People v Brown

[*1] People v Brown 2009 NY Slip Op 50279(U) [22 Misc 3d 1125(A)] Decided on February 20, 2009 District Court Of Nassau County, First District Engel, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 20, 2009
District Court of Nassau County, First District

The People of the State of New York,

against

Hanson Brown, Defendant.



2008NA024264



Hon. Kathleen Rice, Nassau County District Attorney

Attorneys for defendant: Jaghab, Jaghab & Jaghab, P.C. (Mathew Fleischer, Esq.)

Andrew M. Engel, J.

The Defendant is charged with Criminal Possession of Marijuana in the Fifth Degree, pursuant to Penal Law § 221.10(1), by an information which alleges, in pertinent part, that on September 8, 2008, at about 12:28 a..m., at Polk Avenue/Lincoln Street, Franklin Square, New York, the Defendant "was observed ... in possession of a clear plastic wrapper containing a greenish brown leafy substance believed to be marijuana."

The Defendant now moves for, inter alia, an order dismissing the accusatory instrument as facially insufficient, pursuant to CPL §§ 170.30, 170.35 and 210.25(1). The Defendant bases this motion upon the failure of the People to annex a Forensic Evidence Bureau report ("FEB") providing a laboratory chemical analysis of the substance seized from the Defendant.

The People oppose this branch of the Defendant's motion arguing that the allegations set forth in the information adequately inform the Defendant of the charges against him, prevent the Defendant from being tried twice for the same offense, and provide reasonable cause to believe that the Defendant committed the crime with which he is charged. The People further argue that the deponent's observations are not hearsay and are based upon the officer's years of experience and training in narcotics identification. Alternatively, the People, who concede that they are not presently in possession of an FEB, claim that "one will be provided in the near future negating the need to dismiss the instant charge." (Smit Affirmation 1/29/09, ¶ 14)

The information will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, it contains an accusatory part, designating the offense charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 NY2d 927, 425 NYS2d 56 (1979), and a factual part containing "a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]" CPL § 100.15(3) based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which "provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information;" People v. Alejandro, [*2]70 NY2d 133, 517 NYS2d 927 (1987); CPL § 100.40(4)(b) and, if true, establish every element of such offense, People v. Moore, 5 NY3d 725, 800 NYS2d 49 (2005); People v. Thomas, 4 NY3d 143, 791 NYS2d 68 (2005) " Reasonable cause to believe that a person has committed an 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 that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.20

The factual allegations in the accusatory instrument and supporting depositions should be viewed in a light most favorable to the People, People v. Martinez, 16 Misc 3d 1111(A), 847 NYS2d 898 (Table), (Dist.Ct. Nassau Co. 2007); People v. Delmonaco, 16 Misc 3d 526, 837 NYS2d 869 (Dist.Ct. Nassau Co. 2007); People v. Mendelson, 15 Misc 3d 925, 834 NYS2d 445 (Dist.Ct. Nassau Co. 2007) and should not be given an overly restrictive or technical reading, People v. Casey, 95 NY2d 354, 717 NYS2d 88 (2000); People v. Baumann & Sons Buses, Inc., 6 NY3d 404, 813 NYS2d 27 (2006). They must be sufficient to serve the purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. People v. McDermott, 69 NY2d 889, 515 NYS2d 225 (1987); People v. McGuire, 5 NY2d 523, 186 NYS2d 250 (1959) Such a showing is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Swamp, 84 NY2d 725, 622 NYS2d 472 (1995); People v. Porter, 75 AD2d 901, 428 NYS2d 63 (2nd Dept. 1980)

The question presented by the Defendant's motion, in the first instance, is whether an FEB must always be annexed to the information before it will be found facially sufficient. The answer to this question is "no." As clearly stated by the Court of Appeals in Matter of Jahron S., 79 NY2d 632, 640, 584 NYS2d 748, 753 (1992), "Appellants urge us to hold that a laboratory report is always necessary in order to establish a prima facie case of cocaine possession. There is no need to establish a per se rule." This answer, however, begs the question, whether anything more than a sworn statement of a police officer concerning his or her personal observations of what is believed to be a marijuana is sufficient to establish the facial sufficiency of an information. As the following historical discussion reveals, this answer is less clear.

