The People, Respondent,v.Roosevelt Jennings, Appellant.

Brief

N.Y.December 5, 2013

To be argued by NATALIE REA (10 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against - ROOSEVELT JENNINGS, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT STEVEN BANKS Attorneys for Defendant- Appellant THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street, 5th Floor. New York, N.Y. 10038 (Tel.) (212) 577-3403 NRea@Legal-Aid.org NATALIE REA Of Counsel December, 2012 i TABLE OF CONTENTS TABLE OF AUTHORITIES......................................................................... iii PRELIMINARY STATEMENT .....................................................................1 QUESTION PRESENTED..............................................................................2 SUMMARY OF ARGUMENT.......................................................................3 STATEMENT OF FACTS..............................................................................5 The Accusatory Instrument .............................................................................5 The Trial ..........................................................................................................6 The People’s Case .......................................................................6 The Defense Case ........................................................................7 Summations and Verdict .............................................................9 The Appeal.....................................................................................................10 ARGUMENT SINCE THE BURNT CRACK RESIDUE LEFT IN A GLASS PIPE CONTAINING COCAINE IS VISUALLY INDISTINGUISHABLE FROM BURNT CRACK RESIDUE WITHOUT COCAINE, AN INFORMATION ALLEGING KNOWING POSSESSION OF CRACK COCAINE RESIDUE BASED SOLELY ON THE VISUAL OBSERVATIONS OF A TRAINED ii AND EXPERIENCED POLICE OFFICER IS CONCLUSORY AND HENCE JURISDICTIONALLY INVALID, MANDATING DISMISSAL OF THE CHARGES. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6. ............................12 1. The visually based allegations of unlawful possession of cocaine in the burnt residue were conclusory ..........................14 2. The allegations that appellant knew the burnt residue contained cocaine were also conclusory ...................................................18 CONCLUSION .............................................................................................21 iii TABLE OF AUTHORITIES STATE CASES People v. Aguilar, 223 Cal. App. 2d 119 (Cal. App. 2d Div. 1963) .......16, 19 People v. Alejandro, 70 N.Y. 2d 133 (1987).................................................13 People v. Dumas, 68 N.Y.2d 729 (1986) ......................................................10 People v. Jennings, 34 Misc. 3d 137 (A)(App. Term. 2d, 11 th & 13 th Jud. Dists. 2011) .............................................................................1 People v. Jones, 9 N.Y. 3d 259 (2007)..........................................................14 People v. Kalin, 12 N.Y. 3d 225 (2009)................................................ Passim People v. Melendez, 225 Cal. App. 2d 67 (Cal. App. 1 st Div. 1964) ....................................................................16, 19 People v. Mizell, 72 N.Y. 2d 651 (1988) ..............................................3, 4, 18 People v. Reisman, 20 N.Y. 2d 278 (1971)...................................................18 People v. Riley, 136 Misc. 2d 968 (Crim. Ct. Bx. Co. 1987) ...................3, 16 People v. Suber, 19 N.Y. 3d 247 (2012) .......................................................14 State v. Baker, 912 S. W. 2d 541 (Mo. Ct. App. 1995).......................4, 16, 19 CONSTITUTIONAL PROVISIONS N.Y. CONST., ART. I, §6 .............................................................................12 U.S. Const., AMEND. XIV .........................................................................12 iv STATUTES C.P.L. §100.15 .................................................................................3, 4, 13, 14 C.P.L. §100.40 ...................................................................................10, 13, 14 P.L. §110.00.....................................................................................................1 P.L. §220.03.............................................................................................1, 3, 4 OTHER AUTHORITIES INCIARDI, BEYOND COCAINE: BASUCO, CRACK AND OTHER COCA PRODUCTS, 14 Contemp. Drug Probs. 