People v Zachary

[*1] People v Zachary 2017 NY Slip Op 50895(U) Decided on May 12, 2017 District Court Of Nassau County, First District Kluewer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 12, 2017
District Court of Nassau County, First District

The People of the State of New York, Plaintiff(s)

against

Pamela Zachary, Defendant(s).



CR-012718-16NA



Honorable Madeline Singas, District Attorney

240 Old Country Road

Mineola, NY 11501

Austin Law Associates, P.C.

1000 Franklin Avenue, Suite 201

Garden City, NY 11501
Susan T. Kluewer, J.

Defendant's motion for an order dismissing the accusatory instrument, suppressing tangible evidence, suppressing statements the People attribute to her, precluding the People from offering identification testimony, directing that the People disclose prior bad acts they intend to use for impeachment purposes, and directing that they turn over Brady material is granted to the extent that:

1.the issues of whether any evidence should be suppressed because [*2]of unlawful police intrusions, whether the statements attributed to Defendant should be separately suppressed as products of threats, coercion, improper promises, or on account of a violation of the requirements of Miranda v. Arizona (384 US 436 [1966]), and whether identification testimony should be suppressed as the product of an unduly suggestive, police-arranged identification procedure, are set down for a pre-trial hearing; and

2.the permissible scope of cross-examination of Defendant concerning her past, should she elect to testify at trial, shall be determined at a hearing to be conducted immediately before trial, upon which the People shall notify Defendant of all specific instances of prior uncharged criminal, vicious or immoral conduct of which they have knowledge and which they intend to use at trial for impeachment purposes.

Defendant was originally accused by two felony complaints filed under this docket of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree (see Penal Law §§ 220.16[1], 220.09[1]). She was also, and remains, accused by information of criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03). All charges arise from an incident that is alleged to have occurred on May 20, 2016 at 11:00 p.m. at Pines Motor Inn in Westbury, New York. By the verified (see CPL 100.30[1][d]) factual part (see CPL 100.15[3]) of what is designated count 1, the complainant (see CPL 100.15[1]), Nassau County Police Officer Christopher P. Maher, attests that:

"defendant Pamela Zachary was in possession of 2 clear plastic bags each which contained a white powdery substance believed to be cocaine. Your deponent further states that he observed the 2 alleged bags of cocaine on the front passenger side floorboard of a 2004 Ford Taurus NY reg. No. GWK8350 black in color which the defendant was seated in the front passenger seat during a narcotics investigation. Your deponent further states that he recovered the two alleged bags of cocaine from the front passenger side floor board of the vehicle. Your deponent states that he bases his belief that defendant Zachary possessed the alleged cocaine with intent to sell it based on how it was packaged for sale.

"Your Deponent bases his belief that the substance recovered is Cocaine based upon his 17 years as a police officer, training he received in narcotics identification from the NYPD Police Academy, NYPD Street Narcotics Enforcement Unit Training and the Nassau County Police Academy. Deponent further states that said substance is believed to be Cocaine based on [its] color, appearance, texture and packaging used to [*3]contain it and it also matched substances from previous arrests which were determined to be Cocaine. Belief is also based on your deponent's involvement in several hundred arrests for Cocaine.

By the verified factual part of what is designated count 2, Officer Maher attests that:

"defendant Pamela Zachary was in possession of 2 clear plastic bags each which contained a white powdery substance believed to be cocaine. Your deponent further states that he observed the 2 alleged bags of cocaine on the front passenger side floorboard of a 2004 Ford Taurus NY reg. No. GWK8350 black in color which the defendant was seated in the front passenger seat during a narcotics investigation. Your deponent further states that he recovered the two alleged bags of cocaine from the front passenger side floor board of the vehicle. Your deponent states that he weighed the alleged cocaine on a digital scale and the alleged cocaine weighs approximately 5 grams.

"Your Deponent bases his belief that the substance recovered is Cocaine based upon his 17 years as a police officer, training he received in narcotics identification from the NYPD Police Academy, NYPD Street Narcotics Enforcement Unit Training and the Nassau County Police Academy. Deponent further states that said substance is believed to be Cocaine based on [its] color, appearance, texture and packaging used to contain it and it also matched substances from previous arrests which were determined to be Cocaine. Belief is also based on your deponent's involvement in several hundred arrests for Cocaine.

By the verified factual part of what is designated count 3, complainant Nassau County Police Officer James K. Friel, Jr., attests that:

"defendant Pamela Zachary was in possession of a round glass pipe which contained a burnt substance believed to be crack cocaine residue. Your deponent further states that he recovered the alleged crack pipe from the defendant's right hand after your deponent observed the defendant remove it from her bra.

