Opinion
No. 2011RI003672.
2012-02-8
PEOPLE of the State of New York v. Michael PRICE, Defendant.
Gillian Kress, The Legal Aid Society, New York City, for Defendant. Matthew W. Ross, Assistant District Attorney, Office of the Richmond County District Attorney, Daniel M. Donovan, District Attorney, for People.
Gillian Kress, The Legal Aid Society, New York City, for Defendant. Matthew W. Ross, Assistant District Attorney, Office of the Richmond County District Attorney, Daniel M. Donovan, District Attorney, for People.
MARIO F. MATTEI, J.
This case is fairly straightforward and is an example of how the evolution of case law and the advances in prescription drug regulations, for better or worse, has made a lab report as practical and useful as an eight track player.
In People v. Kalin, 12 NY3d 225, 231, [2009], a case involving the possession of heroin and marihuana, the Court of Appeals held “We have already rejected the notion that a laboratory report is necessary to set forth a prima facie case and we unanimously adhere to that holding today.”
The question presented for the Court is, based upon the holding, rationale and logic of Kalin, whether an accusatory instrument is facially sufficient, absent a lab report, where the deponent officer, trained and experienced in the recognition of drugs, alleges that he recognizes pills to be a certain controlled substance based upon the markings contained thereon.
For many years, a lab report was the most treasured, indeed the most valuable document a prosecutor could receive from the N.Y.P.D. laboratory on “170.70” and “180.80” days (CPL 170.70; CPL 180.80), for it signified that a scientific test had been completed and showed conclusively that the subject matter of the People's case was, or was not, an illegal substance. That is no longer true.
Kalin is the seminal ruling in a long line of cases which have severely diminished the need for a lab report in the prosecution of drug cases.
It has been held that a lab report is not needed to establish probable cause (People v. Paul, 133 Misc.2d 234 [1986] ) or to establish reasonable cause ( People v. Yancey, 21 Misc.3d 130[A], 2008 N.Y. Slip Op 52017[U], leave to appeal denied11 NY3d 932 [2009] ). Lab reports are not necessary for the People to establish a prima facie case (People v. Kenny, 30 N.Y.2d 154 [1972] ) and are therefore not necessary for evidence to be sufficient to support an indictment (People v. Swamp, 84 N.Y.2d 725 [1995] ); even the Matter of Jahron S., 79 N.Y.2d 632 [1992] declined to set a per se rule that lab reports were necessary to establish a prima facie case in a drug possession case, leaving open the possibility that a deposition by an expert or some person with special knowledge would suffice.
It is clear that a lab report is no longer necessary to convert a misdemeanor complaint charging a Defendant with possession of marijuana or other frequently encountered narcotics such as heroin and cocaine ( Kalin, supra. ; see also People v. Hernandez, 124 Misc.2d 376 [1984] ), to sustain the facial sufficiency of an information ( People v. Paul, supra.) or to sustain the validity of a superseding information ( People v. Williams, 8 Misc.3d 1008 [A], 2005 N.Y. Slip Op 50997[U] [Watertown City Court 2005] ). Lab reports are no longer necessary for a notice of trial readiness to be valid (People v. Fox, 2 Misc.3d 950 [2004] ) and the law is well-settled that possession of a laboratory report is not a pre-requisite for an effective declaration of readiness for trial ( see People v. Van Hoesen, 12 AD3d 5 [3d Dept, 2004], appeal denied4 NY3d 804 [2005];People v. Cain, 24 AD3d 889 [3d Dept], appeal denied7 NY3d 753 [2006];People v. Johnson, 25 Misc.3d 132[A], 2009 N.Y. Slip Op 52146[U] [App Term, 1st Dept 2009], lv to appeal denied13 NY3d 939 [2010] ). Lab reports are not necessary for evidence to be legally sufficient for purposes of a trial order of dismissal ( Van Hoesen, supra.) and indeed, the suggestion is that a lab report is not necessary to prove guilt beyond a reasonable doubt ( Van Hoesen, supra, at 9, footnote 2) and that this is the trend across the country (People v. Hurd, 185 Misc.2d 608 [Dist Ct, Nassau County, 2000] ). Finally, lab reports in and of themselves are practically useless at a trial since the admission of a lab report to prove that a substance is an illegal drug violates the Confrontation Clause of the Constitution (Melendez–Diaz v. Massachusetts, 557 U.S. 305, [2009] ).
In the instant case the Defendant is charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03). Defendant was arraigned on April 20, 2011 upon an accusatory instrument signed by Sargent Kim Murray upon the information and supporting deposition of Police Officer Rudy Anzalone.
