People v Kalin, 2007 NY Slip Op 51998(U) (N.Y. App. Term 10/5/2007)

• Decision Date: 05 October 2007
• Docket Number: 2006-389 Q CR.
• Citation: 2007 NY Slip Op 51998
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM KALIN, Appellant.
• Court: New York Supreme Court — Appellate Term

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2007 NY Slip Op 51998(U)

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM KALIN, Appellant.

2006-389 Q CR.

Appellate Term of the Supreme Court of New York, Second Department.

Decided October 5, 2007.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Fernando M. Camacho, J.), rendered January 22, 2006. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree.

Judgment of conviction reversed on the law and accusatory instrument dismissed.

PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.

Defendant was initially charged with criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) and unlawful possession of marihuana (Penal Law § 221.05). The information alleged, inter alia, that defendant did knowingly and unlawfully possess a controlled substance and knowingly and unlawfully possessed marihuana in that he was a passenger in a vehicle from which the complainant police officer recovered a marihuana pipe containing a quantity of marihuana from the glove compartment of the vehicle, and one plastic zip lock bag containing a quantity of marihuana and nine plastic bags containing a quantity of heroin from the center console of the vehicle. The officer further alleged in the information that his conclusion that the substances recovered were heroin and marihuana was "based upon his experience as a police officer as well as training in the identification and packaging of controlled substances and marihuana." The defendant subsequently pleaded guilty to criminal possession of a controlled substance (Penal Law § 220.03).

On appeal, defendant challenges the validity of the information, in essence arguing that the failure to attach a laboratory report establishing the nature of the substances recovered renders the charge of criminal possession of a controlled substance in the seventh degree facially insufficient (see Matter of Jahron S., 79 NY2d 632 [1992]; People v Dumas, 68 NY2d 729 [1986]). The officer's statement in the information, that his conclusion as to the nature of the substances seized was based upon unspecified experience and training, was, standing alone, legally insufficient to satisfy the prima facie case requirement (see Matter of Jahron S., 79 NY2d at 639-640). Since the information failed to set forth any additional allegations that would establish the nature of the substances, the accusatory...