The defendant stands accused of the crime of Criminal Sale of Marijuana in the Fourth Degree. He moves to dismiss the charge pursuant to Criminal Procedure Law § 30.30 on the ground that the People failed to file a laboratory report confirming the presence of marijuana within 90 days of the commencement of the action thereby denying defendant a speedy trial. C.P.L. § 30.30(1)(b). The People, although conceding the report was not filed within 90 days, contend that a laboratory report is not required in marijuana cases.
A New York Criminal lawyer said that Defendant was arrested in July 1987. He was initially charged with four crimes, including possession of cocaine, hypodermic instruments and marijuana possession as well as the charge of criminal sale of marijuana in issue here. A laboratory report pertaining to the other drug possession charges was filed and served in July 1987. However, as a result of the granting of a motion after a suppression hearing, those other charges were dismissed. It was not until that date, 194 days after the commencement of the action–that the People filed the laboratory report for the one remaining count.
Defendant then filed his speedy trial motion now before the court.
The issue presented here is whether for a charge of possession or sale of marijuana a laboratory report is necessary to convert a complaint into an information.
A criminal action may commence with the filing of a misdemeanor complaint. However, a defendant may not be prosecuted on such instrument until it is converted into an information. An information is a non-hearsay, factual accusatory instrument which, in its body, establishes a prima facie case for each charge. The People cannot answer ready for trial until an information exists..
The law is clear that in a narcotics case, the conversion of an otherwise non-hearsay complaint into an information occurs upon the filing of a laboratory report confirming the presence of the narcotic drug. The decisions are less definitive on the need to file a laboratory report in marijuana cases. In an early case the Court of Appeals held that expert testimony as to the identity of marijuana is essential to sustain a conviction for sale of marijuana. In that case a person who had limited experience with marijuana was the sole witness to identify the substance sold by the defendant as marijuana. The witness described the substance physically and by its effect on him after smoking it.
The court noted that where the conclusions to be drawn from the facts depend on scientific knowledge not within ordinary experience, recourse must be had to expert testimony. “It seems probable that a number of people in the general community now can, or think they can, recognize marijuana, but the resulting skill is not yet so general that the State should be willing to rest a conviction and prison sentence solely on a young person’s two or three isolated experiences.” The court specifically distinguished cases involving alcohol where expert testimony was found unnecessary on the theory that “up to now the world is much more experienced with alcohol than with narcotics.”.
Some cases have held that a laboratory report is not required. They have found that since the 1972 decision, marijuana with its distinctive appearance and odor has become so commonplace that most police officers have the training and experience necessary to identify it under oath. Further, these courts have held that unlike narcotic drugs, given the low cost of marijuana, there is little incentive on the street to substitute a different substance for it.
However, the discussion on criminal marijuana in these cases was dicta. The facts before each court concerned a controlled substance and both courts determined that a laboratory report is necessary in those cases to convert the complaint into an information.
It is for this very same clinical reason that the court finds a laboratory report essential in marijuana cases. A review of statistics maintained by the New York City Police Department indicates that common assumptions notwithstanding, bogus marijuana is frequently sold in New York. Statistics from the New York City Police Department reveal that in 1987 of the total submissions to the laboratory for analysis, the following percentages for each substance resulted in a finding of no drug present: cocaine–5%; marijuana–4%; heroin–2%.
Given the minor statistical difference for negative laboratory results between narcotic substances and marijuana, there can be no distinction between the two types of cases for purposes of requiring a laboratory report to enable the prosecution to move forward on a case. A police officer simply is not in a position to provide the factual predicate required for an information by his mere observation that a substance is marijuana. As with a controlled substance, expert evidence is required.
One final argument advanced by the People is that since a sale of criminal marijuana charge can be established circumstantially, the accusatory instrument here still makes out a legally sufficient case without the filing of a laboratory report. The court in a case adopted this reasoning. However, the court there relied on a federal case where some scientific confirmation of the presence of the drug was offered to establish the selling activity in which a laboratory analysis indicated residue of a controlled substance.
More significantly, however, it is disingenuous of the People to claim to rely on circumstantial proof for purposes of finding an accusatory instrument legally sufficient when it is clear from the accusatory instrument itself that the People will seek to use direct scientific proof of the presence of marijuana at trial.
This is not to say that a sale case can never be made circumstantially without physical evidence. However, the accusatory instrument here belies this theory of criminal prosecution. The undercover officer bought what he believed to be marijuana and the accusatory instrument relied on his examination of the substance purchased to establish probable cause. Under the circumstances here, the People were obligated to file a laboratory report.
It is said that drugs won’t work in solving problems; rather it may lead one person to another problem. Here in Stephen Bilkis and Associates, we have New York Drug Possession attorneys who will help you in your cases related to drugs. This includes protecting you from illegal searches and seizures conducted by police operatives. Our New York Criminal lawyers are likewise always available to help and serve you.