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Decided on June 23, 2005
Mount Vernon City Court

04-0478
Jeanine Ferris Pirro Westchester County District Attorney Mount Vernon branch for plaintiff. Peter Davis, Esq. Attorney for Defendant
P.O. Box 2467
Mt. Vernon, New York 10551
Adam Seiden, J.
The defendant, charged with criminal possession of a controlled substance in the seventh degree (P.L. 220.03), moves to dismiss the information for facial insufficiency on the ground that the lab report fails to demonstrate that the substance alleged to have been possessed by the defendant tested positive for heroin.
The defendant was arraigned on a felony complaint on February 5, 2004, charging him with criminal sale of a controlled substance in the fifth degree. On March 9, 2004, the charge was reduced to a misdemeanor complaint charging the defendant with criminal possession of a controlled substance in the seventh degree. The People then filed a lab report on March 9, 2004.
The accusatory instrument charges the defendant with committing the above noted offense in that he "knowingly and unlawfully held a straw containing a quantity of heroin in his left hand and handed that straw to Gordon Tarrant while at the same time Gordon Tarrant handed defendant a quantity of United States currency."
In the lab report, the piece of plastic straw, allegedly in the possession of the defendant, was given a "visual examination only". However, heroin was found present in a glassine envelope that was also tested.
After jury selection, and before commencement of his trial, the defendant moves to dismiss the complaint as facially insufficient. Specifically, the defendant contends that the People failed to file a lab report confirming the presence of heroin on the straw that he is alleged to have possessed, as charged in the misdemeanor complaint (emphasis added). He argues that while the lab report alleges the presence of heroin in a glassine envelope, the accusatory does not allege that he possessed a glassine envelope. Therefore, the defendant contends, the People have not properly converted the misdemeanor complaint to an information on the charge of criminal possession of a controlled substance in the seventh degree due to the failure to establish that the straw he allegedly held contained heroin, and accordingly, the People may not proceed to trial. [*2]
In response to the defendant's motion, the People contend that the accusatory instrument is facially sufficient and that the lab report sufficiently converts the complaint to an information. The People further argue that trial witness testimony will demonstrate that the glassine envelope that tested positive for heroin was inside the straw, alleged to have been possessed by the defendant.
A misdemeanor complaint must be sufficient on its face before it can be converted to an information upon which the People can proceed to trial (CPL 170.65 (1); People v Dumas, 68 NY2d 729 (1986)). In order for the accusatory to be facially sufficient, the accusatory must set forth evidentiary facts in its factual part and/or any supporting depositions accompanying it showing the basis for the police officer's conclusion that the substance the defendant is alleged to have possessed was a controlled substance (CPL 100.15(3); 100.40(4)(b); People v Dumas, 68 NY2d 729 )). Furthermore, the information must contain nonhearsay allegations which establish, if true, every element of the offense charged and the defendant's commission thereof (CPL 100.40 (1)(c); People v Alejandro, 70 NY2d 133 (1987)).
The lab report is the recognized means of proving the true nature of a suspected controlled substance. It is well settled that the hearsay nature of the possessory offense charge may only be dispelled by scientific testing and the filing of a lab report confirming the substance to be a controlled substance ( People v Brightman, 150 Misc 2d 60 (Dist. Ct. Nassua Co. 1991); People v Blow, 127 Misc 2d 1054 (Crim Ct. Bronx Co. 1985)). "In cases, as here, where the allegation is the possession or sale of cocaine or heroin . . . a laboratory report is an absolute necessity in order to convert the complaint to an information" (People v Brightman, supra, 64) (citing People v Burton, 133 Misc 2d, at 704)).
Here, the lab report that was submitted as a supporting deposition fails to confirm that the substance on the straw allegedly held by the defendant was heroin or any other controlled substance. The People cannot cure the insufficiency of the accusatory instrument belatedly through witness testimony, as the misdemeanor complaint must be sufficient on its face. More importantly, nowhere in the accusatory do the People allege that the defendant possessed a glassine envelope or that the straw contained a glassine envelope. A defendant should not have to proceed to trial on a drug-related offense until the substance he is alleged to have possessed is confirmed to be a controlled substance.
Accordingly, since the People failed to provide nonhearsay allegations to support every element of the crime of criminal possession of a controlled substance in the seventh degree as charged, in that they have not demonstrated by the lab report filed with the Court that the straw alleged to have been held by the defendant contained a controlled substance (CPL 100.40(1)), the defendant's motion to dismiss the accusatory instrument as facially insufficient is granted.
Dated:June 23, 2005
Mount Vernon, New York

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HON. ADAM SEIDEN

Associate City Judge of Mount Vernon

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