"Your Deponent bases his belief that the substance recovered is Crack Cocaine Residue based upon his 10 years as a police officer, training he received in narcotics identification from the Nassau County Police Academy. Deponent further states that said substance is believed to be Crack Cocaine Residue based on [its] color, appearance, texture and packaging used to contain it and it also matches substances from previous arrests which were determined to be Crack Cocaine Residue. Belief is also based upon your deponent's involvement in several hundred arrests for Crack Cocaine Residue."

On July 21, 2016, the court (Prager, J.), through notations, converted each of the felony complaints — counts 1 and 2 — to a misdemeanor complaint accusing [*4]Defendant in each instance of one count of criminal possession of a controlled substance in the seventh degree (see CPL 180.50[2][b]; see also CPL 180.50[3][b]). No supporting deposition is annexed to the accusatory instrument. What is annexed to it is a Nassau County Police Department document purporting to give Defendant notice pursuant to CPL 710.30 of what police assert the People intend to offer at trial, i.e., statements it is claimed Defendant made at the scene and time of her arrest to the effect that "I don't know whose drugs those are, they're not mine" and "I have a crack pipe in my bra;" and an identification by "arresting officers" at the scene and time of the incident made in the following manner "observed." There is no indication that the People, represented by the District Attorney, have served such a notice. On September 22, 2016, the People did file, but apparently did not serve, a certificate of readiness. They also on that date filed a "lab" with the apparent intention that it be annexed to the accusatory instrument. This two-page document bears the heading "NMS Labs" located in Willow Grove, Pennsylvania, is titled "Drug Chemistry Final Report," is dated "9/13/2016," is addressed to Nassau County Police Department "Attn: Det/Sgt Marc Marino," and, under the heading "Name(s)/(DOB):" it specifies "WHEELER, Larry" and "ZACHARY, Pamela." According to this document, on June 22, 2016, four "knot-sealed colorless plastic bags each containing off-white solid material," one "zipper-sealed colorless plastic bag containing plant-like material," and one "colorless glass smoking device containing a brown solid residue" were "hand delivered" to or by "M. Marino." Also according to this document, the contents of two of the four "knot-sealed" bags and the contents of the "zipper-sealed" bag were analyzed by specified methods, the former was confirmed to be cocaine, the latter was confirmed to be marijuana, and the smoking device residue was "[n]ot analyzed."The following is on the second page of this document:

"I participated in the determination of the results and have reviewed the analytical data utilized in reporting the results of this case, and they are accurate and correct as reported. This analysis was performed under chain of custody. The chain of custody documentation is on file at NMS Labs, Inc. False statements made herein are punishable as a class A misdemeanor pursuant to section 210.45 of the New York State penal law.

"The remainder of the submitted evidence should be picked up within thirty (30) days after receipt of the laboratory report unless alternate arrangements are made by you prior thereto.

"The weight of evidentiary item(s) expressed as a decimal represents the truncated value. This report indicates analytically determined weight of evidentiary item(s) expressed with an expanded uncertainty (k=2.576) corresponding to 99% confidence.

Case 16-WLG-009192 was electronically signed on 9/13/2016 15:14 Joshua F. Folger, B.S., Forensic Chemist"

