Opinion
59634C2010.
Decided May 24, 2011.
Defendant, charged with criminal sale of marihuana in the fourth degree, moves to dismiss this misdemeanor case pursuant to CPL 30.30. He argues the People's statement of trial readiness was illusory because they did not have a report of lab analysis at the time they stated ready. The motion is denied.
Defendant was arraigned on a misdemeanor complaint on September 18, 2010. The complaint is signed by Detective Anthony Mattesi of the Bronx Narcotics Squad; it was based on hearsay information from undercover police officer, shield C0036. The undercover officer told the detective that on September 17, 2010, at about 12:45 pm, in Bronx County, defendant and an accomplice named Hashim Harley had a "drug related conversation" with the officer, after which the officer gave Mr. Harley $40.00. Mr. Harley, in defendant's presence, handed the officer three "clear ziplock bags each containing a dried green leafy substance with a distinctive odor." The undercover officer also informed Detective Mattesi that, "based upon [the undercover officer's] training and experience, which includes training in the recognition of controlled substances and marihuana . . . and their packaging, the aforementioned substances are alleged and believed to be marihuana."
The People did not have a supporting deposition from the undercover police officer when defendant was arraigned. The arraignment judge adjourned the case until November 30, 2010 for "conversion" of the misdemeanor complaint into an information. The arraignment judge stated the People only needed to file a supporting deposition from the undercover police officer to convert the complaint into an information.
On November 30, 2010, the People filed a valid supporting deposition from the undercover police officer in open court. The People stated they were ready for trial that day, based on People v. Kalin , 12 NY3d 225 (2009). However, the judge presiding did not accept the People's statement of readiness, directed the People to file a lab report, and adjourned the case until February 23, 2011, once again for "conversion."
The People did not file a lab report during the intervening period. On February 23, 2011, they continued to state ready for trial, based on Kalin. Defendant requested an adjournment to file a motion to dismiss pursuant to CPL 30.30. The case was adjourned to May 11, 2010 for decision. Defendant's motion, filed on March 2, 2011, alleges that the accusatory instrument was not converted to an information within 90 days of defendant's arraignment because the People failed to file a lab report, and thus they were not ready for trial. In an affirmation in opposition dated May 10, 2011, the People concede that they should be charged 73 days, the time between the September 18, 2010 arraignment and November 30, 2010. They argue that when they filed the supporting deposition, the accusatory instrument satisfied the legal requirements of an information, and they could state ready for trial validly. The Court agrees.
In Kalin, the Court held that the misdemeanor accusatory instrument in that drug possession case satisfied the legal criteria for an information even though the People did not have a corroborating lab report, or a field test. The Court held that a non-hearsay based accusatory instrument in which a police officer alleges that an item recovered is a "particular type of controlled substance" is an information where the "factual allegations . . . establish a basis of the arresting officer's belief." Id.at 229. This can be satisfied if, for example, "the accused made a statement identifying the drug." Id. It can also be satisfied if the officer describes the substance recovered in some physical way, and then states that based upon his or her training and experience in recognizing controlled substances and marihuana, the officer believes the substance recovered is one of those items. Id. at 230-31. See also People v. Pearson , 78 AD3d 445 (1st Dept. 2010); People v. Palmer, 24 Misc 3d 1218A (Crim Ct NY Cty 2009).
The Kalin ruling is consistent with the Court's long-standing definition of what constitutes a jurisdictionally-sufficient information. In People v. Casey, 95 NY2d 354, 360 (2000), the Court held that in a non-hearsay based accusatory instrument, the prima facie case requirement of CPL 100.40(1)(c) is satisfied"[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent defendant from being tried twice for the same offense." See also People v. Konieczny, 2 NY2d 569, 575 (2004). In Kalin, 12 NY2d at 231, the Court unequivocally "rejected the notion that a laboratory report is necessary to set forth a prima facie case." Thus, in a drug case, where a valid Kalin information is before the Court, the People may answer "ready for trial" without a corroborating lab report. Cf. People v. Wright , 50 AD3d 429 (1st Dept 2008); People v. Van Hoesen , 12 AD3d 5 , 8 — 9 (3d Dept 2004); see also People v. Archer, 2011 NY Misc. LEXIS 2219 (Sup Ct Bx Cty).