In People v. Frank, 65 Misc 2d 488, 318 NYS2d 197, 198 (Co. Ct. Dutchess Co. 1971), upon granting a motion to dismiss an indictment [FN1] as predicated on legally insufficient evidence, the court held: "Indictment requires the introduction into evidence of a legally acceptable chemical analysis of the corpus of the crime (Code Crim. Proc. s 248), as well as the receipt in evidence of the corpus itself, in order to establish a chain of evidence linking the defendant to the crime."

The following year, the Court of Appeals weighed in on this issue, in People v. Kenny, 30 NY2d 154, 331 NYS2d 392 (1972), wherein the defendant was convicted of selling marijuana to a friend, based solely upon the friend's testimony concerning the substance sold to [*3]him by the defendant. No chemical test or expert analysis of the substance was performed. The court noted that while a number of people think they can recognize marijuana, this "skill" was not yet so general as to provide the basis for a conviction. In setting aside the judgment of conviction, the court recognized that the experiences or opinions of lay persons "do not afford a reliable basis to establish the technical identity of the drug which is the essence of the crime charged." Kenny, id. at 156, 331 NYS2d 392, 394 (1972) At the very least, expert testimony would be required.

In People v. Lynch, 85 AD2d 126, 447 NYS2d 549, 550 (4th Dept. 1982) the question presented was "whether the testimony of drug users who purchased the substances from defendant is sufficient as a matter of law to prove that the substances sold were controlled substances." In answering this question in the affirmative, the court distinguished Kenny, supra ., noting that the Court of Appeals merely provided that "the State should not be * * * willing to rest a conviction and prison sentence solely on a young person's two or three isolated experiences with what he thinks is pot' (People v. Kenny, supra , p. 157, 331 NYS2d 332, 282 NE2d 285 [emphasis supplied] )[,]" People v. Lynch, id. at 128, 447 NYS2d 549, 551, but did not preclude the use of expert testimony based upon a witness' actual experience, observations and study. Noting that "it is a matter of degree[,]" People v. Lynch, id. at 128, 447 NYS2d 549, 551 the court held that, in situations where the subject substance is not available for laboratory analysis, the test to be applied "is the experience of the witness and the nature of his qualifications to identify the substance at issue." People v. Lynch, id. at 128, 447 NYS2d 549, 551

Similarly, again relying on Kenny, supra ., the court in People v. Talutis, 39 AD2d 815, 332 NYS2d 509 (3rd Dept. 1972) found the sworn statements of a housekeeper, that she observed a substance with "a peculiar odor, and the leafy material resembled pictures of marijuana which she had observed on posters" People v. Talutis, id. at 815, 332 NYS2d 509 established "sufficient knowledge to identify marijuana for the purpose of establishing probable cause for the issuance of a search warrant (citation omitted)." People v. Talutis, id. at 815, 332 NYS2d 509, 511

Following this same reasoning, the court in People v. Hernandez, 124 Misc 2d 376, 380, 476 NYS2d 459, 461 (Crim. Ct. NY Co. 1984) found that "[t]he key factor to consider in Kenny, ... , was not the promulgation of an across-the-board inflexible requirement of a lab report, but the necessity in this case only, lacking other reliable evidence, of turning to a lab report." In holding that a complaint may be converted to a facially sufficient information solely upon the corroborating affidavit of the arresting officer, based upon personal knowledge, without a laboratory report, the court reasoned, "if a conviction requiring proof beyond a reasonable doubt may be sustained without a report of scientific testing evidence, certainly no one could argue that a mere pleading, even conceding the requirement that it be executed on knowledge as opposed to information and belief would require even a standard equal to that required to measure reasonable doubt." People v. Hernandez, id. at 377, 476 NYS2d 459, 459