Defendant now moves for the above-note relief. Proceeding on the assumption that all three counts are interposed by information, insofar as she seeks dismissal of the accusatory instrument, and focusing on counts 1 and 2, she urges that the manner of her possession is insufficiently described, that the allegation that the bags were recovered from the passenger side floorboard of the car she was in is not adequate, that "constructive possession must be established," that there are no allegations that she actually possessed the contraband or exercised dominion and control over the location from where the substance was seized, and that she does not own and was not driving the car. As to each of the three counts, she further asserts that there are insufficient allegations demonstrating that the substance she is claimed to have possessed is cocaine or crack cocaine, and that the officers' attestations that the substances recovered are believed to be controlled substances are based on hearsay and are vague and conclusory. While she acknowledges that the People have filed a laboratory report, she urges that the report "does not sufficiently establish which defendant the report actually relates to," that it fails to specify which two of the four bags delivered were tested, that it therefore does not demonstrate that the two bags she is accused of possessing are the ones in which the presence of cocaine is confirmed, that what she is accused of possessing is described as a "white powdery substance" whereas what was delivered for testing is described as an "off-white solid material," that the substance believed to be crack-cocaine residue was not analyzed at all, and that, therefore, the laboratory report fails to contain a proper demonstration that what she is accused of possessing under any count is a controlled substance. Asserting that these defects are jurisdictional, she urges that each count must be dismissed. Insofar as Defendant seeks suppression of tangible property, she asserts that she was arrested and searched by police without probable cause, that neither she nor the driver of the vehicle in which she was a passenger committed any violation of the Vehicle and Traffic Law, that no permission was given to search the vehicle, that the material recovered was not in plain view, and, tacitly, that neither was the pipe and its residue. Insofar as Defendant seeks of suppression of statements, she apparently accepts the police issuance of a "710.30" notice as valid. She thus asserts that the statements attributed to her were illegally obtained after she was placed in custody and subjected to questioning without benefit of Miranda warnings, and that they are products of her unlawful arrest. Insofar as she seeks "preclusion" of identification testimony, she again makes reference to the police-issued "710.30" notice, posits that the "observation procedure" was unduly suggestive, and urges that, therefore, it was violative of her rights, effectively [*5]transforming this application to one for suppression. She addresses her request for disclosure of prior bad acts the People intend to use against her for impeachment purposes, and requests that the People acknowledge their continuing duty to disclose Brady material.

The People, appearing by a "law assistant" who purports to "affirm" (but see CPLR 2106), oppose only those branches of Defendant's motion which are for dismissal of counts 1 and 2. In that regard, they assert that possession means both physical and constructive possession, and urge that, given the presumption contained in Penal Law § 220.25, the allegations that two bags of cocaine were recovered from the vehicle in which Defendant was a passenger are sufficient to establish constructive possession. They do not directly address Defendant's claim that the allegations of the accusatory instrument itself are inadequate to establish that the substances recovered were cocaine and crack cocaine residue, or her complaint that only two of the four bags of what is alleged to be cocaine were tested. They instead focus on her complaint that what is described in the accusatory instrument is not described exactly the same way in the report, and assert that this complaint is "unavailing." They thus posit, in effect, that "2 clear plastic bags" of "a white powdery substance" are the same as "four knot-sealed colorless plastic bags" of "an off-white solid material," and urge that "the substances listed in the lab report are clearly the same substances described in the criminal complaints." They then effectively concede that count 3 must be dismissed because the substance contained in the pipe was not analyzed. They also consent to suppression hearings to determine whether any evidence should be suppressed because of unlawful police intrusions, whether Defendant's statements should be suppressed because of undue coercion or on account of a violation of the requirements of Miranda v. Arizona (supra), and whether identification testimony should be suppressed because there was police-arranged identification procedure that was unduly suggestive. Noting that they are not required to disclose prior bad acts they intend to use for impeachment purposes until just before jury selection, they consent to a hearing to determine the scope of their use of those acts, provided that hearing is conducted immediately before trial. Finally, they acknowledge their continuing duty to disclose Brady material.

Defendant in reply makes no direct mention of the presumption contained in Penal Law § 220.25(1), and instead again posits that the allegation that she was a passenger in an automobile from which contraband was recovered is not enough to sufficiently establish actual or constructive possession. She also again urges that the accusatory instrument fails to contain non-hearsay allegations which sufficiently demonstrate that she possessed a controlled substance and [*6]that she acted knowingly, that the Officer Maher's attestations about his training and experience are insufficient to demonstrate that the substance retrieved from the vehicle was cocaine, and, in effect, that the laboratory report does not cure the defect. She further notes that the People do not address her claim that the laboratory report inadequately connects her to what was actually analyzed, comments for the first time that the counts are "duplicitous," and disputes the People's assertions that "clear" is the same as "colorless," that "white" is the same as "off-white," that "two" is same as "four," and that "powdery" is the same as "solid."

