People v. Miller
| Citation | 57 A.D.2d 668,393 N.Y.S.2d 679 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Michael D. MILLER, Appellant. |
| Decision Date | 21 April 1977 |
| Court | New York Supreme Court Appellate Division |
James J. Murray, Ellenville, for appellant.
Francis J. Vogt, Ulster County, Dist. Atty., Kingston (E. Michael Kavanagh, Kingston, of counsel), for respondent.
Before KOREMAN, P.J., and MAIN, LARKIN, HERLIHY and MAHONEY, JJ.
Appeal from a judgment of the County Court of Ulster County, rendered May 26, 1976, upon a verdict convicting defendant of two counts of criminal sale of a controlled substance in the third degree, and sentencing him to two years to life on each count, to run concurrently.
This appeal raises for review the question of whether expert opinions are admissible where the opinions are the result of comparative tests made against a standard which itself fails to meet admissibility standards.
Since the People do not contend there is any probative proof on the record supporting the convictions other than the opinion evidence given by their two experts, an analysis of that testimony is critical to the resolution of the question posed. Both Donald J. Kirk, Jr. and Andre P. Lavigne were chemists employed by the New York State Police Scientific Laboratory at Albany. Each testified that he compared the substance, allegedly sold by defendant, to a known standard provided by the Drug Enforcement Administration in Washington, D.C. Such comparisons created the result which enabled each expert to give as his opinion that the substance he was testing was cocaine. Each expert admitted that he did not test the standard himself. Expert Kirk testified that he would be unable to testify beyond a reasonable doubt that the subject substance was cocaine without reliance upon the standard. Kirk also stated that he did not know if the State laboratory had any certification from the Drug Enforcement Adminstration as to the quality of the standard, but, in any event, he did not test the standard nor was any certification or testimonial proof of the quality of the standard substance offered. Expert Lavigne also testified that he was unaware of any federal certification of the known substance and that he did not personally test the substance, but accepted its accuracy because it had been supplied to him by his superior. In sum, neither expert testified that the known substance he relied upon for his comparative tests was tested by him, nor is there any proof in the record of any nature that established the accuracy of the standard as a reliable norm. Over defendant's objections the trial court admitted the opinions of the People's experts that the tested substance was cocaine as business entry exceptions to the hearsay rule.
We are not concerned with the admissibility of the chemists' records as business entry exceptions to the hearsay rules (CPLR 4518 subd. (a); CPL 60.10), it being conceded that if the methodology for the qualitative testing of the standard supplied by the federal authorities had been proved, or if the official certification of the Drug Enforcement Administration had been introduced into evidence (CPLR 4540), thereby establishing the requisite foundation, such records would be admissible (People v. Foster, 27 N.Y.2d 47, 51, 313 N.Y.S.2d 384, 387, 261 N.E.2d 389, 390). Looked at in another light, if the local chemists had tested the federal...
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