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People have provided that information to a court


The 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 a Police Officer that on or about April 19, 2009, at 7:32 P.M. in Nostrand Avenue, the defendant was in possession of crack cocaine.

The Criminal Court complaint cites the police officer’s professional training in the identification of crack cocaine, and notes that the officer has previously made arrests for the criminal cocaine possession, and is familiar with the common methods of packaging crack cocaine.

The defendant was arraigned before the Criminal County Court. 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. The People then asked that the complaint be deemed 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 information. The defense submitted their memorandum of law; the People filed theirs on May 20, 2009. 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.

In language pertinent to the discussion, the Court noted that the appellants urge the court to hold that a laboratory report is always necessary in order to establish a prima facie case of cocaine possession. There is no need to establish a per se rule. The court leave open the possibility that a deposition based on personal knowledge and expertness may, in now 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.

Despite this 17-year-old precedent, however, almost all criminal courts have uniformly held that a laboratory report or a field test was necessary before a court would deem a drug-related complaint to be information. For a comprehensive review of this topic, and the cases cited therein.

After discussing the defendant’s right to waive prosecution by information, the Court noted that in the absence of an express waiver, the sufficiency of the accusatory instrument must be evaluated under the standards that apply to information.

The Court of Appeals stated 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. Based upon this ruling, the Appellate Term did not believe the allegation of training and experience stated in the complaint was enough to allow the Criminal Court to deem the complaint to be information.

Under 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. 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.

Thus, in holding that the review procedures provided to defendant here do not bridge the due process gap, the court stated that, the fiscal and administrative burdens imposed by requiring notice and opportunity to be heard are not prohibitive and are not so significant as to warrant limiting the criminal defendant to the procedures the Legislature provided.

The private interest at stake here is the defendant’s physical liberty—the interest in being free from physical detention by one’s own government. All too often, in misdemeanor cases, many defendants cannot post even relatively modest amounts for bail, and will remain incarcerated for indeterminate periods of time pending trial. While there is no doubt that the Government has a substantial interest in the prosecution of drug-related offenses, in reaching our ruling, this court echoes the Supreme Court, who reaffirmed today the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law.

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.

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 criminal defendant specifically waive prosecution by information.

As noted previously, for the past 17 years, the language 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 previously decided, the concept underpins almost every decision made during that time period.

Whether a foundation for the experience and training is set forth or not, it seems that, as a matter of fundamental fairness, a defendant should not have to proceed to trial in a narcotics case unless and until a laboratory report has been filed by the People. 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.

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

All other arguments advanced by the People and the criminal defendant in their respective briefs have been reviewed and rejected by this court as being without merit.

A person who carries or does something illegal acts differently. If you were arrested for drug possession and you want to be at the winning end, make sure that you will be represented by the team of New York City Drug Possession Lawyers or the New York Cocaine Possession Attorney from Stephen Bilkis and Associates

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