In this case, two offenders moved to dismiss the misdemeanor charges of criminal possession of a weapon and criminal possession of marijuana on speedy trial grounds.
They were arraigned on the said complaints and after two days, the complainant allegedly obtained a copy of the ballistics report. The report states that the .32 caliber pistol seized from the offenders is operable. The report was deposited in the complainant’s case file, where it faded for many months.
Afterwards, in a written response to a discovery motion, the complainant invited the offenders to inspect the ballistics report in the file. It does not appear that the offenders ever availed themselves of the opportunity. The complainant then announced their readiness on the record. However, the ballistics report was not filed in the court.
The arresting officer charges the offenders with criminal possession of alleged marijuana in excess of 25 grams. A laboratory analysis then came into the complainant’s possession, according to their sworn affirmation. The report indicates that marijuana is present in the vegetable matter seized from the offenders in the amount of two ounces and thirty-two grains. The said report was not filed in the court, or its existence even alluded to.
In both cases, the offenders contend that the complainant have failed to convert the complaints to a valid information within the time constraints of the law. It is alleged that, without a scientific determination of operability, the firearms charge is jurisdictionally deficient.
Also, without a scientific analysis of the alleged marijuana, the allegation that marijuana was possessed by the offenders is incompetent evidence. Failing this, the offenders argue that a proper determination of the weight of the alleged marijuana, which bears directly on the degree of offense charged under the penal law, is a prerequisite to sufficient information. Since the alleged conversion of the complaints occurred nine months after the commencement of the action, the offenders seek dismissal of all charges due to the failure of the prosecution to afford them a speedy trial.
The complainant further argue that the firearms complaint should be considered converted by virtue of the fact that a ballistics report was open to the offenders’ inspection at all times upon request, and that the offenders were so advised.
With regards to marijuana, the complainant rely on the previous case, for the suggestion that a laboratory report is not needed to convert an information relating to marijuana, which any police officer is capable of recognizing. It is further argued that any person of normal intelligence is capable of operating a scale for determining the aggregate weight of marijuana.
Based on records, valid information serves at least three purposes. It must state the offense charged with sufficient particularity to prevent multiple prosecutions for the same offense. It also must be sufficiently specific to provide fair warning of the offense charged to enable the offenders to prepare adequately for trial. Finally, and most applicatory to the case, in order to prevent the bringing of baseless trial, all elements of the crime charged in an information must be supported by non-hearsay allegations of persons subject to the criminal penalties of perjury for false swearing. Moreover, the said non-hearsay allegations must be of an evidentiary character supporting or tending to support the charges.
Further, no valid indictment can result unless the grand jury receives competent evidence of the operability of the firearm, since possession of an inoperable one is not itself violative from the penal law.
The complainant then admitted the insufficiency of the accusatory instrument but attempted to salvage matters by arguing that a complaint can be converted to information, not by filing documents with the court, but by depositing them in the prosecutor’s file.
As a result, the court holds that an insufficient information or misdemeanor complaint was pending in the case, a period greatly in excess of the ninety day statutory requirement of the law. Therefore, the aforesaid criminal charge is dismissed summarily as to both offenders.
With regards to the marijuana charge, the complainant contends that a laboratory report is unnecessary to a valid information, since any police officer can detect the substance by mere observation. Since the complainant will be charged with nine months of non-excludable delay unless the contention is borne out, it is necessary to explore the applicable evidentiary rulings at some length.
Sources revealed that marihuana has become so commonplace in our society and its appearance and odor are so distinctive that most police officers have the requisite training and experience to be able to identify it under oath. Court further stated that laboratory tests in marihuana cases, moreover, rarely conflict with the conclusion of the police officer who has sworn out a complaint. Indeed, there is very little incentive out on the street to substitute powder for marihuana, since it is relatively cheap and the risk of prosecutions and imprisonment for possessing it is much less than for other criminal controlled substances.
The general rule regarding expert testimony is that an expert is permitted to express an opinion when the facts or inferences to be drawn from the facts depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence.
Based on records, in the city, one would anticipate that the percentage of false alarms would be closer to one in a hundred. However, the expertise of an arresting officer cannot be gauged from the face of an accusatory instrument. In addition, expertise must be established at the trial stage, by the party offering the expert. If allegations of questionable evidentiary value are to be used to support information, the court has the right to insist on compelling reasons for allowing it.
Consequently, the court holds, for the ordinary marijuana possession case, that the unsupported allegation of the arresting officer does not constitute the evidence of the existence of marijuana, but is merely probable cause. Moreover, the court also stated that there are other reasons not to allow such accusatory instruments to serve as the basis for prosecution in the court.
The court also sited previous related case where prior to the adoption of the criminal procedure law, it was held that information that was based on information and belief must identify the sources of information and grounds for belief.
The complaint, which merely speaks of alleged marijuana, fails to meet even this lesser standard. The criminal court doesn’t know how the officer identified the substance, or his experience or past success in identifying it. Whether legal evidence of the commission of the crime exists is a matter of speculation until the filing of the laboratory report.
As a result, the complainant failed to show readiness to move the case to trial. By their own admission, they did not obtain a laboratory analysis until several months after the commencement of the case. Without such report, the complainant cannot announce their readiness for trial. Certainly nothing that the offenders did prevented the complainant from completing the fundamental task totally within the period.
Consequently, the court holds that the complainant had failed to meet their burden of showing that they were ready within the legal time period. Moreover, the offender’s motion to dismiss all criminal charges on speedy trial grounds is granted instantly.