People v. Huhn
| Decision Date | 30 January 2012 |
| Docket Number | No. 2011NA004618.,2011NA004618. |
| Citation | 950 N.Y.S.2d 493 |
| Parties | The People of the State of New York, v. Kevin Huhn, Defendant. |
| Court | New York District Court |
OPINION TEXT STARTS HERE
Kathleen Rice, Nassau County District Attorney.
Brian Griffin, Esq., for Defendant.
The Defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree, Operating a Motor Vehicle While Ability Impaired by Drugs, Operating a Motor Vehicle While Ability Impaired by the Combined Influence of Drugs or of Alcohol and any Drug or Drugs, Failing to Stay in a Single Lane, Failing to Signal a Turn and Operating a Vehicle with a Modified Muffler, all in violation of Penal Law § 220.03 and Vehicle and Traffic Law §§ 1192(4), 1194(4a), 1128(a), 1163(a) and 375(31), respectively.
The District Court Information charging the Defendant with Criminal Possession of a Controlled Substance in the Seventh Degree, attested to by P.O. Karen C. O'Brien, alleges that on February 28, 2011, at about 2:45 a.m., the Defendant Officer O'Brien concludes that the substance in question was determined to be heroin “based on [her] four years experience as a Police Officer with Nassau County Police Department, [her] previous narcotic related arrests [and her] ... experience and training[.]” The People have also filed and have had annexed to the District Court Information a laboratory report from NMS Labs which states, inter alia, that the substance examined was heroin.
Accompanying the Informations is a supporting deposition, attested to by Officer O'Brien, which provides that on February 28, 2011, at about 2:45 a.m., she observed the Defendant operating a 2007 Ford vehicle, on Hempstead Turnpike “moving from the right hand lane over to the far left lane failing to signal.” Officer O'Brien alleges that she then observed the Defendant “cross [ ] over the solid yellow line riding up on the middle highway divider, then swerve[ ] back over into the left lane.” Following a turn onto Front Street, Officer O'Brien alleges, that she turned on her emergency lights and the Defendant stopped his vehicle. Officer O'Brien further alleges that when she approached the driver's side of the Defendant's vehicle she According to Officer O'Brien, at that time, the Defendant stated to her, “I had a 40 oz about two hours ago, but I got food and I'm good to go home now' ( sic ) I live around that block, I'm not that wasted'.” Officer O'Brien alleges that she then had the Defendant step out of his vehicle to perform Standardized Field Sobriety Tests (“SFSTs”) and, at that time, detected the odor of alcohol coming from the Defendant's breath. According to the officer, upon performing the SFSTs the Defendant “was very unsteady on his feet ... unable to touch heel to toe or walk a straight line ... unable to count correctly ... and did place his foot down several times [while performing the one leg stand].” At this point, according to Officer O'Brien, the Defendant stated to her “that he had taken xanax as well as suboxone earlier in the night which would explain why he might have had a hard time performing SFST.” The Defendant is further alleged to have stated to Officer O'Brien, “that he has a drug problem and that he did snort heroin around 8am.” Following his arrest and the recovery of a plastic bag from the Defendant's pocket, the Defendant allegedly told Officer O'Brien, “I forgot that I put that in my pocket, it is heroin.”
The Defendant now moves for an order dismissing Counts One, Two and Three as being facially insufficient and pursuant to CPL § 30.30, granting the Defendant a Mapp/Dunaway/Huntley1 hearing, and granting the Defendant a Sandoval2 hearing.
The People consent to a Sandoval hearing and to a hearing concerning the voluntariness of the Defendant's statements. They oppose the Defendant's motion in all other respects. The court further notes that for some inexplicable reason the People incorporate their Demand for Discovery into their Affidavit in Opposition to Defendant's Motion. This incorporation of discovery demands into their opposition paper to the instant motion is inappropriate, contrary to the procedure contemplated by the Criminal Procedure Law and shall not be addressed by the court.