461, 468-69 (1987) ....................................15 Jones, Reese T. (1990) eds. C. Nora Chiang, Ph.D., Richard L. Hawks, Ph.D.) NIDA Research Monograph 99 (Research Findings on Smoking of Abused Substances), 1990, p. 30-41 ...............................16 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : ROOSEVELT JENNINGS, : Defendant-Appellant. : ---------------------------------------------------------------X PRELIMINARY STATEMENT By permission of the Honorable Robert S. Smith, Associate Judge of the Court of Appeals, granted on June 27, 2012, this is an appeal from an order of the Supreme Court, Appellate Term: 2nd, 11th and 13th Judicial Districts. People v. Jennings, 34 Misc. 3d 137 (A) (App. Term 2d, 11 th & 13th Jud. Dists. 2011)(App-1). 1 That order, dated December 27, 2011, affirmed a judgment entered in the criminal court, Kings County rendered, July 13, 2009, convicting appellant, after a non-jury trial, of attempted criminal possession of a controlled substance in the seventh degree (P.L. §§110.00 and 220.03), and sentencing him to a determinate term of 1 Numbers preceded by “App-” refer to the pages of the attached appendix. 2 imprisonment of 30 days (Hong, J., at trial and sentence) (App-2-4). Appellant had no co-defendant below. The question before this Court is whether an information accusing a defendant of criminal possession of crack cocaine residue in a glass pipe based solely on the visual observations of a trained and experienced police officer is facially sufficient where burnt crack residue with cocaine is visually indistinguishable from burnt residue without cocaine? Counsel argues that it is not and that the information must be supported by a field test or other factual allegations supporting the conclusion that the residue contains cocaine. Because the question of the validity of an accusatory instrument is jurisdictional, it need not be preserved for appeal. On August 28, 2012, this Court granted appellant’s motion requesting the assignment of Steven Banks as counsel on appeal. QUESTION PRESENTED Whether, since the burnt crack residue left in a glass pipe containing cocaine is visually indistinguishable from burnt crack residue without cocaine, an information alleging knowing possession of crack cocaine residue based solely on the visual observations of a trained and experienced police officer is conclusory and hence jurisdictionally invalid, mandating dismissal of the charges? 3 SUMMARY OF ARGUMENT Appellant was charged by information with seventh-degree criminal possession of a controlled substance for possessing a crack pipe with burnt crack cocaine residue. P.L. §220.03. 2 However, just as a dish cooked in wine does not necessarily contain alcohol, burnt crack cocaine residue does not necessarily contain cocaine. People v. Riley, 136 Misc. 2d 968, 970 (Crim. Ct. Bx. Co. 1987) (residue in a glass pipe tested and found to contain “no controlled substance”). Whether it does or not, the physical characteristics of the residue are the same and cannot be distinguished by simple visual observation. Indeed, the People’s chemist in this case could not visually determine whether the burnt crack residue contained cocaine. She had to conduct a chemical test. If a trained and experienced chemist cannot visually identify the presence of cocaine, neither can a trained and experienced police officer. Without more, the visual observations of a trained and experienced police officer do not satisfy the pleading requirements set forth in C.P.L. §100.15(3). To be valid, the information must contain non-conclusory allegations establishing the two essential elements of the crime charged: (1) possession 2 The residue referred to in this case is the burnt residue left after the crack was inhaled not unused powdered cocaine left in a vial or glassine often inaccurately referred to as residue. See People v. Mizell, 72 N.Y. 2d 651, 653-54 (1988). 4 of a controlled substance and (2) appellant’s knowledge that he possessed a controlled substance. C.P.L. §100.15(3); P.L. §220.03; see People v. Kalin, 12 N.Y. 3d 225, 229 (2009). This Court in Kalin set forth the pleading requirements in a case charging a defendant with the possession of unused marijuana and heroin. These unused narcotics had distinguishable physical characteristics. Therefore, the training and experience of the police officer combined with his visual observations were sufficient to support the allegations in the information. Id. at 231. No field test or additional information was necessary. Id. In contrast, absent visible differences between burnt residue with cocaine and burnt residue without cocaine, the visually based allegations of a trained and experienced police