People v. Ranieri

• Decision Date: 06 February 1985
• Citation: 485 N.Y.S.2d 495,127 Misc.2d 132
• Parties: The PEOPLE of the State of New York v. Oresto RANIERI, Defendant.
• Court: New York City Court

Page 495

485 N.Y.S.2d 495

127 Misc.2d 132

The PEOPLE of the State of New York v. Oresto RANIERI, Defendant.

Criminal Court of the City of New York,

New York County, Part AP7.

Feb. 6, 1985.

Robert M. Morgenthau, Dist. Atty., New York City (Luke Rettler, Brooklyn, of counsel), for the People.

Caesar Cirigliano, Legal Aid Society, New York City (Melissa Saren, New York City, of counsel), for defendant.

DECISION

CAROL H. ARBER, Judge:

Defendant, Oresto Ranieri, was arrested on May 18, 1984 and charged with criminal possession of marijuana pursuant to Penal Law Section 221.10. On December 4, 1984 defendant moved to dismiss the complaint pursuant to Criminal Procedure Law Section 30.30 on the grounds that the People have failed to provide defendant with a speedy trial.

Since the offense defendant is charged with is a class B misdemeanor, the People have sixty days within which to be ready for trial (CPL Section 30.30). The question is whether the People have been ready within that time period. The defendant argues that the People have never been ready as they have not (even on the day this motion was submitted for decision) procured a laboratory report. It is defendant's position that the complaint is not converted to an information until such a report is filed. See People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548; People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331.

A number of decisions have been written as to whether the People have an obligation to produce a lab report as the basis of keeping the defendant incarcerated on a misdemeanor drug case. People v. McMillan, 125 Misc.2d 177, 479 N.Y.S.2d 449; People v. Hernandez, 124 Misc.2d 376, 476 N.Y.S.2d 459.

Criminal Procedure Law Section 100.10(4) provides that a misdemeanor complaint may be sufficient to commence criminal proceedings only where defendant has waived his right to be prosecuted by information pursuant to CPL 170.65. CPL Section 170.65 indicates that a defendant need not enter a plea to a misdemeanor complaint until and unless it has been converted to an information.

The Courts have, therefore, recognized that the misdemeanor complaint is a hearsay instrument. People v. Frank, 65 Misc.2d 488, 318 N.Y.S.2d 197. The hearsay nature of a complaint can be dispelled only by corroboration and in a drug case the only means of verifying the hearsay allegation of possession of drugs is by way of scientific testing to confirm the allegation. The laboratory report is, therefore, essential to confirm the presence of the substance charged and to overcome the hearsay nature of a misdemeanor drug charge. To hold otherwise would be giving license to the prosecution to proceed on the observation of police officers who, because they have observed drugs before, might feel assured based on observation that a particular substance is controlled. Current laboratory statistics reveal that at least 15% of all defendants charged with possessing controlled substances, in fact did not possess any. (See People v. McMillan, Id. 125 Misc.2d at p. 179, 479 N.Y.S.2d 449). Therefore, to permit an allegation of possession of marijuana or controlled substance without the support of a lab report to verify the charge is akin to allowing the People to proceed on a misdemeanor complaint without converting it into verified allegations, in violation of C.P.L. Section 170.65. Moreover, it would mean in effect that the courts are eliminating the presumption of innocence as to the 15% margin of error.

In the...