[*1]Decided on October 5, 2007


PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-389 Q CR.NO. 2006-389 Q CR

Appeal from a judgment of the Criminal Court of the City of New York, Queens County(Fernando M. Camacho, J.), rendered January 22, 2006. The judgment convicted defendant, uponhis plea of guilty, of criminal possession of a controlled substance in the seventh degree.

Judgment of conviction reversed on the law and accusatory instrument dismissed.

Defendant was initially charged with criminal possession of a controlled substance in theseventh degree (Penal Law § 220.03) and unlawful possession of marihuana (Penal Law§ 221.05). The information alleged, inter alia, that defendant didknowingly and unlawfully possess a controlled substance and knowingly and unlawfullypossessed marihuana in that he was a passenger in a vehicle from which the complainant policeofficer recovered a marihuana pipe containing a quantity of marihuana from the glovecompartment of the vehicle, and one plastic zip lock bag containing a quantity of marihuana andnine plastic bags containing a quantity ofheroin from the center console of the vehicle. The officer further alleged in the informationthat his conclusion that the substances recovered were heroin and marihuana was "based upon hisexperience as a police officer as well as training in the identification and packaging of controlledsubstances and marihuana." The defendant subsequently pleaded guilty to criminal possession ofa controlled substance (Penal Law § 220.03).[*2]

On appeal, defendant challenges the validity of theinformation, in essence arguing that the failure to attach a laboratory report establishing thenature of the substances recovered renders the charge of criminal possession of a controlledsubstance in the seventh degree facially insufficient (see Matter of Jahron S., 79 NY2d632 [1992]; People v Dumas, 68 NY2d 729 [1986]). The officer's statement in theinformation, that his conclusion as to the nature of the substances seized was based uponunspecified experience and training, was, standing alone, legally insufficient to satisfy the primafacie case requirement (see Matter of Jahron S., 79 NY2d at 639-640). Since theinformation failed to set forth any additional allegations that would establish the nature of thesubstances, the accusatory instrument was jurisdictionally defective (cf. People v Swamp,84 NY2d 725 [1995]).

In view of the foregoing, the judgment of conviction is reversed and the accusatoryinstrument dismissed.

Pesce, P.J., and Rios, J., concur.

 

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by themajority. I, however, wish to note that I do not agree with certain propositions of law set forth incases cited therein which are generally contrary to my views.[*3]

I believe that the courts are unnecessarily raising formover substance at such an early stage of litigation. Proof beyond a reasonable doubt is for trial notfor an arraignment. This is especially true in the present situation where the defendant did notraise this issue below before he freely, intelligently, and voluntarily entered a guilty plea.
Decision Date: October 05, 2007