the test laid down in Lynch for a drug user to qualify as an expert witness:

... drug users who speak from experience and observation with drugs can identify drugs in court. If users can demonstrate a knowledge of the narcotic, they are competent to testify. The weight to be given the testimony is for the jury to determine. Jewsbury, supra, at 343, 496 N.Y.S.2d 164.

As noted earlier, an information must contain non-hearsay factual allegations sufficient to establish a prima facie case. This is exactly the same standard of proof necessary to support an indictment. People v. Alejandro, supra, 70 N.Y.2d at 138, 517 N.Y.S.2d 927, 511 N.E.2d 71. See CPL § 190.65(1)(a). Accordingly, since a drug user's expert testimony on the identification of a controlled substance is sufficient to support an indictment for the sale of cocaine, People v. Jewsbury, supra, it can be logically inferred that, given the same standard of proof, an expert drug user's supporting deposition could convert a complaint for criminal sale of marijuana into an information. In similar fashion, it would seem that a supporting deposition from a police officer specifically trained in the identification of marijuana would have the same effect.

Nonetheless, most lower courts which have considered the need for expert evidence in marijuana cases have held that a laboratory report must be filed to convert a complaint into an information. People v. Harvin, supra; People v. Ranieri, 127 Misc.2d 132, 485 N.Y.S.2d 495 (1985); People v. Blow, 127 Misc.2d 1054, 487 N.Y.S.2d 293 (1985); People v. McGriff, 139 Misc.2d 361, 526 N.Y.S.2d 712 (1988). Contra, People v. Hernandez, 124 Misc.2d 376, 476 N.Y.S.2d 459 (1984); People v. McMillan, 125 Misc.2d 177, 479 N.Y.S.2d 449 (1984) (dicta); People v. Paul, 133 Misc.2d 234, 506 N.Y.S.2d 834 (1986) (dicta). Their rationale is, notwithstanding the police officers' averments in the complaints, that what they recovered is marijuana, a significant percentage of laboratory reports subsequently filed with the court do not support the officers' allegations. See People v. McGriff, supra 139 Misc.2d at 364, 526 N.Y.S.2d 712.

While it may seem anomalous that a drug user's expertise can convert a complaint for sale of marijuana into an information while a police officer's may not, the anomaly is easily resolved by an examination of the facts of the previously cited cases. Where a drug user is allowed to give expert testimony concerning the identification of a drug, the basis of the expertise is the witness' actual use of the drug in question on numerous occasions and his experience concerning its repeated, similar effects on his person. People v. Lynch, supra 85 A.D.2d at p. 127, 447 N.Y.S.2d 549, and cases cited therein, see also 95 ALR3d 978. In contrast, the common thread of those cases which have held a lab report is necessary for conversion is that the basis for the police officer's opinion is an extremely limited examination of the recovered substance and, therefore, cannot qualify as expert opinion. See People v. Kenny, supra. As succinctly stated in McGriff:

A police officer is simply not in a position to provide the factual predicate required for an information by his mere observation that a substance is marijuana. McGriff, supra, 139 Misc.2d at 364, 526 N.Y.S.2d 712.

Applying McGriff's holding to the case at bar, it is obvious that Police Officer Rodelli did far more than conduct a visual observation of a material in a plastic bag. According to his sworn deposition, he removed the alleged marijuana from the bag, observed its color, felt its texture and smelled its odor. As a police officer with special training in the identification of marijuana whether Police Officer Rodelli's opinion, based on his actual handling of the alleged marijuana, that the substance he examined had the color, texture and distinctive odor of marijuana is sufficient, standing alone, to convert the complaint for sale and possession of marijuana into an information need not be decided by this court. (But see, Hernandez, supra and cases on the "singular aroma of marijuana," People v. Barnes, 149 A.D.2d 359-360, 539 N.Y.S.2d 938 (1st Dept.1989), see also--ANN. 5 A.L.R.4th 681.) This is because the People also rely upon the results of the modified Duquenois-Levine Reagent System field test administered by the officer.

Duquenois-Levine Test

In the documentation submitted by the People in support of their motion ¹, the Duquenois-Levine test is described as an extremely reliable test for the presence of marijuana, developed in 1937, modified in 1962 and currently in wide use in forensic laboratories. The particular test kit used by Police Officer Rodelli has been purchased by law enforcement agencies in nearly every state as well as the United States Armed Forces. Flaherty App. A. p 2.

The operation of the test kit is as follows:

The test kit contains three ampoules: (i) denatured alcohol, U.S.P. distilled water, vanillin, and acetaldehyde; (ii) hydrochloric acid; and (iii) cholorform. The tester introduces four or five small strands of marijuana into the pouch, reseals it, breaks the left ampoule, and agitates for one minute. This ampoule is a solvent that extracts the cannabinoids, if any, from...