office must be supported by a field test or additional facts explaining the officer’s conclusion that the residue contained cocaine. In addition, absent visible signs that cocaine is still present in the burnt residue, some circumstantial evidence of appellant’s knowledge that he possessed a controlled substance is necessary. See State v. Baker, 912 S. W. 2d 541, 545 (Mo. App. 1995)(knowledge not established where there was no visible cocaine in burnt crack residue in a glass pipe); see also People v. Mizell, 72 N.Y. 2d 651, 656 (1988)(visible unused cocaine powder cocaine in a vial supported an inference of knowledge). In this case, 5 the information based solely on the visual observations of a trained and experienced police officer did not establish a prima facie case of unlawful possession of cocaine. Therefore, the information was jurisdictionally defective. STATEMENT OF FACTS The Accusatory Instrument Appellant was charged with knowingly and unlawfully possessing cocaine contained in the burnt residue of a crack pipe. According to the accusatory instrument, the informant/officer observed appellant in possession of a quantity of “crack cocaine residue” in a glass pipe recovered from the ground next to appellant. The police officer states that she: [h]as had professional training as a police officer in the identification of crack cocaine residue, has previously made arrests for the criminal possession of crack cocaine residue, has previously seized crack cocaine residue that was determined to be such [. . . ] and the crack cocaine residue in this case possesses the same physical characteristics as the previously chemically identified crack cocaine residue, by professional training as a police officer familiar with the common methods of packaging crack cocaine residue and the glass pipe used to package the crack cocaine residue in this case is a commonly used method of packaging crack cocaine residue. 6 (App-5)(emphasis added). There is no allegation that the physical characteristics of the burnt residue in this crack pipe visually differed from burnt residue found not to contain cocaine. The Trial The People’s Case The People called two witnesses, Police Officer Lenita Harrison (App-14) and NYPD criminologist Wai Sze Au (App-45). At the time of trial, Officer Harrison had been in the NYPD for six years, had arrested 10 people for possession of a crack pipe and residue, and had never testified at trial (App-19, 22). She explained that on June 11, 2009, she was in uniform, in the passenger seat of a marked vehicle, with her partner Officer Chen, “driving around” the area because “it was a drug-prone location” (App-16, 16). Around 2:30 p.m., while driving in front of 1430 Bergen Avenue, she noticed appellant “walking down the stairwell” of the building (App-16). As appellant stood at the stairway, she “saw what appeared to be a glass pipe fall out of his hand onto the ground” (App-18). They stopped the car, got out, stopped appellant, picked up the pipe from the ground, arrested him, and handcuffed him (App-18). Officer Harrison estimated that the pipe was a “few inches” from appellant when she picked it up (App-18). Harrison testified that she did not see appellant engage in any exchange of money for 7 drugs (App-27). He did not run when he saw her but she was suspicious because it was in a drug-prone area and she saw him drop the pipe (App-27, 28). 3 On cross-examination, Officer Harrison admitted that even though she believed the residue in the pipe was crack cocaine, she knew from her training and experience that crack cocaine is not the only drug that leaves a residue in a pipe (App-38). Wai Sze Au, a chemist for the New York Police Department, tested the residue (App-51-52). She conceded that she could not determine whether the residue in the pipe had cocaine by simply looking at it (App-57). The prosecutor asked: “when you looked at the pipe, you couldn’t determine what was in the pipe just by looking at it? She answered “No” (App-57). She tested the residue and found that it contained cocaine (App-51, 58). At the end of the People’s case, the defense moved for a trial order of dismissal based on the absence of credible evidence to support the charges (App-61). The motion was denied (App-61). The Defense Case Appellant testified that on June 11, 2009, he did not possess or drop a crack pipe (App- 69). He admitted that 17 years earlier he had pleaded 3 While she testified on direct-examination that she saw appellant drop the pipe from 9 feet away, on cross-examination she recognized that she could have been mistaken (App-35). Looking at the photos of the scene, she estimated it was probably 15 feet (App-35). 