People v. Jones

• Decision Date: 09 May 1989
• Citation: 541 N.Y.S.2d 340,73 N.Y.2d 427,539 N.E.2d 96
• Parties: , 539 N.E.2d 96 The PEOPLE of the State of New York, Appellant, v. Melvin JONES, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 340

541 N.Y.S.2d 340

73 N.Y.2d 427, 539 N.E.2d 96

The PEOPLE of the State of New York, Appellant, v. Melvin JONES, Respondent.

Court of Appeals of New York.

May 9, 1989.

Robert M. Morgenthau, Dist. Atty. (Ralph Fabrizio and Norman Barclay, New York City, of counsel), for appellant.

Beverly Van Ness and Philip L. Weinstein, New York City, for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

The People appeal from an order of the Appellate Division reversing a conviction after jury trial for criminal sale of a controlled substance in the fifth degree and dismissing the indictment. The decisional ground was insufficiency of the proof that the 10 sold Darvocet tablets were a criminally forbidden controlled substance. We agree with the Appellate Division that the People failed to provide sufficient evidence, through its expert chemist witness or otherwise, that the tablets at issue consisted of or were chemically equivalent to the controlled substance defendant was charged with selling. The People's appeal, therefore, fails and we affirm the order of dismissal.

Defendant was arrested for the sale of 10 Darvocet tablets to an undercover police officer for $10 in a routine "buy and bust". He was then indicted for the sale of a controlled substance alleged to be propoxyphene. At trial, an expert in chemistry and in the analysis of controlled substances testified for the People that Darvocet is propoxyphene and added, over objection, that it was a controlled substance. Her qualifications as an expert were not objected to and are not in question on this appeal. The Trial Justice later instructed the jury, based upon information he acquired from an unidentified source and from the Physician's Desk Reference, that propoxyphene was the same as dextropropoxyphene. The latter is explicitly enumerated as a controlled substance in schedule IV of Public Health Law § 3306 (see also, Penal Law § 220.00[5]. Defendant again took exception, arguing the jury had no evidence before it that dextropropoxyphene, the only listed controlled substance in this generic category, was the same as propoxyphene or Darvocet.

The Appellate Division's memorandum for reversal of the conviction stated that inasmuch as there are "two varieties of propoxyphene, it was incumbent upon the People to prove that the propoxyphene defendant sold was chemically identical to the dextropropoxyphene listed in schedule IV [of Public Health Law § 3306] as a proscribed drug" and that the expert "offered no factual basis to support her opinion that propoxyphene was a controlled substance" (138 A.D.2d 301, 302, 526 N.Y.S.2d 109).

Despite the expert's excellent credentials and her ample, ordinary foundational testimony, she was not asked nor did she provide the essential element to answer the determinative question as to what controlled substance, if any, was contained in the tested tablets and, without that evidentiary base, a bald conclusion that it is a forbidden controlled substance is useless in this criminal prosecution. To suggest that the defendant can somehow attend to this deficiency as to the expert's opinion, or the critical element upon which it is based, by cross-examination is to shift functionally the burden of proof as to the core element of the crime itself which must be proved in this case--sale of a controlled substance.

As a general rule, in order for an expert's opinion to qualify as evidence supplying a necessary element of proof on a sufficiency review, it must rest on facts in evidence or on those personally known and testified to by the expert (People v. Samuels, 302 N.Y. 163, 171, 172, 96 N.E.2d 757; People v. Keough, 276 N.Y. 141, 145-146, 11 N.E.2d 570). A flexibility has evolved which permits expert reliance on out-of-court material "if it is of a kind accepted in the profession as reliable in forming a professional opinion" or, alternatively, if it "comes from a witness subject to full cross-examination on the trial" (People v. Sugden, 35 N.Y.2d 453, 460, 461, 363 N.Y.S.2d 923, 323 N.E.2d 169; see, Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 725-726, 480 N.Y.S.2d 195, 469 N.E.2d 516; People v. Stone, 35 N.Y.2d 69, 74-76, 358 N.Y.S.2d 737, 315 N.E.2d 787; McLaughlin, Supplementary Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, 1989 Supp.Pamph., CPLR 4515). Authorized use of facts from outside the evidentiary record does not, however, alter "the basic principle that an expert's opinion not based on facts is worthless" (Caton v. Doug Urban Constr. Co., 65 N.Y.2d 909, 911, 493 N.Y.S.2d 453, 483 N.E.2d 128) because "[a]n expert's opinion is only as sound as the facts upon which it is based" (People v. Cronin, 60 N.Y.2d 430, 434, 470 N.Y.S.2d 110, 458 N.E.2d 351 [Cooke, Ch.J., concurring].

Consequently, an expert who relies on necessary facts within personal knowledge which are not contained on the record is required to testify to those facts prior to rendering the opinion (see, Weibert v. Hanan, 202 N.Y. 328, 331, 95 N.E. 688). Conversely, expert opinions of the kind needing material evidentiary support for which there is none otherwise in the direct evidence or in some equivalently admissible evidentiary form have been excluded (see, People v. Patrick, 182 N.Y. 131, 172, 74 N.E. 843; Shore Haven Apts. v. Commissioner of Fin. of City of N.Y., 93 A.D.2d 233, 236, 461 N.Y.S.2d 885; Richardson, Evidence § 370 [Prince 10th ed.].

The validity of this evidentiary theorem, requiring support for the expert's evidentiary submission of an essential element of the crime charged, may be tested by examining its functional and practical operation especially in a case of this kind. Expert opinion testimony is used in partial substitution for the jury's otherwise exclusive province which is to draw "conclusions from the facts" (People v. Cronin, 60 N.Y.2d 430, [73 N.Y.2d 431] 432, 470 N.Y.S.2d 110, 458 N.E.2d 351, supra). It is a kind of authorized encroachment in that respect. But, to insure that the jury is not doubly displaced, it "must [at least] have the facts upon which the expert bases his opinion in order to evaluate the worth of that opinion" (People v. Samuels, 302 N.Y. 163, 172, 96 N.E.2d 757, supra), as well as to judge the reliability of extrajudicial material, if that is the plank upon which the expert's opinion rests (see, Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 726, 480 N.Y.S.2d 195, 469 N.E.2d 516, supra). It is also necessary so as not to dispense with or shift the prosecutor's absolute burden to prove every element of the crime charged beyond a reasonable doubt.

The pertinency, indeed the criticality of these evidentiary norms as applied to this case, is evident from examination of Public Health Law § 3306, which references two substances with a propoxyphene root: dextropropoxyphene, which is a controlled substance (see, schedule II [c][5]; schedule IV [b][2] proscribed by Penal Law § 220.00(5), and levopropoxyphene, which is expressly excepted from controlled substance classification (see, schedule II [c]. The People's chemist testified that Darvocet is propoxyphene and then opined that it was a controlled substance. But that particular leap does not necessarily succeed in chemistry, logic or law because neither the jury nor we as a reviewing court governed by a record of evidence have been given anything to bridge the gap. Without admissible proof of some kind connecting Darvocet to the forbidden dextropropoxyphene, the chain is severed and incomplete. In failing to supply an evidentiary predicate for their own chemist expert's ultimate conclusion, the People presented an insufficient case. The corpus delicti of the crime charged is lacking and this record, as far as the entire proof shows, is susceptible to the equally available and innocent inference that the sold Darvocets could just as well have been the lawful propoxyphene derivative, levopropoxyphene.

Moreover, this core deficiency could not be cured in the circumstances of this case by the trial court taking judicial notice that Darvocet may be...