A New York Marijuana Possession the Defendant is charged with Criminal Possession of Marijuana in the Fifth Degree, pursuant to Penal Law § 221.10(1), by an information which alleges, in pertinent part, that on September 8, 2008, at about 12:28 a..m., at Polk Avenue/Lincoln Street, Franklin Square, New York, the Defendant “was observed in possession of a clear plastic wrapper containing a greenish brown leafy substance believed to be marijuana.
The Defendant now moves for, inter alia, an order dismissing the accusatory instrument as facially insufficient, pursuant to CPL §§ 170.30, 170.35 and 210.25(1). The Defendant bases this motion upon the failure of the People to annex a Forensic Evidence Bureau report) providing a laboratory chemical analysis of the substance seized from the Defendant. The People oppose this branch of the Defendant’s motion arguing that the allegations set forth in the information adequately inform the Defendant of the charges against him, prevent the Defendant from being tried twice for the same offense, and provide reasonable cause to believe that the criminal Defendant committed the crime with which he is charged. The People further argue that the deponent’s observations are not hearsay and are based upon the officer’s years of experience and training in narcotics identification. Alternatively, the People, who concede that they are not presently in possession of an FEB, claim that “one will be provided in the near future negating the need to dismiss the instant charge.”
The information will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereo, and a factual part containing “a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges” CPL § 100.15(3) based upon either the complainant’s personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which “provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information. “Reasonable cause to believe that a person has committed an offense’ exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” CPL § 70.20
The factual allegations in the accusatory instrument and supporting depositions should be viewed in a light most favorable to the People. They must be sufficient to serve the purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. Such a showing is not the same as the burden of proof beyond a reasonable doubt required at trial.
The question presented by the Defendant’s motion, in the first instance, is whether an FEB must always be annexed to the information before it will be found facially sufficient. The answer to this question is “no.” As clearly stated by the Court of Appeals in Matter
ourt found the sworn statements of a housekeeper, that she observed a drug substance with “a peculiar odor, and the leafy material resembled pictures of which she had observed on posters”
Following this same reasoning, the court in found that “[t]he key factor to consider in Kenny, …, was not the promulgation of an across-the-board inflexible requirement of a lab report, but the necessity in this case only, lacking other reliable evidence, of turning to a lab report.” In holding that a complaint may be converted to a facially sufficient information solely upon the corroborating affidavit of the arresting officer, based upon personal knowledge, without a laboratory report, the court reasoned, “if a conviction requiring proof beyond a reasonable doubt may be sustained without a report of scientific testing evidence, certainly no one could argue that a mere pleading, even conceding the requirement that it be executed on knowledge as opposed to information and belief would require even a standard equal to that required to measure reasonable doubt.”
This decision was far from universally accepted. Of the six (6) cases found by this criminal court subsequently citing id., addressing the sufficiency of accusatory instruments, only one (1) followed its holding. In 919 (Crim.Ct. Bronx Co. 1984), fiding “the expertise of an arresting officer cannot be gauged from the face of an accusatory instrument[,]” the court held, “for the ordinarymoves by order to show cause to annul and vacate the October 14, 2009 determination by respondent New York City HOUSING AUTHORITY (NYCHA), possession case, that the unsupported allegation of the arresting officer does not constitute prima facie proof of the existence of marijuana but is merely probable cause.”, 919 The court did note, however, that it was “not promulgating an inflexible requirement of a laboratory report in all marijuana possession cases, since such charges, like narcotics or firearms charges, may sometimes be proved circumstantially.” the court held that “[t]he hearsay nature of a complaint can be dispelled only by corroboration and in a drug case the only means of verifying the hearsay allegation of possession of drugs is by way of scientific testing to confirm the allegation. The laboratory report is, therefore, essential to confirm the presence of the substance charged and to overcome the hearsay nature of a misdemeanor drug charge.”
The court did, however, go on to hold that the officer’s sworn deposition concerning his training in the identification of marijuana his observation of the color, texture and odor of the substance recovered, along with the positive results of a reliable field test, were sufficient to convert the complaint to an information. The lone case citing Hernandez, supra., and following the reasoning set forth therein,, wherein the court found a misdemeanor complaint alleging possession or sale of cocaine or heroin, absent a laboratory result, “provide[s] a reasonable basis’ for inferring the presence of a contraband, and thus satisfied the more stringent requirements of a facially sufficient information, at least for purposes of a CPL § 170.70 application.”
Turning to the information presently before the criminal court, contrary to the argument of the People, in determining the facial sufficiency of an information, the court is not “limited to the determination of whether there were sufficient factual allegations from which a reasonable juror could reasonably infer that the officers had probable cause to arrest.” “the factual part [of an information] must meet two conditions: (1) that the allegations provide reasonable cause to believe that the defendant committed the offense and (2) that non-hearsay allegations establish, if true, every element of the offense charged.” This latter condition is recognized to require that the allegations set forth in the information establish a prima facie case.
In addition to the foregoing, as demonstrated by the above historical development of this area of law, particularly in the field of marijuana related prosecutions, the prevailing view is that, in the absence of other corroborative proof, i.e. an admission by the defendant, a supporting deposition from one who is actually familiar with the particular substance in question and knows it to be matriculture, a facially sufficient information must include either a certified laboratory analysis (FEB) or a preliminary field test report demonstrated to be reliable.
Finally, although the People have indicated their desire to cure the aforesaid defects in the information, by filing an FEB, which might otherwise result in the denial of the Defendant’s motion to dismiss, the People have not made any effort to explain their failure to file an FEB in this case in nearly six (6) months and provide no information as to when the court might reasonably anticipate that an FEB might be filed, other than to advise that it will be “in the near future.”
Based upon all of the foregoing, that branch of the Defendant’s motion seeking to dismiss the information is granted; and, the information is hereby dismissed. The balance of the Defendant’s motion having been mooted by this dismissal, those prayers for relief are denied, without prejudice.