This decision in Hernandez, id. was far from universally accepted. Of the six (6) cases found by this court subsequently citing Hernandez, id., addressing the sufficiency of accusatory instruments, only one (1) followed its holding. In People v. Harvin, 126 Misc 2d 775, 781, 483 NYS2d 913, 919 (Crim.Ct. Bronx Co. 1984), finding "the expertise of an arresting officer cannot be gauged from the face of an accusatory instrument[,]" the court held, "for the ordinary marijuana possession case, that the unsupported allegation of the arresting officer does [*4]not constitute prima facie proof of the existence of marijuana, but is merely probable cause." People v. Harvin, id. at 781, 483 NYS2d 913, 919 The court did note, however, that it was "not promulgating an inflexible requirement of a laboratory report in all marijuana possession cases, since such charges, like narcotics or firearms charges, may sometimes be proved circumstantially." People v. Harvin, id. at 781, fn 4, 483 NYS2d 913, 919 In People v. Ranieri, 127 Misc 2d 132, 485 NYS2d 495 (Crim.Ct. N.Y.Co.,1985) the court held that "[t]he hearsay nature of a complaint can be dispelled only by corroboration and in a drug case the only means of verifying the hearsay allegation of possession of drugs is by way of scientific testing to confirm the allegation. The laboratory report is, therefore, essential to confirm the presence of the substance charged and to overcome the hearsay nature of a misdemeanor drug charge." In People v. Burton, 133 Misc 2d 701, 507 NYS2d 809 (Crim.Ct. NY Co. 1986) the court distinguish marijuana, with its distinctive odor, from various controlled substances, i.e. cocaine and announced that "the rule, at least in non-marijuana narcotic cases, should be that a laboratory report is required." Burton, id. at 705, People v. Burton, 133 Misc 2d 701, 507 NYS2d 809, 812 In People v. McGriff, 139 Misc 2d 361, 526 NYS2d 712 (Crim.Ct. NY Co. 1988), in dismissing the complaint on speedy trial grounds, due to the People's failure to timely submit a laboratory report confirming the substance in question to be marijuana, the court recognized that "[t]he law is clear that in a narcotics case, the conversion of an otherwise nonhearsay complaint into an information occurs upon the filing of a laboratory report confirming the presence of the narcotic drug." People v. McGriff, id. at 363, 526 NYS2d 712, 714 The court also noted that "[t]his is not to say that a sale case can never be made circumstantially without physical evidence." People v. McGriff, id. at 365, 526 NYS2d 712, 715 In People v. Escalera, 143 Misc 2d 779, 782, 541 NYS2d 707, 709 (Crim.Ct. NY Co. 1989) the court pointed out that:While it may seem anomalous that a drug user's expertise can convert a complaint for sale of marijuana into an information while a police officer's may not, the anomaly is easily resolved by an examination of the facts of the previously cited cases. Where a drug user is allowed to give expert testimony concerning the identification of a drug, the basis of the expertise is the witness' actual use of the drug in question on numerous occasions and his experience concerning its repeated, similar effects on his person. ... In contrast, the common thread of those cases which have held a lab report is necessary for conversion is that the basis for the police officer's opinion is an extremely limited examination of the recovered substance and, therefore, cannot qualify as expert opinion.

The court did, however, go on to hold that the officer's sworn deposition concerning his training in the identification of marijuana, his observation of the color, texture and odor of the substance recovered, along with the positive results of a reliable field test, were sufficient to convert the complaint to an information. The lone case citing Hernandez, supra ., and following the reasoning set forth therein, is People v. Hurd, 185 Misc 2d 608, 612, 714 NYS2d 404, 408 (Dist.Ct. Nassau Co. 2000), wherein the court found a misdemeanor complaint alleging possession or sale of cocaine or heroin, absent a laboratory result, "provide[s] a reasonable basis' for inferring the presence of a contraband, and thus satisfied the more stringent requirements of a facially sufficient information, at least for purposes of a CPL § 170.70 application."

