When a Mere Conclusion by the NYPD Cannot Sustain a Complaint for PL 220.03

The ease by which the police can arrest and Assistant District Attorneys can prosecute denizens of New York City (or any municipality in New York State) for drug crimes can be greatly concerning. Merely because one is a New York drug lawyer or a New York criminal defense attorney should not give one permission to be blind to the serious consequences of the drug trade and use. With that in mind, however, more than one person has been accused of a narcotics crime such as Criminal Possession of a Controlled Substance in the Seventh Degree (New York Penal Law 220.03), based on weak or wrong evidence.

For better or worse (which need not be debated here), the law formerly required that a prosecutor provide a laboratory test result or a field test from the police to move forward with a narcotics or drug criminal case beyond the initial arrest. Without this corroboration, the complaint against an accused drug user or seller would contain hearsay. Now, as a result of People v. Kalin, “the sworn allegations by the arresting officer [that the substance in question was a drug are] sufficient to satisfy the requirements of an information.” Simply, an officer, while not compliant with the “old law,” may state that based on his observations, training and experience, the substance in question is a particular contraband. Upon doing so, the complaint becomes an information without any scientific analysis of the alleged drugs. Again, while we need not debate the merits of this case and law, it is clear to even the untrained eye that an officer can be completely wrong as to the nature or presence of a controlled substance, but an accused will still be arrested and prosecuted for a crime he or she did not commit.

In People v. Gilbert Irizarry, 2012BX052381, NYLJ 1202599401178, at *1 (Crim., BX, Decided May 6, 2013), a court was confronted with whether or not an officer’s assertion based on his training or experience satisfied the Kalin rule. In Irizarry, the police arrested the defendant for “smoking a lit cigarette containing alleged Phencyclidine (PCP) which he dropped to the floor by his left foot as the arresting officer approached him.” The police concluded the substance was PCP based on his training and experience including training on the “packaging and prescribed controlled substances based upon the label on the container.”

Despite the police officer’s assertion that the substance contained PCP, the court ultimately dismissed the complaint for facial insufficiency. Yes, an officer can base his claim on training and experience, but here there was much lacking. Citing Kalin, the court noted that “standing 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.” Further, although the officer was trained in the packaging of controlled substances in arrests for NY PL 220.03, “a ‘lit cigarette’ is not ‘packaging’ which, in and of itself, would commonly indicate to anyone, trained or otherwise, the presence of Phencyclidine (PCP). There is also no allegation that said lit cigarette included any ‘label on the container’ by which the officer could ascertain the presence of the alleged controlled substance.” As a result, these bold faced, but fairly unsubstantiated conclusions on the part of the officer, the court dismissed the complaint for facial insufficiency. Although a tremendous victory, it was arguably hollow. Dismissing with one hand, the court extended the other and permitted the prosecution to supersede (redraft) the complaint with a new accusatory instrument.

To learn more about NYC arrests for PL 220.03, Desk Appearance Tickets (a common means by which first time offenders in New York are prosecuted and arrested for misdemeanor drug crimes) and other felony narcotics offenses, review the links found throughout this entry or go directly to the New York Drug and Narcotic Crimes section of New-York-Lawyers.org. Further reading on statutes, laws and legal decisions relating to drug offenses in New York can be found throughout the NewYorkCriminalLawyerBlog.Com.

Established by two former Manhattan prosecutors who served and trained under Robert Morgenthau, the New York criminal lawyers at Saland Law PC represent clients for all criminal investigations, arrests and indictments throughout the New York City region.

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