8 guilty to attempted robbery in the second degree (App-62). On June 11, 2009, around 2:30 pm, he was in front of the Albany Houses at Troy and Bergen waiting for his friend Basir Mohamad (App-62). They planned to watch the basketball playoffs (App-71). At one point, appellant walked up the ramp of the building to check if his friend was arriving or had arrived (App-63). As he did so, he noticed a police cruiser arriving by the building (App-66). An officer came out of the driver seat and made a hand gesture to him to come over (App-67, 73). He complied (App-67). Moments later, he was handcuffed and under arrest and assumed it was for trespass (App-68). Asked to describe the scene, he said he was the only person by the building and that there was debris on the ground (App-73). At the end of the defense case, the prosecution turned over the SPRINT reports of appellant’s arrest (App-80). Counsel noted that the officer who radioed the arrest was a man, not a woman (App-80). Counsel explained that had she had the reports before the officer testified she would have questioned her further on that point (App-80). The court agreed to apply an adverse inference on the late disclosure of discoverable material (App-81). 9 Summations and Verdict In summation, the defense questioned the officer’s credibility as well as her opportunity to observe (App-85, 93). Counsel first argued that the People’s story was simply improbable (App-82). Had appellant had a crack pipe in his hand, he had no reason to drop it to the ground in front of the officers. On the contrary, that was a sure way to get the officers’ attention (App-83). The pipe was small he could have kept it in his hand (App-85). There was no lighter and no other evidence that the pipe had just been smoked; therefore, there would have been no reason for appellant to be holding it in his hand (App-85). Counsel also questioned the officer’s ability to observe a small, half-inch, translucent glass pipe, falling from appellant’s hand, from 15 feet away as the car was driving by the building (App-85). The prosecutor essentially argued that the officer saw what she saw. Whether she saw appellant from two or fifteen feet away made no difference (App-94). The officer had no reason to lie and appellant did (App-97). The prosecutor reminded the court twice that appellant had previously been convicted of attempted robbery (App-97-98). In the view of the prosecutor, if he was willing to rob someone 17 years earlier, he was willing to lie on the stand (App-98). 10 The court found appellant guilty of attempted criminal possession of a controlled substance in the seventh degree and sentenced him to 30 days or time served (App-99-100). The Appeal Appellant argued that the accusatory instrument was facially insufficient (Appellant Brief (“AB”) at 10-14). Appellant explained that to be jurisdictionally sufficient, the accusatory instrument had to (1) allege facts supporting or tending to support the charge providing reasonable cause to believe that the defendant committed the charged conduct; and (2) include non-hearsay factual allegations that, if true, establish every element of the offense charged. See C.P.L. §§ 100.15 (3) and 100.40 (4)(b). Conclusory allegations are insufficient. See People v. Dumas, 68 N.Y.2d 729 (1986). Appellant took the position that because burnt residue in a crack pipe looks the same whether it contains cocaine or not, the officer’s allegations should have been supported by a field test (AB at 11). Appellant argued that the pleading requirements in People v. Kalin, 12 N.Y. 3d 225 (2009), developed for alleged possession of unused drugs did not apply to burnt residue. Where the allegations involve unused drugs, the threshold factual allegations supporting the officer’s statement that drugs were actually present are irrelevant to burnt residue. 11 Unlike the unused marijuana and heroin recovered in Kalin with their distinct visual characteristics, burnt residue looks the same whether or not it contains cocaine. The officer’s training and experience in drug packaging, relevant in Kalin, was irrelevant in cases involving burnt residue since burnt residue is not packaged. Packaging is meaningful when the drugs are unused and to be sold because it indicates the amount to be sold, the price and often identifies the drug itself. The glass pipe containing residue is a dispensing instrument, not a package. Finally, the officer’s allegations that the residue had the same physical characteristics as residue recovered in previous crack cocaine residue arrests are meaningless because burnt residue has the same characteristics whether or not it contains cocaine. The Kalin pleading requirements do not apply to burnt residue. Allegations of possession of cocaine in the burnt crack residue of a glass pipe are conclusory absent a field test (AB at 12-13). The People disagreed claiming that there was no evidence to support the argument that residue may or may not contain cocaine or a controlled substance (Respondent Brief at 10-22). The Appellate Term found that the sworn allegations of the officer were sufficient to satisfy the requirements of an information (App-4). 