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In a 1986 case decision, the defendant was charged with the sale and possession of marijuana.

A Kings Drug Possession Lawyer said that, defendant is charged with one count of criminal possession of a controlled substance in the seventh degree, a class A misdemeanor. Pursuant to the Criminal Court complaint, a paralegal with the Kings County District Attorney’s Office states that she is informed by Police Officer that on or about April 19, 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. The Criminal Court complaint cites the police officer’s “professional training” in the “identification of crack cocaine possession,” and notes that the officer “has previously made arrests for the criminal possession of crack cocaine,” and “is familiar with the common methods of packaging crack cocaine possession.”

A Kings Criminal Lawyer said that, defendant was arraigned before this court on April 28, 2009. At that time, the People filed a supporting deposition signed by the Police Officer, which identified the contraband seized as a “glass pipe containing crack cocaine residue.”1 The People then asked that the complaint be deemed an information. 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. The defense submitted their memorandum of law on May 7, 2009; the People filed theirs on May 20, 2009.

A Kings Marijuana Possession Lawyer said that, on June 1, 2009, the People filed a statement of readiness with a certified laboratory analysis attached, which indicates that the substance recovered is, in fact, cocaine residue.

The issue in this case is 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 court in deciding the case said that, at the outset, 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 non-reviewable.” In one case, 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 court as an exception to the mootness doctrine.

This court finds that all three factors are present in the current matter. The question raised here 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, 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.

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 non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the defendant’s commission of said crime. If both these factors are present, then the information states a prima facie case, and is sufficient.

In a 1986 case decision, the defendant was charged with the sale and possession of marijuana. The lower court had dismissed the complaint as legally insufficient; however, the Appellate Term had reversed and reinstated the complaint. The Court of Appeals reversed the Appellate Term and reinstated the dismissal. The Court of Appeals held that the Criminal Court complaint failed to show the basis for the officer’s belief that the substance sold and recovered was in fact marijuana, and contained “no allegation that the police officer is an expert in identifying marihuana.” Subsequently, 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.

This leads us to the question presented—whether such an exercise of discretion is consistent with the court’s obligation to protect the constitutional due process rights of all defendants who appear before the court.

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 2004 case decision, 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.” 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 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 New York Court of Appeals has previously recognized the importance of providing procedural due process to all criminal defendants. “It is procedure that marks much of the difference between rule by law and rule by fiat.”

In the said case, the United States Supreme Court recognized the liberty interests of those held as “an immediate threat to the national security of the United States.” The Court of Appeals stated that the liberty interest in not being stigmatized as a sexually violent predator is substantial.” Is the physical freedom of an individual who may be held for an indeterminate length of time awaiting trial for a misdemeanor offense any less important than the “liberty interest” of enemy combatants and registered sex offenders?

Addressing the second prong 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 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.
Thus, the third prong 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 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.

These concerns for procedural due process, are more evident in the dissent 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. Echoing the concerns expressed in the previous case, without actually referring to the test, the dissent stated as follows: “By holding that the charging instrument here is sufficient the majority brushes aside the protections that must be afforded to misdemeanor defendants to ensure that such prosecutions do not become routinized or treated as insignificant or unimportant. No undue burden will fall upon the People if they are required to expand the description of the drugs and packaging or provide specific information as to an officer’s training and experience. Nor will the trial courts be unduly burdened by requiring that a defendant specifically waive prosecution by information.”
As noted previously, for the past 17 years, the language in 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, the concept underpins almost every decision made during that time period. Even before the case was decided, New York’s trial courts evidenced a concern for the procedural due process rights of misdemeanor defendants.

As both cases 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 narcotics by circumstantial rather than direct evidence. However, if the 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 those cases, is inconsistent with the court’s obligation to protect the constitutional right to procedural due process discussed by the United States Supreme Court.

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. In the instant matter, the People have filed a laboratory analysis dated May 18, 2009. With the filing of said report, the misdemeanor complaint dated April 20, 2009 is deemed an information, as of June 1, 2009, the date when the People filed the laboratory analysis with their statement of readiness.

Accordingly, the court held that, 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.

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