New York Criminal Lawyer Blog
This is a proceeding wherein the court is faced with the issue of whether or not its discretion as authorized in People v Kalin to deem a misdemeanor complaint charging a drug-related offense to be an information in the absence of a field test or laboratory analysis violate the defendant’s constitutional right to due process.
Pursuant to Penal Law § 220.03, the defendant is charged with one count of criminal possession of a controlled substance in the seventh degree, a class A misdemeanor. In the Criminal Court complaint, a paralegal with the Kings County District Attorney’s Office states that she is informed by Police Officer KK that on or about 19 April 2009, at 7:32 P.M. at 390 Nostrand Avenue, County of Kings, City and State of New York, defendant was in possession of crack cocaine. In the same complaint the police officer’s professional training in the identification of crack cocaine was cited.
On 28 April 2009, the defendant was arraigned. At that time, the People filed a supporting deposition signed by Officer KK, which identified the contraband seized as a glass pipe containing crack cocaine residue. The People then asked that the complaint be deemed an information, pursuant to Kalin.
The defense objected, on the grounds that in the absence of a laboratory analysis of the substance recovered, there is no reasonable or probable cause “to believe that the substance involved is a controlled substance.”
The court asked the parties to brief this issue, before determining whether or not a laboratory analysis would be necessary before the complaint could be deemed an information. Thereafter, the People filed a statement of readiness with a certified laboratory analysis attached, which indicates that the substance recovered is, in fact, cocaine residue.
First, it should be noted that the filing of the People’s statement of readiness with the attached certified laboratory analysis would normally render any further discussion of these issues moot. This case, however, fits the criteria for an exception to the mootness doctrine.
An issue is moot when it may not properly be decided by this court unless it is found to be within the exception to the doctrine which permits the courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable as held in Matter of Hearst Corp. v Clyne and Roe v Wade.
In Matter of Hearst, the Court of Appeals identified three factors which would justify an exception to the mootness doctrine: “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues.” Where these three factors are present, this issue should be addressed by a criminal court as an exception to the mootness doctrine as held in People v Brown, People v Mejia, Matter of Crystal AA and Wagner v Infante.
In the case at bar, the court finds that they are all present. The question raised is repeatedly addressed every day in the criminal courts of the City and State of New York. Further, different judges may view the same accusatory instrument and, in exercising their discretion under Kalin, may come to opposing conclusions as to whether or not said accusatory instrument establishes a prima facie case. Once the arraignment judge exercises his or her discretion, this issue will rarely, if ever, be reviewed.
As to the issue mentioned in the first paragraph, under CPL 100.15, it is well established that every accusatory instrument must contain two elements: (1) an accusatory portion designating the offense charged, and (2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. Further, under CPL 100.40, it is equally well established that a misdemeanor information is facially sufficient if the nonhearsay facts stated in said information establish each and every element of the offense charged, as well as the defendant’s commission of said sex crimes. In People v Alejandro it was held that if both these factors are present, then the information states a prima facie case, and is sufficient.
Following People v Dumas, all complaints filed in criminal court now contain what has come to be called the “Dumas language”— that is, a statement detailing the police officer’s training and experience in the identification of controlled substances.
In Matter of Jahron S., the court held that appellants urge us to hold that a laboratory report is always necessary in order to establish a prima facie case of cocaine possession. There is no need to establish a per se rule. The courts leave open the possibility that a deposition based on personal knowledge and expertness may, in now unforeseen circumstances, qualify as sufficient evidence to establish a prima facie case of drug possession because of the nature of the crime, or its elements, or the special knowledge of the affiant.
Recently, the Court of Appeals reexamined the rules established in Jahron S. In Kalin, the court noted that in the absence of an express waiver, the sufficiency of the accusatory instrument must be evaluated under the standards that apply to an information as held in People v Weinberg.
The question of whether such an exercise of discretion is consistent with the criminal court’s obligation to protect the constitutional due process rights of all defendants who appear before the court arises.
Under article I, § 6 of the New York State Constitution, “No person shall be deprived of life, liberty or property without due process of law.” “Nor shall any State deprive any person of life, liberty, or property, without due process of law.”
In Hamdi v Rumsfeld, the United States Supreme Court acknowledged that there is a tension “between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprived of a constitutional right as held in Mathews v Eldridge.
In Mathews, the Supreme Court identified three factors to be considered:
The process due in any given instance is determined by weighing `the private interest that will be affected by the official action’ against the Government’s asserted interest, `including the function involved’ and the burdens the Government would face in providing greater process. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of `the risk of an erroneous deprivation’ of the private interest if the process were reduced and the `probable value, if any, of additional or substitute procedural safeguards.
The court finds that in holding that the review procedures provided to defendant here do not bridge the due process gap, the court stated that under the third prong of the Mathews analysis, the fiscal and administrative burdens imposed by requiring notice and opportunity to be heard are not prohibitive and are not so significant as to warrant limiting criminal defendant to the procedures the Legislature provided.