The accusatory instrument alleged that the defendant possessed fourteen oxycodone pills. The instrument contained the somewhat now standard Dumas language which indicated that the officer believed that “the substances is in fact oxycodone based upon his informant's training and experience with regards to drugs, prior drug arrests and the labels on the pills.” The accusatory instrument was accompanied by a supporting deposition, served at arraignment, which indicated that, in sum and substance, the officer recovered the pills in a bottle from the defendant's right pocket and confirmed that he recognized the pills to be oxycodone based upon his training and experience, the packaging of the substance, previous arrests for the above named controlled substances and the markings on the substance.
On November 15, 2011, Defendant filed a motion requesting that the case be dismissed as facially insufficient pursuant to CPL §§§ 100.40, 170.35 and 170.30 because the information provided in the accusatory instrument and the supporting deposition were insufficient, absent a lab report, to sustain the charge since the officer had not actually included a description of the markings he allegedly observed.
The People have opposed the motion.
An information is facially sufficient if it meets three requirements.
First, it must substantially conform to the formal requirements of CPL § 100.15. Secondly, the factual portion of the information and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged. Lastly, the complaint must contain 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(3) and 100.40(1); see People v. Dumas, 68 N.Y.2d 729 [1986];People v. Alejandro, 70 N.Y.2d 133 [1987] ).
The defense contention that the instrument is facially insufficient because the officer neglected to include the markings referred to in the instrument in the supporting deposition is not accepted by the Court.
While 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 N.Y.2d at 138) it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt at trial (People v. Henderson, 92 N.Y.2d 677 [1999];People v. Hyde, 302 A.D.2d 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 [2nd Dept 2005]. Additionally, 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 N.Y.2d 354, 390 [2000]; see also People v. Konieczny, 2 NY3d 569 [2004];People v. Allen, 92 N.Y.2d 378 [1998] ).
Here the officer indicated that he recognized the markings on the pills as those corresponding to oxycodone, a prescription pill, without describing the markings. The defense contention that this renders the complaint facially insufficient has been roundly rejected. In People v. Kalin, supra., 232, in rejecting the notion that a complaint must contain an actual description of the controlled substance in question, the Court held that “Requiring police officers to supply a few additional words describing the appearance of the substance seized would necessitate the adoption of a formulistic recitation ... While it may be the safer practice for law enforcement to routinely use these descriptive phrases ... we would not hold that the absence of such phraseology rendered the information in this case jurisdictionally deficient.” It is noteworthy to point out that while the court in Kalin was dealing with street drugs which can change their look depending on a myriad of factors including their strength, mixture and origin, the instant case is dealing with prescription pills which are subject to a myriad of regulations concerning their content and labeling.
Title 21, Part 206 of the Code of Federal Regulations governs prescription pills. Section 206.10—entitled “Code imprint required” states that:
Unless exempted, no drug product in solid oral dosage form may be introduced or delivered for the introduction into intestate commerce unless it is clearly marked or imprinted with a code imprint that, in conjunction with the product's size, shape, and color, permits the unique identification of the of the drug product and the manufacturer of distributor of the product. Identification of the drug product requires identification of its active ingredients and its dosage strength. Inclusion of a letter or number in the imprint, while not required, is encouraged as a more effective means of the identification than a symbol or logo itself.”
The importance of these labels, making for an easy and certain identification, is obvious. The imprints, put there by the original manufacturer, help protect the lives and well being of legitimate prescription users. Indeed, individuals who use several drugs rely on these markings to ascertain which drug is which so as to avoid complications from unhealthy, if not lethal, combinations. Doctors, health care providers and pharmacists rely on these markings to make positive identifications for the health and well being of their patients. Since these pills must contain markings to insure content certainty, a far cry from the street drugs often encountered in criminal cases, there is less, not more, need for a lab report to definitively identify prescription pills than cocaine, heroin and marijuana, for which the law does not now require a lab report, when an officer alleges recognition based upon his training and experience. Thus, it is logical and reasonable to extend the holding of Kalin to prescription pills.
There are additional reasons to deny the defendant's motion to dismiss.
Additionally, even if the complaint was insufficient, dismissal is not warranted pursuant to CPL § 140.45, which states that the court must dismiss a local criminal court instrument if it is facially insufficient and “the court is satisfied that on the basis of the available facts or evidence it would be impossible (emphasis added) to draw and file an accusatory instrument which is sufficient on its face.” That is certainly not the case here.
On May 31, 2011 the People served a lab report indicating that the items recovered from the defendant were analyzed on April 25, 2011 and found to contain oxycodone. Additionally, a notice pursuant to CPL 710.30(1)(a) was served at arraignment indicating that the People intend to use a statement allegedly made by the defendant to the effect that “I got them from my sister—they are percocets.” Percocets are of course a combination of oxycodone and acetaminophen.
Under all these circumstances, the accusatory instrument was fully converted and facially sufficient at the time of filing even absent a lab report and there is no ground for dismissal.
Accordingly, Defendant's motion to dismiss is denied
The foregoing constitutes the Court's opinion, decision and order.
The clerk shall provide a copy hereof to counsel.