In 1986 the Court of Appeals again addressed this issue. In People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986) the court was confronted with a misdemeanor complaint [*5]alleging the following: "Deponent is informed by an undercover police officer of the New York City Police Department, Shield Number 6938, who is known to the deponent, that defendant knowingly and unlawfully sold to informant marijuana to wit: 2 clear plastic bags of marijuana, for a sum of United States currency." Noting the absence of any evidentiary facts providing a basis for the officer's conclusion that the substance in question was marijuana, the court found the complaint to be facially insufficient. In so doing, the court specifically noted that there was "no allegation that the police officer is an expert in identifying marihuana (cf. People v. Kenny, 30 NY2d 154, 331 NYS2d 392, 282 NE2d 295), nor any allegation that the defendant represented the substance as being marihuana." People v. Dumas, supra . at 731, 506 NYS2d 319, 320

Dumas, id. spawned a number of cases picking up on the court's recognition of the absence of any reference to the attesting police officer's expertise in recognizing marijuana or controlled substances. For example, in People v. Paul, 133 Misc 2d 234, 237, 506 NYS2d 834, 836 (Crim.Ct. NY Co.1986) the court held that "a complaint is facially sufficient if an officer states that a defendant possessed a substance which, because of his training and experience, the officer concluded was narcotics. There is no requirement that the complaint contain a description of the officer's training and experience." In so holding, however, the court specifically noted that "[t]he court will require, ..., especially in cases where the complaint charges possession of a controlled substance other than marijuana, a laboratory report in order to convert the complaint to an information. The court in People v. Burton, supra . at 705, 507 NYS2d 809 similarly found a laboratory report "an absolute necessity" to convert a misdemeanor complaint to an information, noting that "[t]he experience and training of a police officer in the area of narcotics detection and identification, standing alone, does not satisfy the CPL requirement that the factual part of the information be supported by non-hearsay allegations." The court in People v. Fasanaro, 134 Misc 2d 141, 143, 509 NYS2d 713, 714 (Crim.Ct. NY Co.1986) disagreed with the People v. Paul, supra . decision, to the extent of holding that "generalized, unquantified and unspecified allegations of training and experience regarding narcotics are insufficient allegations of expertise under People v. Dumas and, without more, result in drug possession complaints which are facially deficient." In so holding the court reasoned that "the selection of the word expert' by the Court of Appeals conveys the idea of a very high level of training and experience, not the few hours of police academy training concerning narcotics every rookie police officer possesses." People v. Fasanaro, supra . at 142, 509 NYS2d 713, 714 Consistent with these decisions, in People v. James, 138 Misc 2d 920, 921, 526 NYS2d 363, 364 (Crim. Ct. Kings Co. 1988) the court found an accusatory instrument alleging that the deponent police officer " has previously seized crack cocaine, which was determined to be such by chemical analysis by the Police Laboratory, and the substance in this case possesses the same physical characteristics as such previously ... identified substance[,]'" to be a sufficient complaint. The court went on to hold, however, that before the non-hearsay requirements of an information will be satisfied a "laboratory report is necessary to support the Officer's bare belief, whether a foundation for the officer's experience is set forth or not." People v. James, id. at 921, 526 NYS2d 363, 364 The court in People v. Brightman, 150 Misc 2d 60, 565 NYS2d 989 (Dist.Ct. Nassau Co.1991) came down somewhere in the middle between People v. Paul, supra . and People v. Fasanaro, supra . with regard to the level of a police officer's expertise which must be set forth in an accusatory instrument before it will be recognized to be a facially sufficient misdemeanor complaint. This court was of the opinion that: [*6]

[t]he concern of the Court of Appeals in Dumas that the conclusory allegation of drug possession must be supported by evidentiary facts showing the basis for the police officer's conclusion, such as his or her expertise in identifying the substance in question, is not met by an officer's statement that the conclusion was based upon training and experience' without some indication as to the nature of that training and experience.

People v. Brightman, supra . at 63, 565 NYS2d 989, 991 Recognizing that it "would be impracticable and excessive to require a detailed recitation mired in the minutiae of the number of narcotics arrests made and courses taken by an officer," the court held that, at a minimum, the accusatory instrument must set forth that "such training and experience was in narcotics investigations, detection or identification[.]" People v. Brightman, id. at 63, 565 NYS2d 989, 991 The court further held that a drug field test, as merely a preliminary screening tool, cannot convert a misdemeanor complaint to an information.

