The People, Respondent,v.Roosevelt Jennings, Appellant.BriefN.Y.December 5, 2013THE LEGAL AID SOCIETY March 25,2013 VIA EXPRESS MAIL Hon. Jonathan Lippman Chief Judge Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Re: People v. Roosevelt Jennings Rule 500.11 Submission Your Honor: Criminal Appeals Bureau 199 Water Street New York, NY 10038 Tel: 212-577-3403 www.legal-aid.org Blaine (Fin) V. Fogg President steven Banks Attome,Y"'-ill-Chiej SeymourW. James,Jr. Attorney-in-Charge Criminal Practice This letter is submitted pursuant to section 500.11 of the Court's Rules of Practice. It supplements the arguments appellant made in his Appellate Term briefs. The issue before this Court involves the facial sufficiency of the allegations in the accusatory instrument charging appellant with seventh-degree criminal possession of a controlled substance for knowingly possessing cocaine contained in the burnt residue of a crack pipe. Because burnt residue does not always contain crack cocaine and because there is no visible physical characteristics distinguishing residue with and without cocaine, allegations of constructive possession of a pipe with residue is insufficient to allege knowing possession of cocaine. STATEMENT OF FACTS The Accusatory Instrument In the accusatory instrument, the informant/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. (App-5). In addition, the informant "observed the defendant in possession of a quantity of crack cocaine residue which informant recovered from the ground where informant observed defendant drop it." Id. There is no allegation that the physical characteristics of the burnt residue in this crack pipe differed visually 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 with 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 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).1 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 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). 2 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 guilty to attempted robbery in the second degree (App-62). On June 11, 2009, around 2:30 p.m., 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 for what he assumed was 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). 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 to the Appellate Term 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. 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 3 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 mayor 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-t). The Appeal to the Court of Appeals A brief summary of the unusual procedural history of this appeal may be helpful. Appellant sought leave to appeal to the Court of Appeals presenting the following novel question: whether the standard for evaluating the sufficiency of an accusatory instrument set forth in People v. Kalin, 12 N.Y. 3d 225 (2009), in a case involving the criminal possession of "unused" narcotics, applies to the criminal possession of used narcotics otherwise known as "residue"? Indeed, possession of a crack pipe with residue containing traces of cocaine is a crime if it is knowing possession; possession of a crack pipe with residue not containing traces of cocaine is not a Crime. Because there is no evidence that different "residues" have different physical characteristics that can be observed, even by a trained officer, an accusatory instrument charging a person with criminal possession of residue regardless of its container requires a laboratory test or, at least, a field test. Appellant's application for leave to appeal was assigned to the Honorable Robert S. Smith who held a leave conference. The leave conference focused on the presence or absence of crack cocaine in the burnt residue contained in a crack pipe and the impact on the facts necessary to allege seventh degree criminal possession of cocaine including the facts necessary to allege the defendant's knowledge. On June 27, 2012, the Honorable Robert S. Smith issued a certificate granting leave. In his brief to the Court of Appeals filed December 21, 2012, appellant argued that the accusatory instrument was facially insufficient because absent visible physical differences between burnt residue with and without cocaine, the allegation by the police officer was insufficient to establish both appellant's knowledge and possession of crack cocaine. On February 23, 2013, before the People's answer was scheduled to be fiied, the District Attorney's Office informed my office that a laboratory report showing the presence of cocaine in the residue had been filed with the trial court on June 17,2009 (App-144-49). The information rendered appellant's challenge to the sufficiency of the officer's allegations that cocaine was still present in the residue unsustainable. Appellant asked to withdraw his brief and file a replacement brief addressing only the sufficiency of the allegations that appellant knew cocaine remained in the burnt residue. 4 2 As per the court's instructions, the sufficiency of the allegations that appellant knew cocaine remained in the burnt residue is being addressed in this letter. ARGUMENT SINCE BURNT CRACK RESIDUE LEFf IN A GLASS PIPE CONTAINING COCAINE IS VISUALLY INDISTINGUISHABLE FROM BURNT CRACK RESIDUE WITHOUT COCAINE, ALLEGATIONS OF POSSESSION OF THE CRACK PIPE WITH RESIDUE IS LEGALLY INSUFFICIENT TO ESTABLISH APPELLANT'S KNOWLEDGE THAT HE POSSESSED COCAINE, RENDERING THE ACCUSATORY INVALID AND MANDATING DISMISSAL OF THE CHARGES. To be valid, the information in this case 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. Just as wine used in cooking does not necessarily 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 at trial that she could not visually distinguish burnt residue in a crack pipe with or 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 appellant. In the absence of visible drugs or visual characteristics distinguishing burnt residue with cocaine from burnt residue without cocaine, the allegations failed to plead that appellant knew the burnt residue contained cocaine. 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 is a non-waivable jurisdictional prerequisite to a prosecution in criminal court. People v. Alejandro, 70 N.Y. 2d 133 (1987). To be valid, the information must contain an accusatory part and a factual part. C.P.L. §100.15(2)(3).2 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(I)(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. Knowledge may be proven circumstantially. People v. Reisman, 20 N.Y. 2d 278,285- 87 (I971)(possession of 46 pounds of packaged unused marijuana is sufficient to prove knowledge). Knowledge 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 - white powder -- remnants of the controlled substance were visible. Id. 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). 5 at 653. Mizell, however, did not address the sufficiency of the allegations when the charges involve possession of burnt residue. A number of jurisdictions have addressed the issue and have found that in the absence 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, 1st 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, like this case, 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 to active marijuana ingredients constituted knowing possession 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. 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).3 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 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. l " 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 in 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. 3 http://heinonline.org.ez.1ib. jjay.cuny.eduIHOUPage?handle=hein. journals/condp14&collection=journa ls475&id-475> 6 Hawks, Ph.D.) NIDA Research Monograph 99 (Research Findings on Smoking of Abused Substances), 1990, p. 30-41)(App-110).4 Just as the alcohol contained in wine added to a recipe burns out during the cooking process, cocaine in crack can bum 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 that cocaine may burn out during the smoking process. In this case, the People's chemist admitted at trial that there was no visible narcotic in the residue. 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 invisible 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. Respectfully submitted, NATALIE REA Associate Appellate Counsel 212-577-3403 cc: 4 Hon. Charles J. Hynes Kings County District Attorney Renaissance Plaza 350 Jay Street Brooklyn, New York 11201-2908 Attn: A.D.A Marie John-Drigo http;lldruglibrarv.netlschafferlcocainelcokesmoke.htm. 7