FACTS

On February 8, 2005, the defendant's parole officer arrived at his new residence to inspect and approve his new apartment. Finding white residue on several items on the kitchen counter and on the counter itself, the parole officer contacted two police officers to respond and field test the substance. Investigator Pignone and Detective Jerry Golden arrived at the defendant's apartment, and Inv. Pignone performed a field test which Det. Golden witnessed. The white residue tested positive for cocaine, and the defendant was placed under arrest.

I.The Accusatory Instruments Filed by the Prosecution

In this case, there are three different accusatory instruments filed with the court. The first was filed on February 14th, 2005, labeled "Information." The initial filing contains a short written accusation by Detective Perry Golden, the arresting officer, based upon the "personal knowledge and police investigation of Detective Perry Golden and the positive field test for cocaine by Inv. J. Pignone." The filing charged the defendant with one count of criminal possession of a controlled substance in the seventh degree. It also contained the arrest report, a consent to search form, and a property incident report.

The filing of section 710.30 notice was dated February 23, 2005, and included all of the preceding items and added a document written by Detective Jerry Golden (not to be confused [*2]with the arresting officer, Detective Perry Golden). In that document, Det. Jerry Golden detailed the events leading up to the arrest and the field test for narcotics which he witnessed. The People also announced readiness for trial.

The third filing, from May 2, 2005, was labeled "Prosecutor's Information" and noted that the "People remain ready for trial." No additional charges were brought against the defendant. Attached were the originally filed "Information" and the document by Det. Jerry Golden, now sworn to as a supporting deposition. Also filed on that day was a laboratory report identifying the substance found as cocaine.

In Alejandro, the defendant was charged with resisting arrest, tried before a jury and "convicted on the basis of a misdemeanor information which set forth no factual allegations establishing that the police officer was effecting an authorized arrest." 70 NY2d at 134. The court held that the failure to comply with the "prima facie case" requirement for facial sufficiency in CPL 100.40(1)(c) and 100.15(3) was a jurisdictional defect and overturned the conviction. Id. at 139.

CPL section 100.40, addressing the facial sufficiency of an information, provides:

An information, or a count thereof, is sufficient on its face when:

It substantially conforms to the requirements prescribed in section 100.15; and

The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and

Non-hearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof. [*4]

The Court of Appeals explained that "CPL section 100.40(1) establishes three conditions for the facial sufficiency of an information." Alejandro, 70 NY2d at 136-37. In focusing on section 100.40(1)(c), the court stated that "an information must, for jurisdictional purposes, contain nonhearsay factual allegations sufficient to establish a prima facie case." Id. at 138. The court explained that for an information to be facially sufficient, "every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations." Id. at 139. The absence of facial sufficiency is grounds for dismissal of the accusatory instrument; because the prosecution had failed to allege facts showing the arrest was authorized, the conviction was overturned. Id. at 135.

C.Readiness for Trial

The filing of an accusatory instrument begins the statutory speedy trial period under section 30.30. NY Crim. Proc. Law § 30.30 (McKinney 2005). Unless the defendant has waived prosecution by information, a misdemeanor complaint must be replaced by an information within that statutory period. CPL § 170.65. However, "[i]f the misdemeanor complaint is supplemented by a supporting deposition and such instruments taken together satisfy the requirements for a valid information, such misdemeanor complaint is deemed to have been converted to and to constitute a replacing information." Id. Based upon the misdemeanor charged in this case, the statutory period in question is ninety days. See CPL § 30.30 (stating that the time period is ninety days in a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony). If the People are not ready for trial within that time period, a motion to dismiss under section 170.30 must be granted. Id. A speedy trial motion pursuant to CPL § 30.30 may be made at any time before commencement of trial. People v. Ortiz, 2004 NY Slip Op 51821U, 3 (Crim. Ct., Bronx County 2004).

