Opinion
No. 2015QN046036.
12-28-2015
The PEOPLE of the State of New York, v. CHUNGLIN LAM, Defendant.
Seymour James, Esq., The Legal Aid Society, (Jesse Kropf of counsel), for Defendant. Richard Brown, District Attorney, Queens County, (Ashley Morris of counsel), for the People.
Seymour James, Esq., The Legal Aid Society, (Jesse Kropf of counsel), for Defendant.
Richard Brown, District Attorney, Queens County, (Ashley Morris of counsel), for the People.
GIA MORRIS, J.
In an accusatory instrument filed on September 23, 2015, the defendant, Chunglin Lam, is charged with criminal possession of a controlled substance in the seventh degree, PL § 220.03, and double parking, VTL § 1202(1)(A). Defendant Chunglin Lam now moves for dismissal of count one of the misdemeanor information filed against him on the grounds that it is facially insufficient and therefore must be dismissed pursuant to CPL §§ 100.40, 170.30 and 170.35. More specifically, the defendant alleges that the People cannot be ready without a laboratory report in this matter, and that the court may not rely upon the New York City Police Department's training and experience of its police officers to convert the docket to a misdemeanor information because that training is too suspect to be reliable.
With respect to the defendant's contention that the People were required to file a laboratory report in order to convert the docket, the Court of Appeals has recently reaffirmed its decision in People v. Kalin, that a laboratory report is not required to convert a docket to an information. (See People v. Smalls, 2015 Slip Op 09188 (Dec 15, 2015)). In Smalls, the defendant was charged with possession of a controlled substance that was in the form of burnt residue in a glass pipe. (Smalls, 2015 Slip Op 09188 at 3). In finding the information legally sufficient without a laboratory report, the Court of Appeals expressly held:
Here, as in Kalin, the information was facially sufficient because it contained adequate allegations that the officer had the requisite training and experience to recognize the substance in defendant's possession as a controlled substance and that the officer reached his conclusion about the nature of the substance based on its appearance and placement within a favored apparatus of drug users, a glass pipe.
(Id ). The facts of the instant case are identical. Here, the defendant is charged with possession of crack/cocaine that was recovered in a pipe, which the police officer, based upon his training and experience was able to identify as cocaine. (See Misdemeanor information). When viewed in the light most favorable to the People, and in light of the extensive binding appellate authority, the misdemeanor information is facially sufficient. (See Smalls, 2015 Slip Op 09188 [People not required to serve laboratory report to convert docket to an information but instead may rely on the officer's training and experience]; People v. Kalin, 12 NY3d 225 (2009) (same); People v. Jennings, 34 Misc.3d 137(A), 946 N.Y.S.2d 68 (App Term, 2nd Dept 2011) (same); People v.. Oliver, 31 Misc.3d 130(A), 927 N.Y.S.2d 818 (App Term, 2nd Dept 2011) (same); see also People v. Jackson, 18 NY3d 738 (2012) ;; People v. Casey, 95 N.Y.2d 354, 360 (2000) (courts should review accusatory instruments in a “fair and not overly restrictive or technical reading”); People v. Allen, 92 N.Y.2d 378 (1998) (finding that as long as the factual allegations are sufficiently evidentiary in character and tend to support the charges, the complaint is facially sufficient)).
With respect to the defendant's contention that the court cannot rely upon the police officer's training and experience because there have been instances where a New York City police officer has been wrong as to the controlled substance, such contention is flawed for several reasons. First, the defendant provided the court with approximately seven criminal cases since 2013 where a defendant in Queens County was charged with possessing a controlled substance where it was later learned that no controlled substance was actually recovered. (See Defendant's motion and exhibits). These seven cases must be viewed in context of the thousands of defendants charged with misdemeanor possession of a controlled substance in the seventh degree each year in Queens County. Moreover, the defendant does not even allege that the police officer in this case is one of the police officers that was mistaken on any of the cases provided. (See Defendant's motion at 10–12). In any event, even if the defendant's allegation that the Police Officer's training was insufficient, this would not affect the facial sufficiency of an accusatory instrument, since it would be a latent defect, not a facial one. (See Matter of Edward B. 80 N.Y.2d 458, 591 N.Y.S.2d 962 (1992) ; People v. Antonovsky, 41 Misc.3d 44 (App Term 2d Dept 2013 (holding that the Court of Appeals decision in Matter of Edward B as it relates to latent defects is applicable to criminal cases); People v. George, 37 Misc.3d 1231[A], 2012 N.Y. Slip Op. 52250[U], 2012 WL 6200961 [Crim Ct, Queens Co 2012] ). If the defendant wishes to examine the police officer's training and experience, this is more properly addressed during cross-examination at trial. (See Smalls, 2015 N.Y. Slip Op 09188 ; George, 37 Misc.3d 1231[A], 2012 N.Y. Slip Op. 52250[U], 2012 WL 6200961 ).
According to the New York City Criminal Justice Agency, Queens County Criminal Court arraigned 3,412 defendants for misdemeanor possession of a controlled substance in the seventh degree in the calendar year 2014 alone. This number does not include the defendants that were charged with marihuana possession or felony drug possession.
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Accordingly, the defendant's motion to the dismiss count one of the misdemeanor information is denied in its entirety.
This opinion constitutes the decision and order of the Court.