The District Court Information charging the Defendant with Criminal Possession of a Controlled Substance in the Seventh Degree will be found facially sufficient where it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56 (1979), and a factual part containing “a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]” CPL § 100.15(3) based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions [CPL § 100.20], must “provide reasonable cause to believe that the defendant committed the offense,” People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927 (1987); CPL § 100.40(1)(b) and contain non-hearsay allegations which, if true, establish every element of the offense charged, CPL § 100.15(3); CPL § 100.40(1)(c)People v. Moore, 5 NY3d 725, 800 N.Y.S.2d 49 (2005); People v. Thomas, 4 NY3d 143, 791 N.Y.S.2d 68 (2005); People v. Bottari, 31 Misc.3d 90, 924 N.Y.S.2d 733 (9th & 10th Jud. Dists. 2011) The allegations set forth in the Information and the supporting depositions must be viewed in a light most favorable to the People, People v. Martinez, 16 Misc.3d 1111(A), 847 N.Y.S.2d 898 (Table), (Dist.Ct. Nassau Co.2007); People v. Delmonaco, 16 Misc.3d 526, 837 N.Y.S.2d 869 (Dist.Ct. Nassau Co.2007); People v. Mendelson, 15 Misc.3d 925, 834 N.Y.S .2d 445 (Dist.Ct. Nassau Co.2007), and are not to be given an overly restrictive or technical reading. People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88 (2000); People v. Baumann & Sons Buses, Inc., 6 NY3d 404, 813 N.Y.S.2d 27 (2006)
The Defendant argues that the lab report which the People have annexed to the Information in support of Count One is unsworn and cannot serve as a proper supporting deposition. The Defendant further argues that without such a supporting deposition the Information consists of nothing more than Officer O'Brien's conslusory statement that the substance seized from the defendant was a particular type of controlled substance and must be dismissed as facially insufficient.
The People's opposition fails to address these arguments or any portion of the Defendant's motion to dismiss Count One.
CPL § 100.20 unequivocally mandates that a supporting deposition be “subscribed and verified[.]” CPL § 100.30 provides that a supporting deposition may be verified in the following manners:
(a) Such instrument may be sworn to before the court with which it is filed.
(b) Such instrument may be sworn to before a desk officer in charge at a police station or police headquarters or any of his superior officers.
(c) Where such instrument is filed by any public servant following the issuance and service of an appearance ticket, and where by express provision of law another designated public servant is authorized to administer the oath with respect to such instrument, it may be sworn to before such public servant.
(d) Such instrument may bear a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument.
(e) Such instrument may be sworn to before a notary public.
The lab report the People have annexed has not been verified by any of these methods. The fact that the lab report contains the sentence, “I certify that NMS Labs, Inc., has taken custody of the evidentiary material on 4/22/11 and that all Chain of Custody documents and specimen integrity seals were in order [,]” or that the report was signed by both the analyst and her supervisor cannot serve as a substitute for a proper verification. In the absence of such proper verification the lab report “[is] not [a] valid supporting deposition [ ], and the allegations contained therein cannot be relied upon when determining whether the information[ ][is] legally sufficient (Matter of Shirley v. Schulman, 78 N.Y.2d at 916, 573 N.Y.S.2d 456, 577 N.E.2d 1048People v. Azuka T., N.Y.L.J., Jan. 26, 1998 [App. Term, 9th & 10th Jud. Dists.]; see also People v. Kessman Bros., 2002 N.Y. Slip Op. 50653(U), 2002 WL 32083834 App. Term 9th & 10th Jud. Dists.] [accusatory instrument was jurisdictionally defective because it was not verified] ).” People v. Roslyn Sephardic Center, 17 Misc.3d 74, 76, 847 N.Y.S.2d 332, 674 (App.Term 9th & 10th Jud. Dists.2007)
This, however, neither ends our discussion nor our analysis of the Information charging Criminal Possession of a Controlled Substance in the Seventh Degree.
In People v. Kalin, 12 NY3d 225, 231, 878 N.Y.S.2d 653,656 (2009) the Court of Appeals “rejected the notion that a laboratory report is necessary to set forth a prima facie case....” The Court held that a pleading which “states the officer's familiarity with and training regarding the identification of the drug, provides some information as to why the officer concluded that the substance...
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