People v Sweeper (Bruce)

[*1] People v Sweeper (Bruce) 2007 NY Slip Op 50935(U) [15 Misc 3d 138(A)] Decided on May 7, 2007 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2005-881 Q CR.

The People of the State of New York, Respondent,

against

Bruce Sweeper, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Joseph Zayas, J.), rendered April 25, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the seventh degree.

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

Defendant was originally charged in an information with, inter alia, criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) in that at the time and place alleged, a New York City Police Officer recovered from defendant's pants pocket one glass pipe containing cocaine. In a form supporting deposition, the officer stated that he recovered, inter alia, a glass pipe containing crack cocaine residue from defendant's front pants pocket. The officer further stated, by checking off boxes on the form, that he believed the substance to be what he alleged, based upon his professional training as a police officer in the identification of drugs and his prior experience as a police officer. The officer also checked boxes indicating that his knowledge was based on the odor emanating from the substance as well as observations of the packaging which is characteristic of this type of drug. Subsequently, the information was superseded by a prosecutor's information. Following the trial, the jury found defendant guilty of criminal possession of a controlled substance in the seventh degree. On this appeal, defendant contends that the prosecutor's information was jurisdictionally defective as the underlying information failed to sufficiently allege that there was crack cocaine residue in the pipe recovered from defendant.

A prosecutor's information is jurisdictionally defective if the original information it supersedes and any supporting depositions do not contain adequate factual allegations (see People v Inserra, 4 NY3d 30, 32 [2004]; see also CPL 100.40 [1] [c]; 100.50 [2]). To be adequate, nonhearsay allegations must establish, if true, every element of the offense charged and defendant's commission thereof (CPL 100.40 [1]; see also People v Casey, 95 NY2d 354, [*2]360 [2000]). Here, the original information was facially insufficient, as it contained no laboratory report identifying the pipe residue as cocaine. As the Court of Appeals indicated in Matter of Jahron S. (79 NY2d 632 [1992]), a police officer's opinion as to the substance seized is generally legally insufficient because it does not by itself establish the existence of a controlled substance which is an element of the crime charged (see also People v Sierra, 45 NY2d 56, 59-60 [1978]). Although the Court of Appeals declined to establish a per se rule requiring the submission of a laboratory report to establish a prima facie case, noting that in "now unforeseen circumstances" a deposition based on "personal knowledge and expertness" may be sufficient (Matter of Jahron S., 79 NY2d at 640), no such circumstances exist here. The officer merely opined that, based on his training and experience with respect to the handling and packaging of narcotics, he believed the substance seized to be crack cocaine. The officer's bare statement, that based on his experience the substance seized from defendant was crack cocaine, is insufficient to satisfy the prima facie case requirement (see Matter of Jahron S., 79 NY2d at 639-640). Since neither the information nor the supporting deposition set forth any allegations that would establish the existence of crack cocaine in the glass pipe, 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 accusatory instrument dismissed.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: May 7, 2007