People v. McGriff

• Decision Date: 11 March 1988
• Citation: 526 N.Y.S.2d 712,139 Misc.2d 361
• Parties: The PEOPLE of the State of New York v. James McGRIFF, Defendant.
• Court: New York City Court

Page 712

526 N.Y.S.2d 712

139 Misc.2d 361

The PEOPLE of the State of New York v. James McGRIFF, Defendant.

Criminal Court of the City of New York New York County.

March 11, 1988.

Robert M. Morgenthau, Dist. Atty., New York County Asst. Dist. Atty. Robert Scher, for the People.

Staff Atty. Brian Kelly, Legal Aid Society, for defendant.

LAURA DRAGER, Judge:

The defendant stands accused of the crime of Criminal Sale of Marijuana in the Fourth Degree (Penal Law § 221.40). He moves to dismiss the charge pursuant to Criminal Procedure Law § 30.30 on the ground that the People failed to file a laboratory report confirming the presence of marijuana within 90 days of the commencement of the action thereby denying defendant a speedy trial. C.P.L. § 30.30(1)(b). The People, although conceding the report was not filed within 90 days, contend that a laboratory report is not required in marijuana cases. For the reasons set forth below, defendant's motion must be granted.

Defendant was arrested on July 1, 1987. He was initially charged with four crimes, including possession of cocaine, hypodermic instruments and marijuana (P.L. §§ 220.03, 220.45 and 221.10) as well as the charge of criminal sale of marijuana in issue here. A laboratory report pertaining to the other drug possession charges was filed and served on July 20, 1987. However, as a result of the granting of a Mapp motion after a suppression hearing, those other charges were dismissed on January 11, 1988. It was not until that date--194 days after the commencement of the action--that the People filed the laboratory report for the one remaining count. Defendant then filed his speedy trial motion now before the court. ^*

The issue presented here is whether for a charge of possession or sale of marijuana a laboratory report is necessary to convert a complaint into an information. A criminal action may commence with the filing of a misdemeanor complaint. C.P.L. § 100.15. However, a defendant may not be prosecuted on such instrument until it is converted into an information. C.P.L § § 170.10(4)(d). An information is a non-hearsay, factual accusatory instrument which, in its body, establishes a prima facie case for each charge. CPL 100.40(1); People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987). The People cannot answer ready for trial until an information exists. People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548 (1983); People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331 (1976).

The law is clear that in a narcotics case, the conversion of an otherwise nonhearsay complaint into an information occurs upon the filing of a laboratory report confirming the presence of the narcotic drug. People v. McMillan, 125 Misc.2d 177, 479 N.Y.S.2d 449 (1984). The decisions are less definitive on the need to file a laboratory report in marijuana cases. In an early case the Court of Appeals held that expert testimony as to the identity of marijuana is essential to sustain a conviction for sale of marijuana. People v. Kenny, 30 N.Y.2d 154, 331 N.Y.S.2d 392, 282 N.E.2d 295 (1972). In that case a person who had limited experience with marijuana was the sole witness to identify the substance sold by the defendant as marijuana. The witness described the substance physically and by its effect on him after smoking it. The court noted that where the conclusions to be drawn from the facts depend on scientific knowledge not within ordinary experience, recourse must be had to expert testimony (citing Dougherty v. Milliken, 163 N.Y. 527, 57 N.E. 757). "It seems probable that a number of people in the general community now can, or think they can, recognize marijuana, but the resulting skill is not yet so general that the State should be willing to rest a conviction and prison sentence solely on a young person's two or three isolated experiences." 30 N.Y.2d at 157. The court specifically distinguished cases involving alcohol where expert testimony was found unnecessary on the theory that "up to now the world is much more experienced with alcohol than with narcotics." 30 N.Y.2d 157, 57 N.E. 757, citing People v. Leonard, 8 N.Y.2d 60, 201 N.Y.S.2d 509, 167 N.E.2d 842 (1960).

Since the Kenny case, several lower courts have reconsidered the need for expert evidence in marijuana cases in the context of whether a laboratory report must be filed to convert a complaint into an information.

Some cases have held that a laboratory report is not required. They have found that since the 1972 Kenny decision, marijuana with its distinctive appearance and odor has become so commonplace that most police officers have the training and experience necessary to identify it under oath. Further, these courts have held that unlike narcotic drugs, given the low cost of marijuana, there is little incentive on the street to substitute a different substance for it. See People v. McMillan, 125 Misc.2d 177, 479 N.Y.S.2d 449 (1984); People v. Paul, 133 Misc.2d 234, 506 N.Y.S.2d 834 (1986).

However, the discussion on marijuana in these cases was dicta. The facts before each court concerned a controlled substance and both courts determined that a laboratory report is necessary in those cases to convert the complaint into an information. The McMillan court specifically noted that a laboratory report was essential since in approximately 15% of the cases charging possession of a controlled...