People v. White

• Decision Date: 20 December 1976
• Citation: 390 N.Y.S.2d 405,40 N.Y.2d 797,358 N.E.2d 1031
• Parties: , 358 N.E.2d 1031 The PEOPLE of the State of New York, Respondent, v. Michael Raymond WHITE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 405

390 N.Y.S.2d 405

40 N.Y.2d 797, 358 N.E.2d 1031

The PEOPLE of the State of New York, Respondent, v. Michael Raymond WHITE, Appellant.

Court of Appeals of New York.

Dec. 20, 1976.

Eric M. Alderman and Neil E. Needleman, Syracuse, for appellant.

Daniel T. Smith, Dist. Atty., Lake George, for respondent.

PER CURIAM.

With respect to the core issue on this appeal, we hold that a defendant charged with a dangerous drug offense must normally be accorded the right, with appropria safeguards and under the supervision of the court, to pretrial discovery with respect to the alleged dangerous drug, including the right to make independent tests as to weight and composition.

After a jury trial defendant was convicted of criminal possession of a dangerous drug in the fourth degree (Penal Law, former § 220.15). The contraband, found in defendant's apartment, was subjected to microscopic and chemical tests by the senior chemist for the New York State Police. Prior to trial defendant moved for an order of discovery to permit him to conduct his own scientific tests with respect to the alleged dangerous drug on which his indictment was based. His motion was denied without explanation. Prejudice to defendant was compounded when at trial, during his cross-examination of the People's chemist as to the reliability of the microscopic and chemical tests which the chemist had performed and their acceptance in the scientific community, defendant was conspicuously handicapped by his inability to refer to the results of any comparative testing.

We conclude that defendant was entitled to the pretrial discovery he sought and that it was error to deny him an appropriate opportunity to perform his own scientific tests on the alleged dangerous drug (CPL 240.20, subd. 3). Defendant's guilt or innocence hung exclusively on the nature and amount of the substance in question; he advanced no other theory of defense. For refutation of the charge against him there was no acceptable alternative to scientific testing by experts of his choice.

Under rule 16 of the Federal Rules of Criminal Procedure defendants in narcotics cases appear routinely to be permitted to have their own experts perform tests on the alleged narcot (see, e.g., United States v. Acarino, D.C., 270 F.Supp. 526, 528; United States v. Bentvena, D.C., 193 F.Supp. 485, 498; United States v. Reid, D.C., 43 F.R.D. 520; United States v. Lopez, D.C., 26 F.R.D. 174; United States v. Tirado, D.C., 25 F.R.D. 270). Other State courts have accorded similar rights of pretrial discovery (e.g., Matter of Warren v. State, 292 Ala. 71, 288 So.2d 826; James v. Commonwealth, 482 S.W.2d 92 (Ky.); State v. Migliore, 261 La. 722, 260 So.2d 682; State v. McArdle, 194 S.E.2d 174 (W.Va.); see, also, ABA Minimum Standards Relating to Discovery and Procedure Before Trial, § 2.1, subd. (a), par. (v), Commentary at pp. 68--69). In what appear to be the only reported cases in New York since the enactment of the CPL, testing by the defense was allowed or contemplated (People v. Spencer, 79 Misc.2d 72, 361 N.Y.S.2d 240 (pretrial motion for inspection and testing granted); cf. People v. Goetz, 77 Misc.2d 319, 352 N.Y.S.2d 829 (denial of pretrial discovery motion without prejudice to defendant's right at trial to apply to conduct his own scientific examination after the alleged...