Since Defendant has not consented to be prosecuted by misdemeanor complaint, any challenge to the facial sufficiency of the accusatory instrument must be evaluated under the standard applicable to an information (see People v. Kalin, 12 NY2d 225, 878 NYS2d 653 [2009]). It is well settled that, in order to be sufficient, a long form information, together with any supporting depositions annexed to it, must provide reasonable cause to believe that the person named in it committed the offense charged, and contain sworn, non-hearsay allegations supporting every element of that offense, and that person's commission thereof (see CPL 100.15, 100.40[1]). Concrete, non-hearsay factual allegations are sufficiently supportive of an element of the offense charged if they give rise to a reasonable inference that the named defendant committed that particular element or acted with the requisite mental culpability (see People v. Henderson, 92 NY2d 677, 685 NYS2d 409 [1999]; People v. McGee, 204 AD2d 353,611 NYS2d 261 [2d Dept. 1994]; People v. Li, 192 Misc 2d 380, 745 NYS2d 683 [Nassau Dist Ct, 2002]; People v. Coyle, 186 Misc 2d 772; 719 NYS2d 818 [Nassau Dist Ct 2000]), but conclusory statements, unsupported by facts, are inadequate (cf. People v. Dumas, 68 NY2d 729, 506 NYS2d 319 [1986]). The information thus must demonstrate the existence of a prima facie case (People v Henderson, supra), but the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt (id. at 680, 685 NYS2d at 411). When ruling on the sufficiency of an information, a court must accept the factual allegations as true (People v. Casey, 95 NY2d 354, 717 NYS2d 88 [2000]; People v Henderson, supra), but it is limited to reviewing the facts as they are set forth in the four corners of the accusatory document (see People v. Grabinski, 189 Misc 2d 307, 731 NYS2d 583 [App Term 2d Dept 2001]; People v. Voelker, 172 Misc 2d 564, 658 NYS2d 180 [Crim Ct, New York County, 1997, Morgenstern, J.]; cf. CPL 100.40[1]).

A person is guilty of criminal possession of a controlled substance in the seventh degree when he or she "knowingly and unlawfully possesses a controlled substance" (see Penal Law § 220.03). Cocaine in any of its forms is a controlled [*7]substance (see People v. Burnett, 245 AD2d 460, 666 NYS2d 658 [2d Dept 1997]; see also Public Health Law § 3306). Moreover, "the presence of a controlled substance in an automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found" (see Penal Law § 220.25[1]).

Turning first to the issue of whether the laboratory report on which the People so heavily rely demonstrates prima facie that what Defendant is accused of possessing is some form of cocaine, and putting aside the fact that the document is not annexed to the accusatory instrument, since it reflects that there was no scientific analysis of the residue in the pipe, it obviously fails to contribute anything to support count 3. Its support of counts 1 and 2 is almost as deficient. First, although Defendant's name is one of two that are baldly included in the report dated September 13, 2016, there is no fact alleged in it that connects any of the mentioned substances to the incident of May 20, 2016 that is the premise for this prosecution. The fact that "chain of custody documentation is [alleged to be] on file" somewhere at "NMS, Labs, Inc." is here useless. Second, and putting aside the differences between "white" and "off white," and "powdery" and "solid," and momentarily assuming that the document otherwise establishes some connection between Defendant, her arrest in May of 2016, and what was tested, apparently some four months later, it for some reason reflects that four plastic bags of something "off-white" were delivered for analysis — and only two were tested — when the only fair inference to be drawn from the pleading as a whole is that the two plastic bags of something white Defendant was originally accused of possessing with intent to sell are the same two plastic bags of something white she was originally accused of simply possessing, i.e., that Officer Maher observed and retrieved only two clear plastic bags of something white from the front passenger side floor board of the car in which it is claimed Defendant was a passenger. It is therefore reasonably likely that what Officer Maher observed and retrieved was not tested at all. Fourth, the forensic chemist who signed the document is vague about the level of his "participation in the determination of the results," and it is thus unclear exactly on what his statements are based. Finally, although the document purports to be verified by inclusion of a notice to the effect that "[f]alse statements made herein are punishable as a class A misdemeanor pursuant to section 210.45 of the New York State Penal Law" (see CPL 100.30[1][d]), since it appears that the statements contained in the report were made in another state, and since the purpose of the verification is to have the effect of an oath (cf. CPL 100.30 [1][a],[b],[c]; see also People v. Holmes, 93 NY2d 889, 689 NYS2d 687 [1999]), not only is a question raised as to whether any false statements made in the report can be punished in New York (cf. CPL [*8]20.20[2][b]), it may be that something else is required before this document can properly serve the function of a supporting deposition (see CPLR 2309[c]; see also CPL 100.20). In short, the "lab report" is inadequate support for each of the three counts.