12 ARGUMENT SINCE THE BURNT CRACK RESIDUE LEFT IN A GLASS PIPE CONTAINING COCAINE IS VISUALLY INDISTINGUISHABLE FROM BURNT CRACK RESIDUE WITHOUT COCAINE, AN INFORMATION ALLEGING KNOWING POSSESSION OF CRACK COCAINE RESIDUE BASED SOLELY ON THE VISUAL OBSERVATIONS OF A TRAINED AND EXPERIENCED POLICE OFFICER IS CONCLUSORY AND HENCE JURISDICTIONALLY INVALID, MANDATING DISMISSAL OF THE CHARGES. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, §6. To be valid, the information had to provide sufficient facts to allege that (1) the burnt residue contained a controlled substance, i.e. cocaine, and (2) that appellant knew the burnt residue still had cocaine. Because the information was based solely on the visual observations of a trained and experienced police officer, it failed to do so. Indeed, like wine used in cooking does not result in a dish containing alcohol, burnt residue of crack cocaine does not necessarily contain cocaine. Whether it does or not, burnt crack residue with cocaine is visually indistinguishable from burnt crack residue without cocaine. In this case, the People’s chemist conceded that she could not visually distinguish burnt residue in a crack pipe with or 13 without cocaine. She had to perform a chemical test. If the trained and experienced chemist could not visually identify the burnt residue as containing cocaine, neither could the trained and experienced arresting police officer. The allegations in the information had to be supported by a field test or other factual basis to properly allege possession of a controlled substance. In addition, in the absence of visible drugs or visual characteristics distinguishing burnt residue with and without cocaine, the allegations failed to plead that appellant knew the burnt residue contained cocaine. Because the allegations were based solely on the visual observations of a police officer, they were conclusory and insufficient to establish a prima facie case of unlawful possession of a controlled substance. The information was jurisdictionally invalid, the judgment must be reversed and the charges dismissed. C.P.L §§100.15 and 100.40; see People v. Kalin, 12 N.Y.3d 225 (2009). A valid and sufficient accusatory instrument such as a misdemeanor information is a non-waivable jurisdictional prerequisite to a prosecution in criminal court. People v. Alejandro, 70 N.Y. 2d 133 (1987). To be a valid, the information must contain an accusatory part and a factual part. C.P.L. 14 §100.15(2)(3). 4 The factual part must allege non-hearsay allegations that establish, if true, every element of the offense charged and the defendant’s commission thereof. C.P.L. §100.40(1)(c). This is referred to as the prima facie case. People v. Suber, 19 N.Y. 3d 247, 251 (2012); see People v. Jones, 9 N.Y. 3d 259, 261-62 (2007). Here, the information did not plead a proper prima facie case of unlawful possession of cocaine. 1. The visually based allegations of unlawful possession of cocaine in the burnt residue were conclusory. While sufficiently detailed visual observations of a trained and experienced police officer are sufficient to support a charge of possessing unused visually identifiable drugs, People v. Kalin, 12 N.Y. 2d 3d 225, 228, 231 (2009), more is needed when charging possession of cocaine in burnt crack residue because burnt crack residue with cocaine is visually indistinguishable from burnt residue without cocaine. This Court in Kalin set the pleading requirements of an accusatory instrument charging a defendant with the unlawful possession of unused drugs and specifically marijuana and heroin. The requirements are based on the premise that unused heroin and marijuana are visually distinguishable and that a trained and experienced officer can identify the drugs by simple 4 The accusatory part tracks the language of the Penal Law section at issue and is not at issue in this case. C.P.L. §100.40(2). 