People v. James

• Decision Date: 09 March 1988
• Citation: 138 Misc.2d 920,526 N.Y.S.2d 363
• Parties: The PEOPLE of the State of New York v. Samuel JAMES, Defendant.
• Court: New York City Court

Page 363

526 N.Y.S.2d 363

138 Misc.2d 920

The PEOPLE of the State of New York v. Samuel JAMES, Defendant.

Criminal Court of the City of New York Kings County.

March 9, 1988.

Elizabeth Holtzman, Kings County Asst. Dist. Atty., Ephraim W. Shaban, for the People.

Pam B. Jackman-Brown, Legal Aid Society, Brooklyn, for defendant.

MARTIN G. KAROPKIN, Judge.

The defendant's motion to dismiss the accusatory instrument on the grounds of legal insufficiency is hereby granted.

The defendant is charged with PL § 220.03, Criminal Possession of a Controlled Substance in the Seventh Degree. Recently, the Criminal Courts have differed over whether a laboratory finding of "Residue" is sufficient to sustain this charge.

In deciding a motion to dismiss on the grounds of facial insufficiency, it is first necessary to consider the governing statutory requirements of CPL § 100.15 and CPL § 100.40. The former requires an accusatory portion of the instrument designating the charges and a factual portion containing allegations tending to support them. The latter requires that a Complaint provide reasonable cause, while to be an Information, the non-hearsay allegations of the factual part and/or any supporting depositions must establish, if true, every element of the crime charged.

The instrument presently before the Court charges the defendant with PL § 220.03 and states that the deponent, Police Officer DiStafano, observed the defendant in possession of cocaine crack, which he identified, based on his experience, in that, "deponent has previously seized cocaine crack, which was determined to be such by chemical analysis by the Police Laboratory, and the substance in this case possesses the same physical characteristics as such previously ... identified substance."

The Court finds, therefore, that this instrument taken alone is sufficient to be a Complaint, in that it provides allegations tending to support the charge and reasonable cause to believe the defendant may have committed such offense. See People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 and People v. Paul, 133 Misc.2d 234, 506 N.Y.S.2d 834.

In order to satisfy the non-hearsay requirements of an Information, however the Court holds that a laboratory report is necessary to support the Officer's bare belief, whether a foundation for the officer's experience is set forth or not. See People v. Harvin, 126 Misc.2d 775, 483 N.Y.S.2d 913; People v. Ranieri, 127 Misc.2d 132, 485 N.Y.S.2d 495; People v. Blow, 127 Misc.2d 1054, 487 N.Y.S.2d 293; People v. McMillan, 125 Misc.2d 177, 479 N.Y.S.2d 449.

We next address the central issue of whether the addition of the laboratory report, showing cocaine "residue", can convert this Complaint to a jurisdictionally sufficient Information, which is necessary to proceed to trial. In order to do so it must first satisfy the non-hearsay requirement and together with the Complaint, serve to establish, if true, every element of the crime charged.

This Court holds that a laboratory finding of cocaine "residue", determined by chemical analysis, establishes the existence of a controlled substance within the statutory meaning of PL § 220.03. Although others have argued a need for a "usable amount", we conclude that identification of the presence of a controlled substance in any form, be it ester, salt, sulfate, phosphate or residue, is precisely what is contemplated by possession in the Seventh Degree, which requires only identification not measurement. See N.Y. Public Health Law § 3306, Schedule II (B)(4) and Schedules of Controlled Substances, 21 U.S.C. 812(c), Schedule II (a)(4). See also CPL § 715.50, Analysis of Dangerous Drugs, Subd. 1, which refers to "qualitative identification", while indicating "weight and quantity" need only be measured "where appropriate".

In a letter to the Brooklyn District Attorney, dated November 25, 1987, Doctor Edward Stanley, Director of the Police Laboratory, states that residue refers to, "enough material present to make a positive identification", but, "means that the weight of the controlled substance is very small and not easily transferrable", although, "[t]he weight of any residue can be determined if one wished ... to do so." Since possession in the Seventh Degree requires no specific amount, the police seem to have concluded that such a measurement is unnecessary.

In People v. Mizell, NYLJ, March 1, 1988, p 14, c 5, the Appellate Term, 2nd Department found that, "proof of only a non-quantifiable amount of a controlled substance is insufficient, without more, to support a conviction for criminal possession of the substance." The Laboratory Director's letter, above, indicates that "residue" is a measurable or quantifiable amount, but that such weighing is not done by virtue of the silence of the statute regarding it. Based upon this definition, it would appear that the Appellate Term decision, by its language, would require that residue, as defined by the Police laboratory, could be a sufficient amount to support a criminal conviction, but that unless the Information alleges, "additional factual data" it is "facially insufficient".

It is the majority view of the Law, in jurisdictions throughout the United States, that possession of even non-usable amounts of controlled substances can sustain a criminal conviction. See Criminal Liability For Possession of Nonusable Amounts of Controlled Substances, 77 Columbia Law Review 596.

Article 220 of the current Penal Law was enacted in 1973 as part of a comprehensive effort by the Governor and Legislature to combat drug abuse in New York. Prior to enactment of the statute in question, the issues were studied by a legislative committee and their recommendations clearly show that the intent of the law was to encompass more than just the use and sale of controlled substances:

Our determination to retain the concept of misdemeanor possessory offenses is based upon our belief that the removal of potential penal consequences will effect an increase in the incidence of drug abuse ... by the removal of penal sanctions for the unlawful possession of dangerous drugs. Interim Report of the Temporary Comm'n to Evaluate State Drug Laws, 1972, at Page 58.

Based on the foregoing, we cannot agree...