Turning to the attestations made within the four corners of the accusatory instrument, I note the People, inexplicably, do not rely on them to defend their claims about the nature of the substances they accuse Defendant of possessing. They thereby thus tacitly express their view that those attestations are inadequate to sufficiently establish that the substances involved are cocaine and crack cocaine. But Defendant has squarely raised and addressed the issue, and although she contends otherwise, the officers' attestations in this regard do not present a question of hearsay, but, rather, one of adequate expertise. Moreover, I cannot, even in the context of considering count 3, ignore the Court of Appeals ruling which squarely establishes that attestations about scientific testing of substances claimed to be controlled are not necessary to make out, for pleading purposes, a prima facie case of criminal possession thereof, and that properly verified attestations about training in the identification and packaging of specified controlled substances, about experience with narcotics as a law enforcement officer, about direct observation of the substances involved, and about the presence, if any, of drug paraphernalia, are among those that can render a complainant law enforcement officer competent to attest, for pleading purposes, what a substance is (see People v. Kalin, supra). It is my view that Officer Maher's attestations about his training, experience, and what he observed — attestations more detailed than what the Court of Appeals in Kalin held to be satisfactory — are sufficient to establish that he is competent to make the attestations he makes. The same is true of Officer Friel's attestations. And although Defendant contends that Officer Maher's attestations are insufficient to establish that she actually or constructively and knowingly possessed the substance at issue under counts 1 and 2, since Officer Maher attests that he retrieved two clear plastic bags of a white powdery substance believed to be cocaine from the front passenger-side floorboard of a car in which Defendant was seated in the front passenger seat, the People are entitled to rely on the statutory presumption contained in Penal Law § 220.25(1) to complete their present prima facie-case obligation (see People v. Leyva, 38 NY2d 160, 379 NYS2d 30 [1972]; People v. Gonzalez, 235 AD2d 493 653 NYS2d 929 [2d Dept 1997]; and see People v. Kalin, supra). Defendant's application to dismiss the accusatory instrument as facially defective is accordingly denied in its entirety. The apparent multiplicity (see People v. Alonzo, 16 NY3d 267, 920 NYS2d 302 [2011]) of counts 1 and 2 is a flaw to be addressed after hearing from the People thereon.

Defendant's evidentiary applications, all of which I deem to be for suppression, are granted to the extent that the issues raised are set down for a combined pre-trial hearing. The record before me presents an issue about whether tangible and testimonial evidence, including Defendant's statements, should be suppressed as the product of unlawful police intrusions (see CPL 710.60[3][b]; People v. Mendoza, 82 NY2d 415, 604 NYS2d 922 [1993]; People v. Huntley, 259 AD2d 843, 687 NYS2d 747 [3d Dept. 1999]; People v. Toxey, 220 AD2d 204, 631 NYS2d 846 [1st Dept. 1995]; and see People v. Gruden, 42 NY2d 214, 397 N.Y.S.2d 704 [1977]). Moreover, while I am skeptical that this case actually involves a police-arranged identification "procedure," inasmuch as a somewhat confusing "710.30" notice suggesting it does has been served, inasmuch as the thresholds for obtaining a hearing to determine whether a police-arranged identification procedure was unduly suggestive and a hearing to determine whether statements to police are products of some form of coercion or of custodial interrogation without benefit of Miranda warnings are relatively easy to meet (see CPL 710.60[3][b]; People v. Mendoza, supra; People v. Weaver, 49 NY2d 1012, 429 NYS2d 399 [1980]; People v. Ryan, nor, 2005 NYSlipOp 51132U [Nassau Dist Ct, 2005]; and see People v. Grice, 100 NY2d 318, 763 NYS2d 227, 230 [2003]), inasmuch as that hearing will likely involve the same witnesses as would be called to present evidence about whether police intrusions were in this case lawful, and inasmuch as the People consent, the combined pre-trial suppression hearing noted above is called for and (see People v. Mendoza, supra ).

Defendant's application for an order regarding the People's disclosure and use of prior bad acts for impeachment purposes is granted to the extent that the matter is set down for a hearing as noted above (CPL 240.43; see People v. Matthews, 68 NY2d 118, 506 NYS2d 149 [1986]; People v. Sandoval, 34 NY2d 371, 357 NYS2d 849 [1974]; see also People v. Simpson, 109 AD2d 461, 492 NYS2d 609 [1st Dept. 1985]).

Defendant's application for an order directing that the People turn over Brady material is denied as unnecessary. The People's affirmative duty to disclose Brady material within their possession or control exists regardless of any order or statement confirming it, and regardless of the People's good or bad faith concerning the disclosure (cf. People v. Morgan, 178 Misc 2d 595, 682 NYS2d 533 [County Court, Fulton County, 1998, Giardino, J.]; People v. Jackson, 154 Misc 2d 718, 593 NYS2d 410 [Supreme Court, Kings County, 1992, Slavin, J]).

So Ordered.

May 12, 2017