J. Ventosa, Esq., Senior Assistant Public Defender Dutchess
County Public Defender Attorney for the defendant
Margaret M. Walker, Esq., Senior Assistant District Attorney
Dutchess County District Attorney.
M. Mora, J.
has moved by notice of motion, dated November 4, 2016,
seeking various forms of relief supported by the affirmation
of John J. Ventosa, Esq., Senior Assistant Public Defender.
The People have opposed the motion by "Affirmation in
Answer to Defendant's Omnibus Motion, " dated
December 15, 2016, of Margaret M. Walker, Esq., Senior
Assistant District Attorney. Defendant has filed the reply
affirmation of John J. Ventosa, Esq., Senior Assistant Public
Defender, dated December 20, 2016, in reply to the
People's opposition and in further support of his motion.
Defendant is charged with two (2) counts of criminal
possession of a controlled substance in the seventh degree in
violation of Penal Law § 220.03, class A misdemeanors,
and failure to turn as required in violation of Vehicle and
Traffic Law § 1160(d), a violation. Having duly
deliberated on said motion, the answer to same, and the
reply, the Court hereby finds and determines the motion as
branch of defendant's motion which seeks an Order
dismissing the accusatory instruments charging defendant with
criminal possession of a controlled substance is granted in
part, and denied in part. A misdemeanor complaint is
sufficient on its face when it alleges facts of an
evidentiary character supporting or tending to support the
charges [C.P.L. § 100.15(3)] and provides reasonable
cause to believe that the defendant committed the crime
charged [C.P.L. § 100.40 (4)(b)]; see People v.
Dumas, 68 N.Y.2d 729 (1986). "[A]n accusatory
instrument must be given a reasonable, not overly technical
reading." People v. Konieczny, 2 N.Y.3d 569,
576 (2004). The use of legally sufficient circumstantial
evidence is sufficient to establish elements of an offense.
People v. Serrano, 5 Misc.3d 509 (Nassau Dist. Ct.
2004); People v. Stephens, 177 Misc.2d 819 (Kings
County Ct. 1998). To be facially sufficient an accusatory
instrument need only establish a prima facie case
and it need not establish guilt beyond a reasonable doubt.
People v. Henderson, 92 N.Y.2d 677 (1999);
People v. Moncayo, NYLJ, April 10, 1997, at 29, Col
4 (App Term, 2d & 11th Jud. Distr.).
order to be facially sufficient, the People must allege facts
to support the charge of criminal possession of a controlled
substance in the seventh degree with non-hearsay factual
allegations establishing reasonable cause to believe that the
defendant "knowingly and unlawfully possesses a
controlled substance." P.L. § 221.03.
The first count charging criminal possession of a
controlled substance in the seventh degree:
first count of the complaint charging defendant with criminal
possession of a controlled substance in the seventh degree is
dismissed as facially insufficient.
complaint reads as follows:
" On the above mentioned date and time while located in
the area of South Ave. and Montgomery St., located in the
City of Poughkeepsie, County of Dutchess, State of New York,
your defendant, Christian L. Healy, did knowingly and
unlawfully possess a controlled substance. Specifically, your
defendant was found to be in possession of one round green
pill contained in a clear plastic baggie. Said pill was later
identified through a pill identification source, drugs.com,
as Oxycodone Hydrochloride. Oxycodone Hydrochloride is
described as a narcotic analgesics, available by prescription
only. Furthermore, your defendant did state that he did
purchase said narcotic for personal use."
the complaint  relies upon drugs.com alone. There
is not a basic allegation that even establishes the
officer's training and experience, or that the officer
relied upon the packaging of the substance to determine what
drug it was. See, People v. Kalin, 12 N.Y.3d 225 (2009).
There are no factual allegations describing that it was in a
particular bottle, or there were markings on the pill, nor
does the complaint even state that the officer identified it
based upon markings. Indeed, nothing is in the complaint
detailing how the officer could identify the pill as
Oxycodone Hydrochloride with the help of drugs.com - even
taking defendant's statement into account. Specifically,
there's nothing in defendant's statement that
identifies the pill as Oxycodone Hydrochloride - a controlled
substance as defined in Penal Law § 220.00(5).
in the instant complaint, there is absolutely nothing setting
forth the officer's training or even his experience to
explain how he concluded that the substance was Oxycodone
Hydrochloride. Rather, the officer's statement is
conclusory, averring that the pill was Oxycodone
Hydrochloride based upon nothing other than drugs.com alone.
"Standing alone, a conclusory statement that the
substance seized from a defendant was a particular type of
controlled substance does not meet the reasonable cause
requirement... Rather, the factual allegations must establish
the basis of the arresting officer's belief that the
substance seized was an illegal drug...." People v.
Kalin, 12 N.Y.3d 225, 229 (2009). In the absence of setting
forth the officer's training and experience, the factual
allegations in this accusatory instrument charging defendant
with criminal possession of a controlled substance in the
seventh degree are insufficient to meet the reasonable cause
requirement, and is dismissed as facially insufficient. See,
People v. Watson, 39 Misc.3d 1217(A) (Albany 2013).
reliance on the Dixon case, however, is misplaced. People v.
Dixon, 42 Misc.3d 1228 (A)(Poughkeepsie City Court 2014). In
Dixon, defendant was an occupant in a vehicle, and charged
with criminal possession of marijuana found in the vehicle.
There is no legal presumption of possession for all occupants
of a vehicle in which marijuana is discovered by the police.
People v. Gabbidon, Jr., 40 A.D.3d 776 (2d Dept. 2007); P.L.
§ 220.25(1). Penal Law § 220.25(1) only applies to
the presence of a controlled substance in an automobile - the
precise offense this defendant has been charged with
possessing for which the legal presumption applies.
defendant's argument that the complaint is insufficient
because there was no field test is unpersuasive as well. In
People v. Kalin, 12 N.Y.3d 225 (2009) the Court of Appeals
overruled Matter of Jahron S., 79 N.Y.2d 632 (1992)(which had
held that an information requires more than the officer's
training and experience to be facially sufficient). The Court
in Kalin held that an information is facially sufficient
despite the fact that there were no allegations that a field
test was conducted, no lab report was attached,
and there was no description of the drugs or the packaging.
Kalin, supra. The Criminal Procedure Law does not require
"the recitation of a mandatory catechism in an
information that otherwise adequately identifies the
particular drug, alleges that the accused possessed that
illegal substance, states the officer's familiarity with
and training regarding the identification of the drug,
provides some information as to why the officer concluded
that the substance was a particular type of illegal drug, and
supplies sufficient notice of the ...