People v. Lynch

• Decision Date: 26 February 1982
• Citation: 85 A.D.2d 126,447 N.Y.S.2d 549
• Parties: PEOPLE of the State of New York, Respondent, v. James LYNCH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 549

447 N.Y.S.2d 549

85 A.D.2d 126

PEOPLE of the State of New York, Respondent, v. James LYNCH, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Feb. 26, 1982.

Richard H. Speranza, Public Defender, Lockport, for appellant (Paul Crapsi, Lockport, of counsel).

Peter L. Broderick, Dist. Atty., Lockport, for respondent (Shavasp Hanesian, Asst. Dist. Atty., Lockport, N.Y., of counsel).

Before SIMONS, J. P., and DOERR, DENMAN, BOOMER and SCHNEPP, JJ.

DOERR, Justice.

The question presented on this appeal is whether the testimony of drug users who purchased the substances from defendant is sufficient as a matter of law to prove that the substances sold were controlled substances.

Defendant was convicted of multiple counts of criminal sale of marijuana and criminal sale of a controlled substance (phencyclidine). Since the investigation which led to defendant's indictment was an ongoing one and the sales were to persons who purchased the drugs for their own use or resale, the police were not able to confiscate each substance transferred. Therefore, at trial, the People had to rely largely on the testimony of the buyers to establish that the substances purchased were in fact marijuana or phencyclidine.

As to the marijuana counts, the jury found defendant guilty of selling marijuana to four persons who testified for the People. Each of these witnesses was questioned as to his familiarity and expertise with marijuana, and each admitted to great familiarity with the substance. One testified he had used it "20 times" and was "positive" that the substance he purchased from defendant was marijuana. Two others testified that they used marijuana 50 times or more and were familiar with the effect of marijuana and the substance they purchased several times from defendant gave them the expected effect. Another testified that he had smoked marijuana "many times" before and the substance purchased from defendant was like that which he had previously smoked.

Defendant was found guilty of criminally selling phencyclidine to three persons who testified for the People. One witness testified that he used this drug five or ten times with the effect that it leaves his mind blank. He stated that while he is not an expert on PCP (phencyclidine) he knew the drug he purchased was PCP because of his experience with it. Another testified that he had learned some years earlier to recognize PCP from its taste. A third testified she had used phencyclidine seven or eight times and recognized the substance by its "nasty" taste and the effect it had, making her feel "drunk * * * drowsy". She had never obtained phencyclidine from anyone except defendant.

While the testimony concerning marijuana is clearly stronger than that establishing that phencyclidine was the substance sold to the witnesses, there is other corroborating evidence that the latter drug was sold to the witnesses. There were numerous tapes of telephone conversations between defendant and the witnesses in which he agreed to sell phencyclidine to them. While the terminology in these conversations was generally guarded, the buyers, when asked to interpret what was said, stated that they were referring to the purchase of PCP. Further, one of the witnesses testified that he regularly made bimonthly purchases from defendant for resale. Finally, pursuant to a search of defendant's home, the police seized four tinfoil packets containing a white, powdery substance. Upon chemical analysis these substances proved to be phencyclidine.

In urging that the trial court erred in permitting purchaser-users to testify that the drugs purchased were marijuana and phencyclidine, defendant places almost exclusive reliance on People v. Kenny, 30 N.Y.2d 154, 331 N.Y.S.2d 392, 282 N.E.2d 295. The quick answer to this is that in People v. Kenny (supra) the Court of Appeals did not state that a person who used marijuana is not qualified to testify that the substance used was the forbidden substance. Instead, the court stated that the State should not be " * * * willing to rest a conviction and prison sentence solely on a young person's two or three isolated experiences with what he thinks is 'pot' " (People v. Kenny, supra, p. 157, 331 N.Y.S.2d 332, 282 N.E.2d 285 ). The test, then, in situations where the illegal substance is not available for analysis, is the experience of the witness and the nature of his qualifications to identify the substance at issue. It is a matter of degree. A conviction was sustained based on the testimony of an eighteen year old narcotics user who asked defendant if he had heroin and upon being given a white powder and inhaling it obtained a "high feeling". Another witness asked defendant to get 50 capsules of heroin and upon receiving capsules of "a white substance" he injected the powder diluted with water into his veins and got "a good feeling" (People v. Pasquarello, 306 N.Y. 759, 760, 118 N.E.2d 361).

To sustain a conviction for selling drugs, it is not essential that the substance be produced in court (People v. Houston, 72 A.D.2d 369, 379, 424 N.Y.S.2d 726; People v. Jones, 63 A.D.2d 582, 583, 404 N.Y.S.2d 622). Witnesses, through whose testimony the precise identification of the drug is sought, as in the instant case, are essentially expert witnesses. Such a witness may be qualified to speak from actual experience, from observation or from study and must be shown to be qualified as an expert on the particular subject concerning which he is called upon to testify. An expert who bases his opinion upon facts of which he has personal knowledge must first testify to these facts before expressing his opinion (Richardson, Evidence § 368, pp. 343-345). These qualifying tests have been met in the instant case. While it is for the trial judge to decide whether the witness is qualified to testify as an expert, the extent of the expert's qualifications may be considered by the jury on the question of the weight to be given his testimony (Meiselman v. Crown Heights Hospital, Inc., 285 N.Y. 389, 398, 34 N.E.2d 367).

While New York appellate courts have had little occasion to treat the precise question presented by this case, courts of other jurisdictions are in accord with the views expressed herein. Thus, the testimony of teenagers who had a familiarity with marijuana were permitted to testify that when they smoked the substance purchased from a defendant they became high and were of the opinion that the substance was marijuana. "Reactions and acquired knowledge from the use of a drug such as marijuana qualify a witness to testify that what he later used was the forbidden drug (citations omitted)" (People v. Partin, 254 Cal.App.2d 89, 92, 62 Cal.Rptr. 59). A heroin addict who described how heroin is obtained and packaged, the paraphernalia used and the manner in which it is used was permitted to testify that the substance she obtained from defendant was in fact heroin. The court observed that if users demonstrate a knowledge of the narcotic as such, they are competent to testify. The weight to be given such testimony is for the jury (People v. Chrisman, 256 Cal.App.2d 425, 430-433, 64 Cal.Rptr. 733, cert. den. 395 U.S. 985, 89 S.Ct. 2135, 23 L.Ed.2d 774). A drug addict who had used heroin daily over a long period of time was permitted to testify that she knew the effect of heroin and that the substance she purchased from defendant gave her the effect of heroin. The court was of the view that an unqualified requirement that chemical analysis was needed to sustain a conviction for sale of the drug would, where the substance has been consumed, tend to nullify the act and permit much illicit traffic in drugs...