People v Herbas (Donavon)

[*1] People v Herbas (Donavon) 2015 NY Slip Op 50838(U) Decided on May 29, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 29, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570838/14

The People of the State of New York, Appellant,

against

Donavon Herbas, Defendant-Respondent.

The People appeal from an order of the Criminal Court of the City of New York, Bronx County (Linda Poust-Lopez, J.), dated July 12, 2013, which granted defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30.

Per Curiam.

Order (Linda Poust-Lopez, J.), dated July 12, 2013 affirmed.

Defendant's CPL 30.30 motion was properly granted. The record shows that the People failed to convert the accusatory instrument into a facially sufficient information within the period of readiness prescribed by CPL 30.30[1][b]). In order for an information, including a superseding information, to be sufficient on its face, its factual portion, together with any supporting depositions, must contain allegations that, if true, establish every element of the offense charged and the defendant's commission of such offense (CPL 100.40[1][c]). The underlying superseding information filed by the People on January 25, 2013, charging defendant with one count of criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03), did not meet this test. It merely alleged that on January 16, 2013, deponent police officer Edward Bauccio "observed Sgt. Joseph Rivera . . . recover from the defendant, in his jacket pocket, one (1) ziplock bag containing a dried, brown, leafy substance, with a pungent odor." These allegations failed to establish defendant's possession of a "controlled substance" as that term is defined (see Penal Law § 220.00; Public Health Law § 3306). The instrument not only failed to identify the particular controlled substance defendant allegedly possessed, but failed to state the officer's familiarity and training in the identification of the drug, or facts as to why the officer concluded that the substance recovered was a particular type of illegal drug (see People v Dumas, 68 NY2d 729 [1986]; cf. People v Kalin, 12 NY3d 225, 229-231 [2009]). Contrary to the People's claim, this insufficiency was not cured by the lab report filed with the superseding information. Although the lab report listed defendant's name and identified a particular "vegetative matter" tested as PCP, the report did not "connect the substance tested to the substance recovered from [defendant]" on January 16, 2013 (Matter of Jonathan T., 247 AD2d 482, 483 [1998]). Indeed, the lab report did not reference the applicable police arrest number; the time and date of recovery of the substance from defendant; and did not indicate that the evidence was received from the arresting officer.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: May 29, 2015