15 visual observations. In Kalin, the officer stated that he had prior experience in drug cases and “training in the identification and packaging of controlled substances.” He recognized the distinct physical characteristics of marijuana and heroin. He also recognized their packaging, respectively, one ziplock bag and nine separate plastic bags. He recovered a marijuana pipe containing marijuana and drug paraphernalia kept in closed compartments not open to public view. Id. at 229-3. The visual clues in Kalin, when observed by a trained and experience police officer, were sufficient to support the allegations of unlawful drug possession and did not require a field test. Without more, the visual observations of the trained and experienced police officer in this case were insufficient. Kalin does not govern because there are no visual clues distinguishing burnt crack residue with and without cocaine. Crack cocaine is made by mixing powdered cocaine with water and baking soda to create a paste. Inciardi, James A, Beyond Cocaine: Basuco, Crack and Other Coca Products, 14 Contemp. Drug Problems: Fall 1987. Federal Legal Publications, inc. at 461, 468-69 (1987)(App-119-20). 5 The paste is then heated and the fluid evaporates leaving a crystalline form of cocaine. A user will place these crystals in a pipe, heat the pipe, and inhale 5http://heinonline.org.ez.lib.jjay.cuny.edu/HOL/Page?handle=hein.journals/condp14&col lection=journals475&id=475> 16 the vaporized cocaine. The burnt residue left in the pipe is a black gummy substance. Id. Often, there is no visible sign of the presence of a controlled substance in the burnt residue. See State v. Baker, 912 S. W. 2d 541, 545 (Mo. App. 1995)(no visible drugs in burnt crack cocaine residue); People v. Melendez, 225 Cal. App. 2d 67, 73 (Cal. App. 1 st Div. 1964)(no visible signs of marijuana in burnt marijuana residue); People v. Aguilar, 223 Cal. App. 2d 119, 123 67, 73 (Cal. App. 2d Div. 1963)(no visible sign of heroin burnt heroin residue). Scientific testing has proven to be difficult but it is clear that “what remains in the pipe, and what is destroyed vary greatly with the smoking conditions encountered with various smoking apparatus.” Jones, Reese T., (1990) eds. C. Nora Chiang, Ph.D., Richard L. Hawks, Ph.D.) NIDA Research Monograph 99 (Research Findings on Smoking of Abused Substances), 1990, p. 30-41)(App-110). 6 Just as the alcohol contained in wine added to a recipe burns out during the cooking process, cocaine in crack can burn out during the smoking process. See People v. Riley, 136 Misc. 2d 968, 969 (Crim. Ct. Bx. Co. 1987). In Riley, drugs and drug paraphernalia were recovered and the burnt residue in a glass pipe tested “no controlled substance,” confirming 6 http://druglibrary.net/schaffer/cocaine/cokesmoke.htm. 17 that cocaine may burn out during the smoking process. The People’s trained and experienced chemist could not, through normal visual observation, distinguish burnt crack residue with cocaine in a pipe from burnt crack residue without cocaine in a pipe. If the trained and experienced chemist could not see the difference, the trained and experienced arresting officer could not either and the allegations in the information based solely on her visual observations were insufficient. The information alleges that the officer “had previously made arrests for the criminal possession of crack cocaine residue, has previously seized crack cocaine residue that was determined to be such [. . . ] and the crack cocaine residue in this case possesses the same physical characteristics as the previously chemically identified crack cocaine residue.” (App-5). These allegations are meaningless because the crack cocaine residue looks exactly the same whether or not it contains cocaine. While the burnt crack residue in this case looked like burnt crack residue containing cocaine in another case, it also looked like burnt crack residue without cocaine. The officer’s experience and training provided no factual basis to draw the conclusion that cocaine was present in the burnt residue in the crack pipe. Significantly, the information contains no allegation from the officer that the burnt residue present in this case differed visually in any way from burnt 18 residue subsequently found not to contain a controlled substance. Because of the lack of physical characteristics distinguishing burnt residue with cocaine and without, the allegations of unlawful possession of crack cocaine residue based solely on the visual observations of a trained and experienced officer were conclusory and did not establish a prima facie case. 2. The allegations