The defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree in violation of Penal Law ("PL") § 220.03, a class A misdemeanor. The defendant moves for an order, inter alia, dismissing the information as improperly amended, or in the alternative dismissing the information pursuant to Criminal Procedure [*2]Law ("CPL") § 30.30. For the following reasons, the defendant's motion to dismiss is denied. >/Head<Facts and Procedural History

The defendant was arrested on April 5, 2013 and charged by a Criminal Court complaint, sworn to by Police Officer Michelle Williams. That complaint was based on the supporting deposition of a Police Officer Coffey. Specifically, the complaint alleges that on or about April 5, 2013, at approximately 8:13 p.m., at the intersection of Rockaway Boulevard and 100th Street, here in Queens County, the defendant possessed three (3) blue envelopes of heroin, which the officer recovered from the defendant's right pants pocket. The complaint also alleges that the officer knew the substance in the envelopes to be heroin based upon the officer's experience as a police officer and the officer's training in the packaging and identification of controlled substances.

Although the People may cure factual defects by amendment, a complaint or information may only be amended as to matters of form which do not change the theory of the prosecution (see People v Easton, 307 NY 336, 339 [1954]; People v Kurtz, 175 Misc 2d 980 [Crim Ct, Queens County 1998] [amendment as to number of phone calls and date of offense was proper]; People v Smith, 141 Misc 2d 578 [Crim Ct, Kings County 1988] [amendment as to name of complaining witness was proper]). On the other hand, the People may not amend an information to add facts or elements not alleged in the [*3]original complaint (see People v Caravousanos, 2 Misc 3d 7 [App Term 9th & 10th Jud. Dists. 2003] [court lacked authority to amend factual portion of information include deed and certificate of occupancy]). Moreover, an amendment can only be made where "no demonstrable prejudice [will] accrue to the defendant's case", and if such an amendment is made, the defendant is entitled to any necessary adjournments to prepare his defense (Kurtz, supra at 987). Indeed, so long as no prejudice to the defendant will ensue, where the change sought by the People "could have been effected by the preparation of a new information", there is "neither reason nor necessity for another piece of paper" (Easton, supra at 338).

Moreover, People v Hall (4 Misc 3d 60 [App Term 9th & 10th Jud. Dists. 2004] and People v Caravousanos (2 Misc 3d 7 [App Term 9th & 10th Jud. Dists. 2003]), which were relied upon by the Warren court, do not prohibit the amendment of accusatory instruments as the defendant suggests. In both Hall and Caravousanos, the People filed accusatory instruments alleging, upon the personal knowledge of the building inspectors, that the defendants were maintaining illegal apartments in violation of their certificates of occupancy. The People later sought to amend the accusatory instruments by annexing copies of the relevant deeds and certificates of occupancy to establish the elements of ownership and nonconforming use, respectively. The Appellate Term held that these amendments to the factual portions of the accusatory instruments were outside the court's amendment authority pursuant to CPL § 100.45. Neither panel addressed the permissible scope of technical amendments pursuant to CPL § 170.35 (1), because in each case, the additional documents were not offered to cure mere technicalities, but rather to establish substantive elements of the charged offenses. Accordingly, it cannot be said that the holdings of Warren, Hall or Caravousanos prohibit the amendment of complaints and [*4]informations as to clerical or typographical errors, as contemplated by the Court of Appeals (see MacFawn, 88 NY2d 859; Alejandro, 70 NY2d at 140; Easton, 307 NY 336).^[FN1]

A facially sufficient local criminal court information must, when read together with any supporting depositions, provide reasonable cause to believe the defendant committed the offense charged, supported by non-hearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL §§ 100.15 [3] & 100.40 [1]; see People v Alejandro, 70 NY2d 133; People v Dumas, 68 NY2d 729 [1986]). This requirement, unique to informations among accusatory instruments under the Criminal Procedure Law, serves a function analogous to that of the grand jury, requiring the People to lay bare their prima facie case before trial (see Alejandro, supra at 138). Reasonable cause to believe that the defendant committed the charged offense exists when "evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience [*5]that it is reasonably likely that such offense was committed and that such person committed it" (CPL § 70.10 [2]).

Though the requirement of non-hearsay allegations is a "much more demanding standard" than reasonable cause alone, it is nonetheless a much lower threshold than proof beyond a reasonable doubt (Alejandro, supra at 138 [internal quotations ommitted]; see also People v Henderson, 92 NY2d 677; People v Allen, 92 NY2d 378, 385 ["although the factual allegations in the accusatory instruments could be described as bare boned' (a)t the pleading stage, nothing more is required"]). Where the factual allegations contained in an information "give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360). Ultimately, "a reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury" (People v Dreyden, 28 Misc 3d 5, 7 [App Term 2d, 11th, and 13th Jud. Dists. 2010] [quoting People v Bello, 92 NY2d 523 (1998)]).

A facially insufficient accusatory instrument is a fatal, non-waivable jurisdictional defect, mandating dismissal of the proceeding against the defendant (see People v Casey, 95 NY2d 354 [2000]). However, where the defect is "readily curable", the proper remedy is not dismissal, but amendment or supplementation with a valid supporting deposition, provided the People have not exceeded the time allotted under CPL § 30.30 (Id. at 361; see CPL § 170.35 [1] [a]; People v Cobb, 2 Misc 3d 237 [Crim Ct, Queens County 2003] [dismissal improper where People still had time remaining to cure hearsay pleading defects]; People v Ebramha, 157 Misc 2d 217 [Crim Ct, NY County 1992]).