Although the People must make their declaration of readiness within the statutory period, courts have struggled when asked, "can the People be ready for trial within the meaning of CPL 30.30 in a drug prosecution when the allegedly illegal drugs have not been formally tested?" People v. VanHoesen, 12 AD3d 5, 6-10 (3d Dept. 2004). As noted by one court, "decisional authority is not clear on this issue." Id. Some courts have required a laboratory report to convert the misdemeanor complaint to an information; others have found a facially sufficient information based upon an adequate statement of expertise of the part of the arresting officer. People v. Burton, 133 Misc 2d 701, 702-06 (Crim. Ct., NY County 1986). This appears to still be an open question, as research has not located any applicable precedents. The recent lower court trend seems to be to allow the conversion of a misdemeanor complaint to an information even without a formal laboratory report.

The second filing by the prosecution did not change the status of the initial accusatory instrument. Although it added an unsigned document typed by one of the detectives involved in the arrest, it was not a valid supporting deposition because it was not verified as required by CPL section 100.30. Thus, the initial misdemeanor complaint was still the accusatory instrument in place.

The third filing, although labeled a "Prosecutor's Information," seems to in fact be a superseding information. A prosecutor's information must replace a previously filed information (unless filed at the direction of a grand jury); at the time of filing there was still only a misdemeanor complaint. In addition, there were no new charges filed against the defendant. However, the prosecution may file a superseding information "any time before entry of a plea of guilty to or commencement of a trial." CPL § 100.50; People v. McDonald, 179 Misc 2d 479, 481 (Crim. Ct., NY County 1999). The "Prosecutor's Information" referenced the supporting deposition of Det. Jerry Golden that was attached (properly verified, this time), and was filed along with a laboratory report identifying the drug found in the defendant's home as cocaine. This accusatory instrument was filed on May 2nd, 83 days after the commencement of the proceedings on the February 8th arrest, and less than the statutory 90 allowable days. In treating this "Prosecutor's Information" as a superseding information, the issue then becomes one over the facial sufficiency of the new accusatory instrument.

Facial Sufficiency

As noted in Alejandro, a facially sufficient information must "contain nonhearsay factual allegations sufficient to establish a prima facie case." In this case, the defendant was charged with violation section 220.03 of the Penal Law, which states that "[a] person is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses a controlled substance." Thus, the accusatory instrument must contain non-hearsay factual allegations which, if true, would show that the defendant knowing and unlawfully possessed a controlled substance.

The defense argues that the "facts alleged are insufficient to support the defendant knowingly possessed a controlled substance." Noting that the charge was for constructive possession of cocaine residue on the kitchen counter, the defense is arguing that actual possession of the residue would be necessary to support the charge. However, the case cited by the defense does not support this proposition.

In People v. Mizzel, the court stated that "[i]t is settled that knowledge may be proven circumstantially and that, generally, possession suffices to permit the inference that possessors know what they possess, especially when it is on their person." Although that passage does [*6]suggest that actual possession would be a stronger basis for imputing knowledge of possession, it does not require actual possession for that knowledge. In fact, the court ultimately held that "[w]e therefore conclude that an unusable residue of cocaine is a controlled substance within the purview of Penal Law §220.03." No distinction was drawn between actual and constructive possession in the holding.

The Penal law states that "'[p]ossess' means to have physical possession or otherwise to exercise dominion or control over tangible property." NY Penal Law § 10.00(8) (McKinney's 2005). Constructive possession thus requires showing that a defendant exercised dominion or control over the drug. Although a defendant's mere presence in an apartment where drugs were found has been held insufficient to warrant a finding of constructive possession, that was in a situation where there was no proof the defendant "resided in the apartment, frequented it on a regular basis or otherwise exercised dominion or control over the area where the drugs were found." See People v. Lopez, 112 AD2d 739, 739-41 (4th Dept. 1985) (finding that the defendant exercised dominion or control over the apartment or the area in which the contraband was found); See People v. Dawkins, 136 AD2d 726, 726-27 (2d Dept. 1988) (finding the defendant's mere presence in an apartment insufficient for constructive possession). In fact, it has been stated that "[w]here narcotics are found on premises under defendant's control, it may be inferred that the defendant had both knowledge and control of the narcotics Human experience teaches that narcotics are rarely, if ever, found unaccountably in a person's living quarters." People v. Tirado, 47 AD2d 193, 194-95 (1st Dept. 1975).

