Opinion
2008NY053335.
Decided January 20, 2009.
ADA Toni Mardirossian, New York, NY, for the People.
Timothy J. Murray, Esq., New York, NY, for the Defense.
The defendant, Daval Hobson, is charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree, under Penal Law 220.03. The defendant has filed a motion seeking dismissal for facial insufficiency; suppression of physical evidence; discovery and a bill of particulars; and disclosure and preclusion of prior bad acts. The motion is decided as follows.
FACIAL SUFFICIENCY
In order to be facially sufficient, an information must substantially conform to the formal requirements of CPL 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL 100.15 and 100.40; see People v Dumas, 68 NY2d 729; see also People v Alejandro, 70 NY2d 133).
The requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone ( People v Alejandro, 70 NY2d at 138-139, quoting 1968 Report of Temp Comm on Rev of Penal Law and Crim Code, Intro Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt ( People v Henderson, 92 NY2d 677, 680; People v Hyde, 302 AD2d 101 [1st Dept 2003]). Thus, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged" ( People v Sylla, 7 Misc 3d 8, 10 [App Term, 2d Dept 2005]). Where the factual allegations contained in an information "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" ( People v Casey, 95 NY2d 354, 360; see also People v Konieczny , 2 NY3d 569; People v Jacoby, 304 NY 33, 38-40; People v Knapp, 152 Misc 368, 370, affd 242 App Div 811; People v Allen, 92 NY2d 378, 385; People v Miles, 64 NY2d 731, 732-733; People v Shea, 68 Misc 2d 271, 272; People v Scott , 8 Misc 3d 428 [Crim Ct, NY County 2005]). Ultimately, "the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged" ( People v Barona, 19 Misc 3d 1122 [A], 1, 2008 NY Slip Op 50814[U] [Crim Ct, NY County 2008]).
The complaint alleges that on July 19, 2008, at Convent Avenue and West 130th Street, in New York County, the deponent officer recovered five decks of heroin from underneath the front passenger seat of a motor vehicle in which the defendant and two co-defendants, Cleo Warner and Jamie Turner, were seated. The deponent officer concluded that the substance was heroin based upon his professional training in identifying drugs and experience in making drug arrests, as well as the manner in which the substance was packaged. The laboratory analysis report subsequently served and filed with the complaint revealed that these five packages in fact contained cocaine.
Defendant argues that the complaint is facially insufficient because the laboratory analysis report offered in support of the complaint charging the defendant with possession of a controlled substance demonstrates that the substance recovered was cocaine, not heroin, as alleged.
A person is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses a controlled substance (PL 220.03). A controlled substance is defined in the statute as " any substance listed in schedule I, II, III, IV, or V of section thirty-three hundred six of the public health law" (PL 220.00) (emphasis added). Article 33 of the Public Health Law § 3306 contains five schedules of controlled substances which include over three hundred specific individual listings of controlled substances. Schedule I (a)(11) designates heroin as a controlled substance, and Schedule II (b) (4) designates cocaine as a controlled substance. Thus, a defendant is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses any of the controlled substances listed in Public Health Law § 3306, including either cocaine or heroin.
In this instance, the complaint alleges that the defendant possessed a controlled substance and that the particular substance was heroin. The allegation that the defendant possessed a controlled substance is based upon the first-party knowledge of the police officer, who directly observed that five decks of what appeared to be heroin were recovered from under the front passenger seat of a vehicle in which the defendant was a passenger. However, the officer's assertion that the substance is heroin is merely a conclusion, not a nonhearsay allegation, regardless of the fact that this conclusion is based upon the officer's training and experience as well as the packaging of the substance. Accordingly, the filing of a supporting deposition based upon personal knowledge and containing evidentiary facts which corroborate that the substance is a controlled substance was necessary to support this allegation and to convert the complaint to a facially sufficient information; the laboratory analysis report filed and served in this matter is such a supporting deposition. The result indicated on the laboratory analysis report that a chemical test of the substance established that it was cocaine, in contrast to the officer's conclusion, is a non-hearsay factual allegation ( see People v Crenshaw, 8 Misc 3d 1006 [A], 2005 NY Slip Op 50971[U] [City Court, Mount Vernon 2005]; People v Brightman, 150 Misc 2d 60 [Dist Ct, Nassau County 1991]; People v Blow, 127 Misc 2d 1054 [Crim Ct, Bronx County 1985]).
The fact that the laboratory analysis report indicates that the defendant possessed a controlled substance other than that alleged by the police officer does not render the complaint facially insufficient. The laboratory analysis report nonetheless demonstrates that the defendant possessed a controlled substance, to wit, cocaine. The police officer's mistaken description of the substance as heroin in the complaint, which was based upon a brief visual inspection at the time of defendant's arrest rather than an inherently reliable scientific test, does not undercut the non-hearsay factual allegation contained in the laboratory analysis report that the substance was cocaine ( see People v Blake , 6 Misc 3d 958, 959 [Crim Ct, NY County 2005]) ("The fact that the chemical analysis determined that the drugs recovered were not as described by the arresting officer is of no legal consequence. It is unsurprising that even a trained police officer may mistakenly believe [something to be] a particular substance and it turns out, upon analysis, to be a different substance").
Moreover, this sort of mistaken description, once it is corrected by subsequent scientific testing, does not compromise the defendant's ability to prepare a defense or expose him to the risk of being tried twice for the same offense. "The defendant has not been misled in any meaningful way since the corrected description of the substances was supplied to the defendant at the time of conversion and well in advance of trial. Thus, the complaint [] gives the defendant adequate notice of the charges against him and ensures against the risk of double jeopardy" ( People v Blake, 6 Misc 3d, 960-961).
Furthermore, a supporting deposition such as a laboratory analysis report is "not limited to merely restating the facts as contained in the complaint but may contain additional facts to support the charges in the accusatory instrument" ( People v Modica, 187 Misc 2d 635, 636 [Crim Ct, Richmond County 2001]). Even if there are discrepancies, "the statute clearly does not require precise factual symmetry between the accusatory instrument and the supporting deposition as the statute provides that facts in the supporting deposition may be received to supplement or support the charges contained in the accusatory instrument" ( id. at 637). Additionally, because allegations concerning the exact nature or type of a controlled substance are not nonhearsay allegations until corroborated by a laboratory report ( see People v Crenshaw, 8 Misc 3d 1006 [A], 2005 NY Slip Op 50971[U] [City Court, Mount Vernon 2005]; People v Brightman, 150 Misc 2d 60 [Dist Ct, Nassau County 1991]; People v Blow, 127 Misc 2d 1054 [Crim Ct, Bronx County 1985]), the allegations in the complaint are entitled to much less weight and credibility than any nonhearsay factual allegations set forth in laboratory reports ( see People v Modica, 187 Misc 2d, 640) ("In choosing between [a complaint and a supporting deposition], it is eminently more logical to accept the nonhearsay facts [in the supporting deposition] over the hearsay facts in the complaint").
In conclusion, the Court finds that the instant complaint is facially sufficient, inasmuch as it substantially conforms to the statutorily prescribed form and content and contains factual allegations which provide reasonable cause to believe defendant committed the offenses charged as well as nonhearsay factual allegations which, if accepted as true, establish every element of the offense charged.
OTHER MOTIONS
A Mapp/Dunaway hearing is ordered upon the defendant's motion to suppress physical evidence. Defendant's motion for discovery and a bill of particulars is granted to the extent provided in the People's Voluntary Disclosure Form. All Sandoval and Molineux issues are deferred to the trial court.
This constitutes the decision and order of the Court.