In the 1990's the Court of Appeals once again addressed these issues, this time in the context of addressing the facial sufficiency of juvenile delinquency petitions and indictments. In Matter of Jahron S., 79 NY2d 632, 639, 584 NYS2d 748, 753 (1992), the court made "clear that because both informations and petitions are the ultimate instruments of prosecution and because both are required, in identical language, to contain nonhearsay allegations that establish, if true, every element of the offense charged and the accused's commission of the offense, that a prima facie case standard is applicable to both." The court then distinguished People v. Dumas, supra ., noting that it:

involved a misdemeanor complaint, and the factual part of a misdemeanor complaint must simply establish reasonable cause' to believe that the defendant committed the crime charged (CPL 100.40[4][b]). Thus, a much lower standard is applicable when determining the legal sufficiency of complaints, which, unlike informations and petitions, do not serve as the sole instrument of prosecution and adjudication.

Matter of Jahron S., supra . at 640, 584 NYS2d 748, 753 Based thereon, the court held that a police officer's supporting deposition alleging that, " based upon [his] training and experience as a police officer assigned to a special narcotics unit with respect to the appearance, handling and packaging of narcotics and other controlled substances' he believed the substance to be crack cocaine[,]" Matter of Jahron S., id. at 634, 584 NYS2d 748, 749 was insufficient to meet the prima facie case requirement of a petition or information. The court further went on to note that there was no need to establish a per se rule mandating that a laboratory report will always be necessary and left "open the possibility that a deposition based on personal knowledge and expertness may, in now unforseen circumstances, qualify as sufficient evidence to establish a prima facie case of drug possession because of the nature of the crime, or it elements, or the special knowledge of the affiant." Matter of Jahron S., id. at 640, 584 NYS2d 748, 753

In Matter of Wesley M., 83 NY2d 898, 613 NYS2d 853 (1994) the court dismissed a juvenile delinquency proceeding where the police officer's supporting deposition did not attest to his expertise in dealing with illicit narcotics and the laboratory report annexed to the petition was an unsigned copy.

Harkening back to People v. Kenny, supra ., in People v. Swamp, 84 NY2d 725, 730, 622 NYS2d 472,474 (1995) the Court of Appeals reiterated that "in drug related prosecutions, the People's case is legally sufficient if the evidence provides a reliable basis' for [*7]inferring the presence of a controlled substance (citation omitted). More than conclusory assertions that the defendant possessed a drug are required at the Grand Jury stage (citations omitted)." The court then upheld the sufficiency of an indictment charging the defendant with unlawful possession of cocaine based upon the testimony of a United States Customs inspector who, based upon his training and experience in the preliminary identification of drugs by their appearance and packaging, as well as his experience and training in conducting preliminary field tests, identified the substance in the defendant's possession as cocaine. Although the preliminary field test report itself was not submitted to the Grand Jury, the court found it sufficient that "the officer who performed the field test actually testified before the Grand Jury as to his own observations." People v. Swamp, id. at 731, 622 NYS2d 472,475 Thereafter, quoting from its Swamp, supra . decision, in Matter of Angel A., 92 NY2d 430, 681 NYS2d 787 (1998), the court sustained the facial sufficiency of a juvenile delinquency petition finding that "the undercover officer's supporting deposition ... tended to corroborate the preliminary Scott-Reagent test, a field test routinely relied upon by law enforcement to determine the presence of a controlled substance' (citation omitted)."

Picking up on the Court of Appeals' reiteration of the "reliable basis" standard first set forth in People v. Kenny, supra ., along with the court's finding a preliminary field test report sufficient to provide such basis, the court in People v. McIntyre, 185 Misc 2d 58, 65, 711 NYS2d 317, 322 (Crim. Ct. Bronx Co. 2000) found that "the positive results of the Scott-Reagent field test and the observations by a trained police officer of the substance and its packaging - provided a reliable basis'" sufficient to convert a misdemeanor complaint to an information.

