The People, Respondent,v.Roosevelt Jennings, Appellant.BriefN.Y.Dec 5, 2013 To be argued by NATALIE REA NEW YORK SUPREME COURT APPELLATE TERM — 2ND, 11TH AND 13TH JUDICIAL DISTRICTS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, Docket No. 2009KN046172 -against- Kings County ROOSEVELT JENNINGS, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT STEVEN BANKS Attorney for Defendant- Appellant THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street - 5 th Floor New York, N.Y. 10038 (212) 577-3403 NATALIE REA Of Counsel i TABLE OF CONTENTS STATEMENT PURSUANT TO RULE 5531 ................................................1 PRELIMINARY STATEMENT .....................................................................2 QUESTIONS PRESENTED ...........................................................................2 INTRODUCTION ...........................................................................................3 STATEMENT OF FACTS..............................................................................5 The Charges...........................................................................................5 The Trial ................................................................................................6 The People’s Case.......................................................................6 The Defense Case........................................................................8 Summations and Verdict .......................................................................9 ARGUMENT POINT I SINCE SUSPECTED CRACK-COCAINE RESIDUE MAY NOT CONTAIN COCAINE, AN ACCUSATORY INSTRUMENT CHARGING POSSESSION OF CRACK-COCAINE RESIDUE IS FACIALLY INSUFFICIENT IF IT IS NOT SUPPORTED BY A POSITIVE FIELD OR LABORATORY TEST. U.S. CONST., AMENDS. IV, XIV; N.Y. CONST., ART. I, §6.. .......................................................................................................10 POINT II THE CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE WHERE THE ONLY EVIDENCE CONNECTING APPELLANT TO THE USED AND COLD CRACK PIPE WAS THE TESTIMONY OF THE ii OFFICER WHO, FROM HER CAR, AND 15 FEET AWAY, CLAIMED TO HAVE SEEN APPELLANT DROP THE PIPE FROM HIS HAND WHEN SHE WAS LOOKING AT HIS EYES. U.S. CONST., AMENDS. IV, XIV; N.Y. CONST., ART. I, §6. ..................................................14 CONCLUSION..............................................................................................17 1 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2 ND , 11 TH and 13 TH JUDICIAL DISTRICTS ---------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : ROOSEVELT JENNINGS, : Defendant-Appellant. : ---------------------------------------------------------------------X STATEMENT PURSUANT TO RULE 5531 1. The docket number in the court below was 2009KN046172. 2. The full names of the original parties were the People of the State of New York against Roosevelt Jennings. There has been no change of parties on this appeal. 3. This action was commenced in the Criminal Court, Kings County. 4. This action was commenced by the filing of a complaint. 5. This appeal is from a judgment convicting appellant, after trial, of attempted criminal possession of a controlled substance in the seventh degree (P. L. §§220.03 and 110) 2 6. This is an appeal from a judgment of conviction rendered July 13, 2009 (Hong, J.). 7. Appellant has been granted permission to appeal as a poor person on the original record. The appendix method is not being used. PRELIMINARY STATEMENT This is an appeal from a judgment of the Criminal Court, Kings County, rendered July 13, 2009, convicting appellant, after a bench trial, of attempted criminal possession of a controlled substance in the seventh degree (P. L. §220.03) and sentencing him to a definite term of imprisonment of 30 days (Hong, J., at hearing, trial, and sentence). The notice of appeal was timely filed and this Court, on September 2, 2009, granted appellant leave to appeal as a poor person on the original record and typewritten briefs and assigned Steven Banks of The Legal Aid Society as counsel on appeal. Appellant has served his sentence. QUESTIONS PRESENTED 1. Whether since suspected crack-cocaine residue may not contain cocaine, an accusatory instrument charging possession of crack-cocaine residue is facially insufficient if it is not supported by a positive field or laboratory test? 3 2. Whether the conviction is against the weight of the evidence where the only evidence connecting appellant to the used and cold crack pipe was the testimony of the officer who, from her car, and 15 feet away, claimed to have seen appellant drop the pipe from his hand when she was looking at his eyes? INTRODUCTION Appellant was convicted after a bench trial of attempted criminal possession of a controlled substance in the seventh degree. On June 11, 2009, at 2:30 pm, on Bergen Street, in front of the Albany Houses, appellant was arrested after allegedly dropping a crack pipe with “residue” from his hand. The accusatory instrument charging him with criminal possession of stolen property did not include a field or other laboratory test. It relied solely on the statement of the arresting officer and her professional training in “the identification of crack cocaine residue, ” her prior arrests involving possession of “crack cocaine residue, ” her knowledge of the “physical characteristics of crack cocaine residue,” and her familiarity with the “common methods of packaging crack cocaine residue.” At trial, the chemist testified that 60% of the samples she has tested did not contain cocaine and that an unknown percentage contains no 4 narcotics at all. Unlike the identification of drugs that have not yet