Opinion
February 4, 1988
Appeal from the Criminal Court of the City of New York, Richmond County, Rose McBrien, J.
William L. Murphy, District Attorney (Yolanda L. Rudick of counsel), for appellant.
Philip L. Weinstein and Leslie Crary for respondent.
MEMORANDUM.
Order affirmed.
The information in the case at bar charged the defendant with criminal possession of a controlled substance in the seventh degree, alleging that he possessed two vials containing "cocaine, crack." The court below dismissed the information upon receipt of a laboratory report indicating that the vials contained only a "residue".
While the Legislature has not required proof of a minimum quantity for the offense in question (see, People v Schunk, NYLJ, Jan. 15, 1987, at 12, col 1 [App Term, 9th 10th Jud Dists]), it is our opinion that proof of only a nonquantifiable amount of a controlled substance is insufficient, without more to support a conviction for criminal possession of the substance (see, People v Baker, 7 A.D.2d 707; see also, People v Mason, 136 Misc.2d 968; People v Ifill, 137 Misc.2d 14; People v Shelton, 136 Misc.2d 644). While circumstantial evidence may remedy the defect and establish a prima facie case, the information fails to allege any additional factual data beyond that previously set forth. It is therefore facially insufficient. Since the failure of an information to allege a prima facie case is a nonwaivable jurisdictional defect (People v Alejandro, 70 N.Y.2d 133), the fact that defendant did not comply with provisions of CPL 170.45 requiring notice and writing, is of no moment.
KASSOFF, P.J., and PIZZUTO, J., concur; KELLAM, J., taking no part.