NY Penal Law 220.03, 221.10 and 221.40: Is a Laboratory Analysis or a Field Test Needed to Convert a Drug Complaint at Arraignment?

After the Court of Appeal’s recent decision in People v. Kalin, New York criminal defense attorneys and lawyers have been dealt a more difficult hand when defending their clients in matters involving drug crimes such as Criminal Possession of a Controlled Substance in the Seventh Degree (PL 220.03), Criminal Possession of Marijuana (PL 221.10) and Criminal Sale of Marijuana (PL 221.40). Specifically, Kalin changed the “policy” that in order to remove the hearsay allegations that a drug was in fact a drug, a laboratory analysis or a field test was needed to convert the complaint to an information. Moreover, courts had previously viewed the lack of a field test or laboratory analysis as a violation of the defendant’s constitutional right to due process. Although Kalin has changed the landscape of criminal practice involving narcotics and marijuana, the criminal defense attorneys at Crotty Saland PC believe that a recent decision in Brooklyn may sway the pendulum back slightly towards where it previously was in certain circumstances.

In People v. Pernell Nunn, docket number 2009KN030910, decided on June 14, 2009 in Kings County (Brooklyn) Criminal Court, Justice John H. Wilson addressed the issue of whether “the exercise of the court’s discretion 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?”

The answer and the case after the jump…
Citing the Matter of Jahron S, 79 NY2d 632 (1992), a case involving the possession of drugs, Judge Wilson observed that “‘opinion as to the content of the vials [containing alleged controlled substances] is legally insufficient because it does not by itself establish the existence of a controlled substance.’ Id at 636. (Emphasis added.) This was the case even if the officer asserted that the substance recovered was crack cocaine based upon his ‘training and experience.'” In other words, to make the complaint sufficient, a laboratory analysis or field test was needed. However, Judge Wilson also recognized that this requirement was not a rule set in stone and that the Court of Appeals left “open the possibility that a deposition based on personal knowledge and expertness may, in 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” even without the accompanying chemical analysis. Id. At 640

Judge Wilson ultimately strayed from Kalin finding that due process trumps the ruling in that case. More specifically, the court feared that failure to provide a laboratory report or field test to confirm the presence of the drug would often lead to the incarceration of people and their unjust deprivation of their liberty and rights for extended periods of time prior to having the opportunity to have a trial on their matter.

The court concluded:

“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 Courts 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, this 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.”

Founded by two former Manhattan prosecutors, Crotty Saland PC represents clients throughout the New York City region. For further information on drug crimes in New York, please follow the previous link and read the articles on constructive possession (non-physical possession) and whether the amount of drugs found must be sufficient for use or sale to establish this offense.

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