In this case, the supporting deposition of Det. Jerry Golden stated that the defendant had moved into a new residence. He was contacted by a parole officer to field test residue found on the counter and on several items in the kitchen of the apartment. In assessing the facial sufficiency of an accusatory instrument, the court must therefore view the facts in the light most favorable to the People. People v. Gibble, 2 Misc 3d 510, 512 (Crim. Ct., NY County 2003). Assuming the truth of the factual allegations, the supporting deposition of Det. Golden showed that the defendant was not merely present in the apartment. Rather, he was living there and the controlled substance was found in the kitchen, a common area of the residence. Unlike where there was a mere presence in an apartment, here the allegations in the supporting deposition show that the defendant exercised sufficient dominion and control over the apartment to support a finding of constructive possession. As a result, the elements of "knowing" and "possessed" were supported by sufficient factual allegations. In order to have a prima facie case, however, the People still have to show the presence of a controlled substance.

There appears to be no mandatory authority directly addressing the issue of whether a laboratory report is necessary to convert a misdemeanor complaint into an information in a drug possession case. This court agrees with the court in Van Hoesen who noted that nothing "compels the prosecution, in order to be ready for trial under CPL 30.30, to have in their possession a formal laboratory analysis concerning alleged drugs." 12 AD3d at 8. Similarly, the court in People v. Hurd noted that "[e]ven after trial, where conviction must be 'beyond a reasonable doubt,' 'the vast majority of courts in this nation hold [that] proof of the identity of a substance by circumstantial evidence, including lay testimony by a person sufficiently familiar with the drug in question, may be sufficient in a drug prosecution [even] when the drug is not entered into evidence or subjected to chemical testing." 185 Misc 2d 608, 612 (Dist. Ct., Nassau County 2000).

The court in VanHoesen stated that "the People had legally sufficient evidence to proceed [*7]to trial when they indicated their readiness, namely, the testimony of the arresting officer and positive field test results, and the fact that formal laboratory results were not obtained until after the expiration of the CPL 30.30 statutory period does not mandate a finding that their statement of readiness was illusory." 12 AD3d at 9. The court further noted that "[a]lthough not essential to our analysis, we also reject the notion that a formal laboratory analysis is required to establish guilt beyond a reasonable doubt." Id. In this case, the supporting deposition of Det. Jerry Golden noted the positive field test results. Although this court would have found that sufficient on its own, it was filed along with a laboratory report which made that finding unnecessary. The presence of a controlled substance thus alleged, this court holds that the People did file a facially sufficient accusatory instrument.

Hearsay

The defense also alleged that the supporting deposition of Det. Jerry Golden related to the field test he witnessed Inv. Pignone perform was hearsay, and thus the complaint was never converted to an information. The People in response have asserted that they have a right to choose what evidence to present in support of criminal allegations, and that in any event the sworn statement of one officer who witnessed a field test conducted by another was not hearsay.

Hearsay is defined as "evidence which, whether orally or in writing, seeks to establish the existence of a fact based not on the witness' own personal knowledge or observation, but on what someone else said." Gary Shaw, Canudo on Evidence Laws of New York 413 (2005). In this case, the testimony of Det. Jerry Golden is related to his own personal observations of the field test conducted by Inv. Pignone. If Det. Jerry Golden had simply been told by Inv. Pignone that the substance tested positive, then his supporting deposition would have been hearsay. Although the People could choose to provide a supporting deposition from each officer involved in field testing a substance, it hardly seems necessary when both officers are trained in performing a test that one observed (Det. Jerry Golden) and the other performed (Inv. Pignone).

Conclusion

This court finds that the People filed a valid superseding information within the statutory speedy trial period. The defense motion to dismiss is denied.

ENTER:_______________________

DATE:________________________

______________________________

HON. JAMES C. HARBERSON, JR.