Pursuant to PL § 220.03, a person is guilty of Criminal Possession of a Controlled Substance in the Seventh Degree when he "knowingly and unlawfully possesses a controlled substance" defined in Public Health Law § 336, except for marihuana. A complaint sufficiently pleads a violation of this section when it:

In the instant case, the complaint alleges, and Police Officer Gridley's supporting [*6]deposition corroborates, that the defendant possessed three (3) blue envelopes in his right pants key pocket, which, based upon his training and experience, Police Officer Gridley knew to be heroin. These facts are sufficient to allege that the defendant physically possessed heroin, from which a reasonable finder of fact could infer that such possession was both knowing and unlawful.

The defendant's contention that the discrepancy between the complaint and the supporting deposition as to the alleged time of the offense renders the information facially insufficient is unpersuasive. A facially sufficient information, when read together with its supporting depositions, need only "provide reasonable cause to believe that the defendant committed the offense charged," and establish, through non-hearsay allegations, "every element of the offense charged and the defendant's commission thereof" (CPL § 100.40 [1] [b], [c]). Nor does CPL § 100.20 "require that a supporting deposition contain the same facts" as the accusatory instrument, so long as both, when read together, establish each element of the charged offense (People v Modica, 187 Misc 2d 635, 637 [Crim Ct, Richmond County 2001]). Accordingly, variations between an accusatory instrument and any supporting deposition are not fatal when the People have established a prima facie case, but are rather questions of fact and credibility to be considered at trial (see People v D'Andrea, 35 Misc 3d 1223[A] [Crim Ct Richmond County 2012] [where complaint alleged time of offense as 10:10 p.m., but supporting deposition alleged time of offense as 10:10 a.m., complaint was nonetheless facially sufficient]; People v Ochoa, 23 Misc 3d 1102(A) [Crim Ct NY County 2009] [discrepancy between complaint and supporting deposition as to location within car of recovered marihuana did not affect facial sufficiency of instrument]).

In the alternative, the defendant argues that even if the amendment was proper, the People could not have answered ready for trial in the absence of a laboratory report confirming that the substance recovered was, in fact, heroin. This contention runs afoul of the well-established principle, set forth in People v Kalin (12 NY3d 225, 231-32 [2009]) and its progeny, that a laboratory report or field test of an alleged controlled substance is not required for pleading purposes. Nevertheless, the court will engage in a full CPL § 30.30 analysis to determine if any post-readiness delay is chargeable to the People.

The defendant was arraigned on April 6, 2013. After the Criminal Court complaint was amended, the court deemed the complaint an information and the People announced ready. The matter was then adjourned to April 15, 2013. As discussed above, since the amendment of the complaint was proper, and the People did not need a laboratory report, the People announced ready at the defendant's arraignment in satisfaction of their obligations under CPL § 30.30. Therefore, this adjournment is excludable (see People v Giordano, 56 NY2d 524, 525 [1982]).

On April 15, 2013, the People consented to a Mapp/Dunaway hearing and the matter was adjourned to June 10, 2013 for Open File Discovery on consent of both parties. Since the matter was adjourned for discovery on consent, this adjournment is excludable (see CPL § 30.30 [4] [a]; People v Caussade,162 AD2d 4, 9 [2d Dept 1990]).

On June 10, 2013, the People served and filed Open File Discovery and maintained their readiness. The matter was adjourned to August 7, 2013 for hearings. Since the People satisfied their obligation under the statute, this adjournment is excludable (see Giordano, supra at 525). The defendant filed the instant motion off-calendar on July 23, 2013.

On August 7, 2013, the defendant failed to appear, a warrant was ordered, and the matter was marked off the court's calendar. On August 16, 2013, the defendant returned to court, the warrant was vacated, and the defendant's bail reinstated. This period of delay due to the defendant's absence is excludable (CPL § 30.30 [4] [c]; see also People v Mapp, 308 AD2d 463 [2d Dept 2003] [citing People v Howard, 182 Misc 2d 549 (Sup Ct NY County 1999)]). Since the defendant had filed this motion in the interim, he matter was adjourned to September 30, 2013 for decision on the instant motion. This period of delay due to the defendant's absence and pre-trial motion to dismiss is excludable (CPL § 30.30 [4] [a]; see also People v Brown, 99 NY2d 488, 492 [2003]).

On September 30, 2013, the defendant again failed to appear. A bench warrant was ordered for the defendant's arrest and the defendant's bail was forfeited. The matter was again marked off the court's calendar.

As explained above in the court's CPL § 30.30 analysis, the People have not meaningfully contributed to the delays in this case. In fact, nearly all of the delays to date have been occasioned by the defendant's repeated failure to appear, his re-arrest in Suffolk County, and pre-trial motion practice. Moreover, the defendant has been at liberty on bail or bond throughout the pendency of this case. Finally, given the strict liability nature of the possessory offense charged, it cannot be said that his ability to present defense has been meaningfully prejudiced by the delay (see e.g. People v McCorkle, 67 AD3d 1249, 1250 [3d Dept 2009] [10 month delay caused in part by consent adjournments did not violate constitutional right to speedy trial]; People v Polite, 16 Misc 3d 18, 19 [App Term 1 Dept 2007] [18 month delay caused by defendant's motion practice and court congestion did not violate constitutional right to speedy trial where defendant was at liberty throughout proceedings]). Accordingly, that branch of the defendant's motion seeking dismissal on constitutional speedy trial grounds is denied.