that appellant knew the burnt residue contained cocaine were also conclusory. The information alleged no circumstantial evidence from which to infer that appellant knew the burnt crack residue in the pipe still contained cocaine. There was no visible cocaine, at least none that could be seen by a chemist. Appellant did not make any statement from which to infer knowledge or engage in conduct suggesting he knew there was cocaine left in the burnt residue. Knowledge may be proven circumstantially. People v. Reisman, 20 N.Y. 2d 278, 285-87 (1971)(possession of 46 pounds of packaged unused marijuana is sufficient to prove knowledge). It can be inferred from the visible presence of the drugs. See People v. Mizell, 72 N.Y. 2d 651, 656 (1988). In Mizell, the Court found that the unused cocaine residue left on the sides of a vial in defendant’s possession was sufficient to prove knowledge because the unused remnants of the controlled substance were visible. Id. at 653. A number of jurisdictions have held that in the absence 19 of visible drugs in the residue, knowledge has not been established. See State v. Baker, 912 S. W. 2d 541, 545 (Mo. App. 1995)(no visible drugs in burnt crack cocaine residue); People v. Melendez, 225 Cal. App. 2d 67, 73 (Cal. App. 1 st Div. 1964)(burnt marijuana residue); People v. Aguilar, 223 Cal. App. 2d 119, 123 67, 73 (Cal. App. 2d Div. 1963)(burnt heroin residue). Baker involved the possession of burnt residue in a crack pipe with no evidence of visible cocaine. The court found that "[t]he minimal amount of burnt residue present on the pipe indicated only that it had been used to smoke cocaine in the past.” It could not serve as a basis for finding the defendant in current knowing possession of the drug. 912 S.W. 2d at 545. Aguilar involved the possession of burnt heroin residue in a spoon. The court held that “the presence of the narcotic must be reflected in such a form as reasonably imputes knowledge to the defendant. Without chemical testing, it was not possible to detect the presence of heroin, therefore, knowledge had not been proven. 223 Cal. App. 2d at 123. Finally, in Melendez, the defendant was accused of possessing a pipe with a "gummy material” and some ash. Chemical testing of the burnt residue "scraped from the bowl of the pipe” found the presence of active ingredients from marijuana. In that case, the question was whether the possession of a smoking pipe from which a gummy black material extracted” tested positive 20 to active marijuana ingredients constituted knowing possessions of the material. 225 Cal. App. 2d at 73. The answer was no. Following Aguila, the court held that the presence of the narcotic must be reflected in such a form as reasonably imputes knowledge to the defendant. In this case, the People’s chemist admitted that there was no visible narcotic in the residue. No other circumstantial evidence was alleged from which to infer appellant’s knowledge. There was no evidence that appellant ran away or was in anyway uncooperative. There was no evidence that appellant was seen smoking the pipe. There was no allegation that appellant made any statement from which to infer knowledge. The allegation that he dropped the pipe does not support the inference that he knew there was cocaine in the residue. It may support an inference that he believed possession of a crack pipe is illegal, not that it contains cocaine. Under these circumstances, the allegations in the information did not set forth a prima facie case of a seventh degree criminal sale of a controlled substance. The accusatory instrument is jurisdictionally insufficient warranting dismissal. 21 CONCLUSION FOR THE REASONS STATED ABOVE, THE CONVICTION FOR ATTEMPTED CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE SEVENTH DEGREE, MUST BE REVERSED AND THE CHARGE DIMISSED. Respectfully Submitted, STEVEN BANKS Attorney for Defendant-Appellant NATALIE REA Of Counsel December 2012 CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR §670.l0.3(f) ___________________________________________________________-_ X THE PEOPLE OF THE STATE OF NEW YORK, : - ¢ Respondent, vs. ROOSEVELT JENNINGS, Defendant-Appellant. . _____________________________________________________________ X The foregoing brief was prepared on a computer. A proportional typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line Spacing: Double The number of Words in the brief, inclusive of point headings and footnotes and exclusive of pages containing table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules and regulations, etc., is 4264. rte,Ff i Natalie Rea 22