To this Court's knowledge, no case has ever held that, in determining a facial sufficiency motion, the legal test for determining whether an accusatory instrument is an information is somehow different in a case where the People state "ready" for trial, indicating they are moving the case to trial based on the accusatory instrument before the court, as opposed to the Kalin holding, determining with appellate hindsight whether an accusatory instrument is an information in a case in which a defendant did not expressly waive his right to be prosecuted by information and pled guilty. An information has only one legal definition. CPL 100.15; 100.40(1)(c). see also Casey, 95 NY2d at 359-360. It is this Court's opinion that a trial judge cannot distinguish a Kalin information from any other type of information for the purpose of "trial readiness."
In this case, defendant argues, in substance, the decision made by another judge on November 30, 2010 not to "deem" the complaint an information and therefore not accept the People's statement of readiness is binding on this Court. This argument is rejected for several reasons. First, a judge ruling on a motion to dismiss pursuant to CPL 30.30 is not bound by calendar markings or interim comments made by other judges as to issues of trial readiness; this "is a determination which is to be made when a defendant moves to dismiss on speedy trial grounds, and not at the time the adjournment is granted." People v. Berkowitz, 50 NY2d 333, 349 (1980); see also People v. Grainger, 162 Misc 2d 294, 296 (Crim Ct NY Cty 1995). This Court is also not bound by the prior judge's decision not to "deem" the complaint an information when the People filed the corroborating affidavit from the undercover police officer, removing the hearsay impediment. The determination of whether the accusatory instrument was an information on that date is directly relevant to the merits of this motion, and is therefore an integral part of this decision. People v. Portorreal, 2010 NY Misc LEXIS 1024 (Crim Ct Queens Cty); see also Berkowitz, 50 NY2d at 349.
Defendant argues that the judge's refusal to "deem the complaint an information" was tantamount to a ruling on its facial sufficiency on the merits. Ironically, the arraignment judge also expressed an opinion on how this complaint would be converted into an information, stating that the People needed only to file a supporting deposition from the undercover police officer. While this Court, in deciding this motion, agrees with the arraignment judge's opinion, neither that opinion, nor the opinion expressed by a second judge on November 30, 2010, has any legal effect on its decision.
In practice, attorneys will sometimes ask judges for their interim oral opinion about whether an accusatory instrument is an information, sometimes for the purpose of determining whether their time to file pre-trial motions has commenced. This informal process is neither recognized nor endorsed by the criminal procedure law. Where a defendant contests the People's statement that an accusatory instrument is an information, the law requires that specific grounds for dismissal be alleged in a written motion to dismiss that instrument on "facial sufficiency" grounds, made on notice to the People, as part of an adversarial proceeding. CPL 170.45, 210.45; see Portorreal, supra; see generally Matter of Duckman, 92 NY2d 141,146-147 (1998). Only then is a court empowered to make a legal ruling on the validity of an accusatory instrument. Id. A ruling on such a motion would result in an appealable order; an oral statement not accompanied by an order dismissing the case is never final in this regard. Here, no written motion was made until the current one. No judge signed any order dismissing the case. Therefore, only this Court's ruling on this issue of "facial sufficiency" in connection with the CPL 30.30 motion before it will generate an appealable order.
Binding appellate authority holds that the People can state ready for trial in any narcotics possession case without having a lab report; in fact, there are no CPL 30.30 consequences even if lab analysis is not requested for many months after the People state ready. Van Hoesen, 12 AD3d at 8-9. The accusatory instrument met the legal requirements of an information on November 30, 2010, under the binding authority of Kalin and Pearson. Accordingly, the People's statement of readiness for trial on that date was valid. See People v. Caussade, 162 AD2d 4, 8 (2nd Dept 1990). The People are charged a total of 73 days of pre-readiness delay prior to that date; there are no days chargeable since November 30, 2010. Since the top count of the accusatory instrument is a class A misdemeanor, the People have 90 days to state ready for trial. Accordingly, the motion to dismiss pursuant to CPL 30.30 is denied.
This constitutes the decision and order of the Court.