As previously indicated, bucking this developing trend, the court in People v. Hurd, supra . followed the nearly twenty (20) year old holding of People v. Hernandez, supra ., finding an information to be sufficient based upon observations of the arresting officer, even in the absence of any laboratory report. In so holding, the court noted that the decision of the Court of Appeals in Matter of Jahron S., supra ., left open the question of whether or not a supporting deposition alone my support an information in narcotics cases, and that "while Swamp found field test analysis together with non-hearsay observations by an experienced officer to be sufficient, it nowhere determined that the field test analysis was necessary,' and that the non-hearsay observations by the officer alone would, without such an analysis, be insufficient." People v. Hurd, supra . at 611, 714 NYS2d 404, 407 (Dist. Ct. Nassau Co. 2000)

The Hurd, id. holding, however, appears to be contrary to a number of appellate decisions which preceded it. See: Matter of James M.B., 225 AD2d 1078, 639 NYS2d 205 (4th Dept. 1996) [police officer's supporting deposition along with an uncertified laboratory report found insufficient to support petition]; Matter of Juan C., 205 AD2d 769, 614 NYS2d 929 (2nd Dept. 1994) [absence of a properly verified laboratory report renders the petition jurisdictionally defective]; Compare: In re Jayson P., 243 AD2d 266, 662 NYS2d 504 (1st Dept. 1997) [police officers' supporting depositions along with reliable field test report provided reasonable basis to believe the respondents committed the crime with which they were charged]; Matter of Kerwin C., 207 AD2d 890, 616 NYS2d 754 (2nd Dept. 1994) lv. den. 84 NY2d 812, 622 NYS2d 914 (1995) [police officers' supporting depositions along with properly verified laboratory report rendered petition facially sufficient); Matter of Jonathan T., 247 AD2d 482, 668 NYS2d 682 (2nd Dept. 1998) [verified police and laboratory reports "taken together" provide sufficient non-hearsay allegations to support petition] [*8]

Recent decisions addressing marijuana prosecutions appear to be consistent with these cases. In People v. Jackson, 17 Misc 3d 788, 844 NYS2d 841 (Crim.Ct. NY Co. 2007) the court denied a motion to dismiss the information as facially insufficient where it was supported by a deposition of an experienced police officer trained in the in the identification of drugs and a field test report which confirmed the substance in question to be marijuana. In granting the defendant's motion to dismiss the indictment against him, the court in People v. Ubrich, 22 Misc 3d 223, 866 NYS2d 498, 501 (S.C. Albany Co. 2008) noted that it "did not find any reported New York State Appellate Court decision or superior court decision holding that a trained police officer's testimony without a field test constitutes legally sufficient evidence ... to sustain ... charging criminal possession or sale of marihuana." [emphasis in original] Similarly, in Matter of Javen C., __ AD3d __, 868 NYS2d 742 {57 AD3d 537} (2nd Dept. 2008) the Appellate Division upheld a petition supported by a sworn police report and sworn laboratory report establishing the substance involved to be marijuana.

Turning to the information presently before the court, contrary to the argument of the People, in determining the facial sufficiency of an information, the court is not "limited to the determination of whether there were sufficient factual allegations from which a reasonable juror could reasonably infer that the officers had probable cause to arrest." (Smit Affirmation 1/29/09, ¶ 12) As the Court of Appeals explicitly noted in People v. Alejandro, supra . at 137, 517 NYS2d 927, 929 (1987) "the factual part [of an information] must meet two conditions: (1) that the allegations provide reasonable cause to believe that the defendant committed the offense (subd.[b]) and (2) that nonhearsay allegations establish, if true, every element of the offense charged (subd.[b])." This latter condition is recognized to require that the allegations set forth in the information establish a prima facie case, See: People v. Alejandro, supra ., People v. Henderson, 92 NY2d 677, 685 N.Y.S. 409 (1999), which is a "more stringent condition" People v. Alejandro, supra . at 137, 517 NYS2d 927, 929 (1987) than a mere showing of reasonable or probable cause.

While the statement of the deponent police officer in the matter sub judice, that he personally observed the Defendant to be in possession of what he believed to be marijuana, may be sufficient to provide the officer with probable cause to make an arrest and reasonable cause to believe the Defendant committed the offense with which he is charged, sufficient to establish the facial sufficiency of a misdemeanor complaint, See: Matter of Jahron S., supra .; People v. Paul, supra .; People v. James, supra ., without the substance allegedly possessed by the Defendant being demonstrated to be marijuana, the pleading cannot survive as a facially sufficient information. See: People v. Harvin, supra .; People v. Blow, 127 Misc 2d 1054, 487 NYS2d 293 (Crim. Ct. Bronx Co. 1985); People v. Ranieri, supra .; Matter of James M.B., supra .; Matter of Juan C., supra .