This court’s review of Mathews, Hamdi and David W. leads inexorably to the conclusion that in the majority of cases, procedural due process demands that a field test or laboratory analysis be filed before a misdemeanor complaint charging a drug-related offense is deemed an information.
The private interest at stake here is the defendant’s physical liberty, the interest in being free from physical detention by one’s own government. In misdemeanor cases, often, many defendants cannot post even relatively modest amounts for bail, and will remain incarcerated for indeterminate periods of time pending trial. While there is no doubt that the Government has a substantial interest in the prosecution of drug-related offenses, in reaching the ruling, the court echoes the Supreme Court, who reaffirmed the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law.
In Hamdi, the United States Supreme Court recognized the liberty interests of those held as an immediate threat to the national security of the United States. In David W., the Court of Appeals stated that the liberty interest in not being stigmatized as a sexually violent predator is substantial.
Addressing the second prong of the Mathews test, if the criminal courts entirely dispense with the filing of a laboratory report or field test before deeming a complaint to be an information, there is a substantial risk of an erroneous deprivation of an individual’s liberty through the procedures endorsed in the Kalin decision. It is unnecessary to cite the percentage of cases where police officers, for all their training and experience, have been wrong about the nature of the substance recovered any instance of this occurrence is unacceptable if all uncertainty as to the nature of the substance recovered can be eliminated by the filing of a laboratory analysis.
The third prong of the Mathews test, which requires an assessment of the “probable value” of the “additional or substitute procedural safeguard” of having a field test or laboratory analysis available before the criminal misdemeanor complaint is deemed an information is readily apparent.
Further, there is no additional fiscal or administrative burden that the additional or substitute procedural requirement would entail.
The People already provide a certified laboratory analysis to the court in an effort to establish one or more of the elements of misdemeanor drug possession. In fact, for 17 years, in the majority of cases, the People have provided that information to a court within five days of the defendant’s arrest. There is no evidence that this practice has been unreasonable or burdensome for that lengthy period of time.
The court observes that these concerns for procedural due process, expressed so cogently in David W., are more evident in the dissent to Kalin than in the majority opinion. While the dissenting Judges also noted that a laboratory report is not always necessary to establish a prima facie case, the dissenters took issue with the majority accepting allegations they felt were “conclusory” at best.
The court notes that allowing conversion of a misdemeanor complaint in the absence of a laboratory report has been largely ignored. The reason for this can be found in the criminal court’s efforts to protect the constitutional rights of all defendants who appear before our courts. While the words “procedural due process” do not appear in the cases decided between Jahron S. and Kalin, the concept underpins almost every decision made during that time period.
Even before Jahron S. was decided, New York’s trial courts evidenced a concern for the procedural due process rights of misdemeanor defendants. As noted in People v Paul, whether a foundation for the experience and training is set forth or not, it seems that, as a matter of fundamental fairness, defendant should not have to proceed to trial in a narcotics case unless and until a laboratory report has been filed by the People.
As both Jahron S. and Kalin note, there will be cases where the complaint, as drafted, will not require the filing of a field test or laboratory analysis, just as the People will sometimes be able to establish the presence of drug narcotics by circumstantial rather than direct evidence. However, if the Kalin decision allows a lower court to use its discretion to accept a police officer’s assertions of their training and experience and the other allegations contained in the complaint, without a description of the substance seized, and declare them to be legally sufficient in all cases, then Kalin, as well as Jahron S., is inconsistent with the court’s obligation to protect the constitutional right to procedural due process discussed by the United States Supreme Court in Mathews and Hamdi, and by the New York Court of Appeals in David W.
In fact, if Kalin is used to excuse the People from producing a field test or laboratory analysis before conversion of the complaint in all cases, there is a substantial risk of our participation in an unchecked system of detention, which would carry “the potential to become a means for oppression and abuse. As stated in the dissent to Kalin, the criminal court of the State of New York must continue to ensure that such prosecutions do not become routinized or treated as insignificant or unimportant.
Thus, in an effort to insure that each defendant receives the procedural due process they are guaranteed under the New York State and Federal Constitutions, the court will continue to require the People to file a laboratory report or field test before a prima facie case is established in the majority of drug-related cases.
In the instant matter, the People have filed a laboratory analysis dated 18 May 2009. With the filing of said report, the misdemeanor complaint dated 20 April 2009 is deemed an information, as of 1 June 2009, the date when the People filed the laboratory analysis with their statement of readiness.
All other arguments advanced by the People and the defendant in their respective briefs have been reviewed and rejected by this court as being without merit.
Nassau County Arrest Lawyers, Nassau County Drug Possession Lawyers and Stephen Bilkis & Associates are experts in the fields of law mentioned in the case above. Please feel free to ask your questions at our toll free number or visit our firm nearest you. Our Nassau County Criminal Attorneys are at your service.