Years ago, when a detective or police officer signed off on a criminal court or misdemeanor complaint alleging misdemeanor drug or marijuana possession, PL 220.03 and PL 221.10 respectively, the law mandated that an Assistant District Attorney also secure a laboratory analysis or field test of the substance to proceed on that complaint so it become a legally sufficient information. In practical terms, if prosecutors failed to obtain a lab or field test, then ultimately the court would be required to dismiss the drug or marijuana possession charges against a defendant. Whether you agree that this was a necessity or not, criminal defense attorneys routinely used this law in the defense and exoneration of clients. Just as time stands still for no one, the law changes, shrinks, grows and adapts too. Simply, with some level of corroboration beyond a conclusion as to training and experience in the identification of drugs, controlled substances, narcotics and related “things” such as heroin, Ecstasy, cocaine, Xanax and marijuana, police officers can swear out complaints without a chemical test (it is ultimately needed in the event there is a trial). This became the “new” law that governed prosecutions after the Court of Appeals decision in People v. Kalin, 12 NY3d 225, 229 (2009).
The following blog entry addresses Kalin and the “training and experience” language not in the specific context of a drug arrest, but the possession of K2 in violation of Promoting Prison Contraband in the Second Degree pursuant to New York Penal Law 205.20(1). Although not dealing with the crime of Seventh Degree Criminal Possession of a Controlled Substance or Criminal Possession of Marijuana, People v. Enelus, 2016 NY Slip Op 51093 (NY City Crim Ct. 2016) has real value to cases involving these crimes because it examines the sufficiency of language contained in a criminal court complaint and information that enables or prevents a District Attorney from prosecuting a drug related crime at the initial pleading stage.
In Enelus, the defendant was charged with PL 205.20 for Promoting Prison Contraband in the Second Degree. Paraphrasing the complaint, the information read that the corrections officer observed the defendant in possession of a “white balloon containing a dried, green, leafy substance with a distinctive odor.” The information further reflected that all visitors are advised via recording that when on Rikers Island there are specific prohibited items and what those items are. Moreover, there are signs reading: POSSESSION OF CONTRABAND, WILL RESULT IN IMMEDIATE ARREST. Upon recovery of the material in the white balloon, the corrections officer stated that “based upon her training and experience, the aforementioned substance is alleged and believed to be K-2, a synthetic marijuana.”
Addressing the charge of PL 205.20, you are guilty of Second Degree Promoting Prison Contraband when you “knowingly and unlawfully introduce any contraband into a detention facility.” “Contraband” includes “any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order.” With this piece of law behind, us lets now examine the sufficiency of the information charging the defendant and how that plays into other cases involving drug possession.
Outside of the fact that the information failed because it lacked any allegations confirming the substance in question was a prohibited one and merely stated in a conlusory manner that it was contraband and contraband is not permissible, the Court dismissed the charge based on a reason applicable to Kalin. As stated clearly in Kalin, “[s]tanding alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement. Instead, the factual allegations must establish the basis of the arresting officer’s belief that the substance seized was an illegal drug.” Taking this further, the Court then turned to People v. Smalls, 26 NY3d 1064 (2015) that stands for the proposition or rule that “an information’s description of the characteristics of a substance combined with its account of an officer’s training in identifying such substances, the packaging of such substance and the presence of drug paraphernalia, can support the inference that the officer properly recognized the substance as a controlled substance” even without a laboratory analysis or field test confirm the nature of that substance.
Here, the Court dismissed the information because of the conlusory nature of the language. As stated by the Court:
“This court finds that the superseding accusatory instrument lacks sufficient evidentiary facts to support CO Bell’s conclusion about the nature of the substance found in defendant’s possession. CO Bell bases her conclusion that defendant possessed K-2 upon her unspecified training and experience and the physical characteristics of the substance. The substance recovered is described simply as a “dried, green, leafy substance with a distinctive odor”. There are a number of other substances which readily fit that physical description, such as marijuana, oregano, or catnip. Due to the dearth of evidentiary facts, it is unclear how CO Bell was able to differentiate and determine that the substance recovered was K-2 rather than another dried, green, leafy substance with a distinctive odor. The inadequacy of the factual allegations is further highlighted by the fact that the laboratory report filed in the instant case indicates that the substance recovered could not be identified.”
Any criminal lawyer in New York handling drug, marijuana, narcotic and controlled substance cases should be aware of this decision where the language of a complaint against a client is based in conclusions without specific facts. It may be that an analysis confirms the substance recovered is an illegal one that forms the basis of an Article 220 or Article 221 crime, controlled substances and marijuana respectively, but in the event there is no such lab or field test there could be a basis for dismissal.
To read more about New York drug and narcotic crimes as well as New York crimes involving the possession of marijuana, review the materials available on this blog, through the provided links and on the sites listed below. Whether you received a Desk Appearance Ticket in New York City or you are indicted by a Grand Jury on felony charges, the same law is ultimately applicable when a court reviews the evidence.
Crotty Saland PC is a New York criminal defense firm founded by two New York criminal defense attorneys who served as prosecutors in the Manhattan District Attorney’s Office.