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People v. Healy

City Court of Poughkeepsie

March 3, 2017

The People of the State of New York, Plaintiff,
v.
Christian L. Healy, Defendant.

          John 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.

          Frank M. Mora, J.

         Defendant 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 follows:

         1. That 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.).

         In 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.

         A. The first count charging criminal possession of a controlled substance in the seventh degree:

         The first count of the complaint charging defendant with criminal possession of a controlled substance in the seventh degree is dismissed as facially insufficient.

         The 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."

         Here, the complaint [1] 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).

         Moreover, 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).

         Defendant's 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.

         Secondly, 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, [2] 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 ...


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