New York Criminal Lawyer Blog
Defendant is charged with Criminal Sale of Marijuana in the 4th Degree, Unlawful Possession of Marijuana and Criminal Possession of a Hypodermic Instrument. The complaint alleges that defendant sold a bag of marijuana for $10 to an undercover police officer, and once arrested he was found to possess four more bags of marijuana and one hypodermic instrument.
A New York Marijuana Possession lawyer said that at arraignment, in order to convert the complaint into an information, the People filed with the court a long form supporting deposition, containing a series of paragraphs with boxes to check where applicable–a format approved in a case, and in compliance with CPL ยง 100.30. Insofar as relevant, the first page of the properly executed form contains a paragraph in which the undercover officer corroborates the contents of the complaint, and adds that he gave the recovered substances to another officer, for “field testing”. The second page of the supporting deposition contains two paragraphs in which Police Officer states that he tested both the substances purchased from the defendant and the substances recovered incident to his arrest.
Upon filing, the People requested that the court declare the complaint had thereby been converted to an information. Defense counsel objected on the ground that conversion could only be accomplished by the filing with the court of a standard police laboratory report showing the presence of marijuana. The criminal court reserved decision for a formal motion addressing the issue presented: whether for a charge of possession or sale of marijuana the affirmative opinion of a police witness who has received special training in the identification of marijuana coupled with a positive test result yielded by that same witness who has performed a chemical field test on the recovered substance is sufficient to convert a complaint into an information.
An information must contain non-hearsay, factual allegations sufficient to establish a prima facie case as to each charge in the complaint. A prima facie case is that quantum of competent and admissible evidence such that, if unexplained and uncontradicted, would warrant a conviction.
In the only Court of Appeals decision addressing the issue of expert testimony as to the identity of marijuana, the alleged marijuana itself was not available for testing. The defendant’s conviction for the criminal sale of marijuana was reversed because it rested on the testimony of a witness who identified it on the basis of his two or three isolated experiences taking the drug. Since a witness who testifies to the identification of a drug is essentially an expert witness, the court rejected this witness’ qualifications as a basis for his opinion. More recent Appellate Division decisions and those of courts of other jurisdictions clearly establish that a drug user can qualify as an expert witness in the identification of a drug not produced as evidence in court.
Nonetheless, most lower courts which have considered the need for expert evidence in marijuana cases have held that a laboratory report must be filed to convert a complaint into an information. While it may seem anomalous that a drug user’s expertise can convert a complaint for criminal sale of marijuana into an information while a police officer’s may not, the anomaly is easily resolved by an examination of the facts of the previously cited cases. Where a drug user is allowed to give expert testimony concerning the identification of a drug, the basis of the expertise is the witness’ actual use of the drug in question on numerous occasions and his experience concerning its repeated, similar effects on his person.
In contrast, the common thread of those cases which have held a lab report is necessary for conversion is that the basis for the police officer’s opinion is an extremely limited examination of the recovered substance and, therefore, cannot qualify as expert opinion.
The operation of the test kit is as follows: The test kit contains three ampoules: (i) denatured alcohol, U.S.P. distilled water, vanillin, and acetaldehyde; (ii) hydrochloric acid; and (iii) cholorform. The tester introduces four or five small strands of marijuana into the pouch, reseals it, breaks the left ampoule, and agitates for one minute. This ampoule is a solvent that extracts the cannabinoids, if any, from the sample; a faint light green or tan color will appear if cannabinoids are present. The second ampoule is then broken generally producing a light flesh green which quickly gives way to a purple color; the color gradually increases in intensity. The third ampoule is then broken, and the tester taps the pouch two or three times. If cannabinoids are present, the lower level of the resultant solution will be purple.
Finally, the People point to a 1976 study by the Mid-Atlantic Regional Laboratory of the Drug Enforcement Administration, U.S. Department of Justice , which found the modified Duquenois-Levine test highly selective for criminal marijuana and concluded that if the test is properly performed the “possibility of a false positive becomes negligible.”
The efficacy of the test itself, however, is not in question; the narrow question before this court is whether the complaint has been converted into an information. While a number of courts have held that conversion requires a police laboratory report, see discussion supra, those decisions were rendered at a time before the New York City Police Department utilized the Duquenois-Levine field test. The court can find no case law nor logic that says the People are limited to one specific method to prove an element of the crime. Unquestionably, the People may prove the identity of marijuana at trial by expert testimony and scientific testing.
The court holds that, if uncontroverted and uncontradicted, the proof of a police officer acting in an undercover capacity that he purchased marijuana from the defendant for $10; and the proof of a second police officer who arrested defendant that the officer found four more bags of marijuana on the criminal defendant’s person; and the proof of a third police officer trained in the identification of marijuana that he examined the substances obtained by his colleagues and that they had the color, texture and distinctive odor of marijuana and that all the substances field tested positive for marijuana using the Duquenois-Levine Reagent System field test, constitutes that quantum of competent and admissible evidence that would warrant a conviction of defendant for possession and sale of marijuana.
Therefore, the filing with the court of a supporting deposition by a police officer trained in the identification of marijuana in which the witness avers that the substance he examined had the color, texture and distinctive odor of marijuana, coupled with a representation that the substance tested positive for marijuana upon application of the Duquenois-Levine Reagent System field test, is sufficient “supportive scientific proof” to convert this complaint alleging possession and criminal sale of marijuana into an information.
The portable nature of this “police laboratory” does not lessen its reliability. Indeed, this court sees no difference between the supporting deposition filed here and that of a police officer trained in the use of a breathalyzer whose supporting deposition lists the results of the test administered to the driver and converts the complaint’s charge of Driving While Intoxicated.
Similarly, a finding that the results of the field test are sufficient for the pleading stage, does not foreclose the possibility of other challenges at trial. Accordingly, the People are directed to provide to defendant full discovery as to all aspects of the Duquenois-Levine Reagent System field test kit.
Criminal cases should be handled by worthy and diligent lawyers like our New York Criminal attorneys here in Stephen Bilkis and Associates. We will defend you to the best of our ability and in accordance with what the law allows. For other cases, we also have New York Drug Possession lawyers, who will help you in drug cases.