Thus, the question presented by this appeal is whether a charge of criminal possession is sustainable under Penal Law § 220.03 when the quantity of the drug possessed is an unusable residue. Differing results have been reached on this narrow issue (compare, e.g., People v Rencher, 141 A.D.2d 676, lv denied 72 N.Y.2d 961 [construing Penal Law § 220.39 (1)]; People v Smith, 138 Misc.2d 531; People v James, 138 Misc.2d 920, with People v Ifill, 137 Misc.2d 14; People v Shelton, 136 Misc.2d 644; People v Mason, 136 Misc.2d 968). The People urge us to adopt the view of a majority of jurisdictions that any amount of a proscribed substance is sufficient to sustain a conviction for possession (see, Note, Criminal Liability for Possession of Nonusable Amounts of Controlled Substances, 77 Colum L Rev 596, 605-612 [1977]).
This unique definition of "residue" is not found in any dictionary. Since two of the principal Criminal Court precedents holding that "residue" possession is not unlawful are based on standard dictionary definitions of "residue" (People v Ifill, 137 Misc.2d 14 [Crim Ct, N Y County 1987, Lowe, J.]; People v Mason, 136 Misc.2d 968 [Crim Ct, Bronx County 1987, Kahn, J.]), those cases and the other Criminal Court cases which rely on them lose much of their persuasive force. PRIOR APPELLATE CASES
Defendant's pro se supplemental claims are largely unreviewable and completely without merit. ( People v Gray, 86 NY2d 10; People v Smith, 138 Misc 2d 531; People v Shelton, 136 Misc 2d 644; People v I fill, 137 Misc 2d 14; People v Mason, 136 Misc 2d 968; United States v Ross, 719 F2d 615; People u Burnett, 245 AD2d 460; People v Hawkins, 11 NY3d 484; People v Diaz, 15 NY3d 764; People v Scarborough, 49 NY2d 364.) Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, SMITH, PIGOTT and JONES.
The statute contains no requirement that the People prove that the defendant sold any particular quantity of a narcotic in order to establish the elements of this crime (see, People v Jones, 63 A.D.2d 582, 583). We are not persuaded by the argument which has found acceptance in several courts (see, e.g., People v Mizell, 139 Misc.2d 286; People v Ifill, 137 Misc.2d 14; People v Shelton, 136 Misc.2d 644; People v Mason, 136 Misc.2d 968) that the sale or possession of a minute quantity of narcotics is not a crime. The terms of the statute are unambiguous and, like the courts in a majority of jurisdictions which have considered similar arguments (see, e.g., Hampton v State, 498 So.2d 384, 386 [Miss]; State v Humphreys, 54 N.J. 406, 255 A.2d 273; State v Forrester, 29 Or. App. 409, 564 P.2d 289, 291; see also, State v Vance, 61 Haw. 291, 602 P.2d 933, 943, and cases cited therein), we find that it would be completely inappropriate to, in effect, amend the statute by judicial fiat so as to require the People to prove that the quantity of narcotics in question was "usable".
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.
(1972 Interim Report of Temporary State Commn to Evaluate the Drug Laws, 1972 N.Y. Legis Doc No. 10, at 58.) Based on the foregoing, we cannot agree with the holding of People v Ifill ( 137 Misc.2d 14) or the dictionary definition of residue used therein. (See, People v Smith, 138 Misc.2d 531.)
Although none of these decisions is precisely on point, the better reasoning appears to be that possession of cocaine residue does not sufficiently establish a violation of the statutes prohibiting possession of cocaine. This was the result reached very recently by a court of coordinate jurisdiction in People v. Ifill ( 137 Misc.2d 14 [Crim Ct, N Y County, Mar. 16, 1987, Lowe, J.]). Noting that residue was no longer cocaine in usable form — one who possesses mere residue can neither use it nor sell it — and that "residue" by definition was what remained after the cocaine had been removed or used, the court dismissed the charges before it.