Although, as noted above, the Court of Appeals in Matter of Jahron S, supra . at 640, 584 NYS2d 748, 753 (1992), left "open the possibility that a deposition based on personal knowledge and expertness may, ... , qualify as sufficient evidence to establish a prima facie case of drug possession because of the nature of the crime, or it elements, or the special knowledge of the affiant[,]" the court, at that time, could not foresee any circumstances wherein that might be the case. In the past seventeen (17) years, although given the opportunity to do so, the court has not, as yet, found such an appropriate circumstance. Moreover, even if such a circumstance may exist, this is not the case.

The deponent police officer in the matter sub judice provides the court with scant [*9]evidence of his alleged expertise. The information alleges nothing more than that the deponent has been a police officer for fifteen(15) years, has had some sort of training in the identification of narcotics, the definition of which does not include marijuana [See: Penal Law § 220.00 (7) and (8) and Public Health Law § 3306], and has been involved in "numerous" narcotics arrests. Such lip service to the officer's alleged training and experience is a far cry from setting forth his expertise in identifying marijuana. See: Matter of Jahron S, supra .; People v. Brightman, supra .; People v. Fasanaro, surpa.[FN2] Similarly, nowhere does the deponent set forth the basis for his belief that the brown leafy substance he observed was marijuana, i.e. its special appearance, packaging, aroma, use, past experience, etc. See: People v. Jackson, supra .; People v. Escalera, surpa.

In addition to the foregoing, as demonstrated by the above historical development of this area of law, particularly in the field of marijuana related prosecutions, the prevailing view is that, in the absence of other corroborative proof, i.e. an admission by the defendant, a supporting deposition from one who is actually familiar with the particular substance in question and knows it to be marijuana, a facially sufficient information must include either a certified laboratory analysis (FEB) or a preliminary field test report demonstrated to be reliable. See: People v. Lynch, supra .; People v. Dumas, supra .; People v. Escalera, surpa.; People v. Ubrich, supra .

Finally, although the People have indicated their desire to cure the aforesaid defects in the information, by filing an FEB, which might otherwise result in the denial of the Defendant's motion to dismiss, See: CPL § 170.35(1); People v. Casey, 95 NY2d 354, 717 NYS2d 88 (2000); People v. Clinkscales, 3 Misc 3d 333, 774 NYS2d 308 (Dist.Ct. Nassau Co. 2004); People v. Pacifico, 105 Misc 2d 396, 432 NYS2d 588 (Crim.Ct. Queens Co. 1980) the People have not made any effort to explain their failure to file an FEB in this case in nearly six (6) months and provide no information as to when the court might reasonably anticipate that an FEB might be filed, other than to advise that it will be "in the near future." (Smit Affirmation 1/29/09, ¶ 14)

Based upon all of the foregoing, that branch of the Defendant's motion seeking to dismiss the information is granted; and, the information is hereby dismissed. The balance of the Defendant's motion having been mooted by this dismissal, those prayers for relief are denied, without prejudice.

This constitutes the decision and order of the court.

Dated: Hempstead, New York

February 20, 2009

___________________________

ANDREW M. ENGEL [*10]

J.D.C. Footnotes

Footnote 1: The standards for the sufficiency of an indictment and the sufficiency of an information have been found to be analogous, if not identical. See: People v. Swamp, 84 NY2d 725, 730, 622 NYS2d 472,474 (1995); People v. Harvin, 126 Misc 2d 775, 483 NYS2d 913 (Crim.Ct. Bronx Co. 1984)

Footnote 2: It is noted that the deponent in Fasanaro, supra . at 142, 509 NYS2d 713, 714, like the deponent in the matter sub judice, alleged that he identified the substance in question " based upon [his] prior experience as a police officer in seizing narcotics and making narcotics arrests; professional training as a police officer with respect to the identification of narcotics."