been used and which have distinct characteristics such as packaging, color, smell, and/or texture, crack-cocaine residue looks the same whether or not it contains narcotics. The only way to know if the residue contains narcotics is to conduct a field test or other scientific test. Without such a test, the person may only be charged with possession of drug paraphernalia. In this case, the charges must be dismissed because the accusatory instrument was jurisdictionally defective and because the verdict based entirely on the questionable testimony of Officer Harrison was against the weight of the evidence. She simply could not have seen what she claimed to have see. From her car, 15 feet away, she could not plausibly have seen appellant’s hand – two feet from the ground open and drop a half-inch translucent crack pipe. It was a drug-prone area and anyone could have dropped the pipe she recovered. STATEMENT OF FACTS The Charges Appellant was charged with knowingly and unlawfully possessing a controlled substance. According to the accusatory instrument, the informant observed appellant in possession of a quantity of “crack cocaine residue” in 5 a glass pipe recovered from the ground next to appellant. According to the complaint, the informant: Has 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. (Complaint). The Trial The People’s Case The People called two witnesses, Police Officer Lenita Harrison (Harrison 9) and N.Y.P.D. criminologist Wai Sze Au (Au 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 (Harrison 14, 17). She explained that on June 11, 2009, she was in uniform, in the passenger seat of a marked vehicle, with her partner Officer 6 Chen, “driving around” the area because “it was a drug-prone location” (Harrison 10-11). Around 2:30 p.m., while driving in front of 1430 Bergen Avenue, she noticed appellant “walking down the stairwell” of the building (Harrison 11). As appellant stood at the stairway, she “saw what appeared to be a glass pipe fall out of his hand onto the ground“ (Harrison 13). They stopped the car, got out, stopped appellant, picked up the pipe from the ground, arrested him, and handcuffed him (Harrison 13). Officer Harrison estimated that the pipe was a “few inches” from appellant when she picked it up (Harrison 13). Harrison testified that she did not see appellant engage in any exchange of money for drugs (Harrison 22). He did not run (Harrison 22). She was suspicious because it was in a drug-prone area and she saw him drop the pipe (Harrison 23). 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 (Harrison 30). Looking at the photos of the scene, she estimated it was probably 15 feet (Harrison 30). 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 7 residue in a pipe (Harrison 33). Notably, according to Au, the NYPD chemist, in the six years since she has been at the NYPD she has tested samples that did not contain any narcotics and the samples she has tested only contained cocaine in 40% of cases (Au 46). The residue in the glass pipe recovered on the ground by Officer Harrison contained cocaine (Au 51). 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 (61). The motion was denied (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 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 8 him to come over (App. 67, 73). He complied (App. 67). Moments later, he was handcuffed and under arrest (App. 68). He assumed it was for trespass (App. 68). Asked to describe the scene, he said he was the only person by the building at that place 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). Counsel asked for, and the People agreed to, the court applying an adverse inference on the late disclosure of discoverable material (App. 81). Summations and Verdict In summation, the defense questioned the officer’s credibility as well as her opportunity to observe (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 (83). The pipe was small he could have kept it in his hand (85). There was no lighter and no other evidence that the pipe had just been smoked; therefore, there 9 would have been no reason for appellant to be holding it in his hand (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 (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 (94). The officer had no reason to lie and appellant did (97). The prosecutor reminded the court twice that appellant had previously been convicted of attempted robbery (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 (98). The court considered the evidence and found appellant guilty of attempted criminal possession of a controlled substance in the seventh degree (99). The court then sentenced him to 30 days or time served (100). 10 ARGUMENT POINT I SINCE SUSPECTED CRACK-COCAINE RESIDUE MAY NOT CONTAIN COCAINE, AN ACCUSATORY INSTRUMENT CHARGING POSSESSION OF CRACK-COCAINE RESIDUE IS FACIALLY INSUFFICIENT IF IT IS NOT SUPPORTED BY A POSITIVE FIELD OR LABORATORY TEST. U.S. CONST., AMENDS. IV, XIV; N.Y. CONST., ART. I, §6. The accusatory instrument in this case charged appellant with the possession of a used crack pipe with “crack cocaine residue.” The Court of Appeals, in People v. Kalin, 12 N.Y. 3d 225 (2009), held that an accusatory instrument charging a defendant with the possession of unused narcotics could be facially sufficient even without a supporting field test. Kalin did not address the facial sufficiency of an accusatory instrument charging the defendant with possession of residue or left-overs that may or may not contain cocaine. Because suspected crack-cocaine residue may or may not contain cocaine and because it has the same color, consistency, and smell, whether or not it does, and because it does not have “packaging” establishing the presence of cocaine, the accusatory instrument charging a 11 person with the possession of residue must be supported by a positive field, or other, test showing that it contains cocaine. No such test was provided in this case and therefore, the conviction must be reversed and the charges dismissed. U.S. Const., Amends. IV, XIV; N.Y. Const., Art. I, §6. To be jurisdictionally sufficient an accusatory instrument must (1) allege facts supporting or tending to support the charge; (2) provide reasonable cause to believe that the defendant committed the charged conduct; and (3) include non-hearsay factual allegations that, if true, establish every element of the offense charged. See C.P.L. §§ 100.15 (3), 100.40 (4)(b). Conclusory allegations are insufficient. See People v. Dumas, 68 N.Y.2d 729 (1986). Until 2009, courts generally held that a misdemeanor complaint charging possession of a controlled substance or marijuana could not be converted to an information without an attached certified laboratory testing or field test report finding that the substance was drugs. See Matter of Jahron S., 79 N.Y.2d 632, 640 (1992). In 2009, the Court of Appeals held that an information can meet the facial sufficiency requirements by means of evidentiary allegations other than a positive laboratory or field test of the substance. People v. Kalin, 12 N.Y.3d 225, 230-32 (modifying Jahron S., 79 N.Y.2d at 640). However, the 12 case involved a charge of possessing unused or to-be-used drugs: unused marijuana and heroin. While the Court recognized that attaching a laboratory testing report to the instrument is the “safer practice,” where certain other facts are pleaded, a field test is not required. Kalin established the minimum factual allegations necessary in a case involving the possession of drugs to be sold or to be used. The threshold was satisfied where the police officer must allege that (1) he had observed both marijuana and heroin; (2) the substances were packaged, respectively, in one ziplock bag and nine separate plastic bags; (3) he recovered a marijuana pipe containing marijuana; (4) he found the substances and the drug paraphernalia in closed compartments not open to public view; (5) his conclusions that the items were drugs were based upon his prior experiences as a police officer in drug cases; and (6) his conclusions were based upon his prior “training in the identification and packaging of controlled substances and marijuana.” See id. at 229-31. The Court specifically stated that it was the presence of all these factual allegations that was essential to finding a prima facie case that the particular substances were actually heroin and marijuana. See id. at 231 Anything less than the combination of factual allegations that was contained 13 in that accusatory instrument would NOT meet the prima facie case requirement for an information. The factual allegations in this case would not satisfy Kalin even if Kalin applied to the alleged possession of left-overs after the drugs have been used. Unlike the unused marijuana and heroin recovered in Kalin with their distinct visual characteristics, “residue” looks the same whether or not it contains cocaine. Similarly, post-use marijuana residue looks like ash whether it still contains marijuana or not. The officer’s training and experience in drug packaging is irrelevant to the container of used narcotics. The packaging is meaningful when the drugs are to be sold. The packaging indicates the amount to be sold and the price and often identifies the drug itself. For the officer to refer to the common way of packaging residue has no meaning. Residue is not packaged. It is found in pipes or syringes or other instrument of use. The instrument used is not packaging. While the officer claimed that the residue had the same characteristics as residue recovered in her prior 10 arrests for residue, it also had the same characteristics as residue no longer contains/without narcotics. The facial sufficiency of the accusatory instrument is of utmost importance in misdemeanor cases such as this where 14 defendants are tempted to plead guilty to dispose of the case and avoid further incarceration. Therefore, the accusation must be based on reliable support and the only reliable support is a field or other laboratory test. POINT II THE CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE WHERE THE ONLY EVIDENCE CONNECTING APPELLANT TO THE USED AND COLD CRACK PIPE WAS THE TESTIMONY OF THE OFFICER WHO, FROM HER CAR, AND 15 FEET AWAY, CLAIMED TO HAVE SEEN APPELLANT DROP THE PIPE FROM HIS HAND WHEN SHE WAS LOOKING AT HIS EYES. U.S. CONST., AMENDS. IV, XIV; N.Y. CONST., ART. I, §6. In this case, a used and cold glass pipe was recovered from the ground of a drug-prone building. The only connection between the recovered item and appellant was the testimony of Officer Harrison. She testified that she saw appellant looking at her and at the same time saw him drop the glass pipe from his hand. Unless he was waiving the pipe in front of his face, she could not have seen both his eyes and his hand. She certainly could not have seen both from her car 15 feet away. The notion that appellant would be holding a cold crack pipe in his hand and that he would drop it when he saw 15 the police defies any possible logic. The officer’s credibility is questionable at best and certainly, without more, renders the verdict against the weight of the evidence. Under C.P.L. §470.15, this Court may conduct a weight of the evidence review. In such review, the court sits as a thirteenth jury. People v. Bleakley, 69 N.Y. 2d 490 (1987). It must determine first “whether an acquittal would not have been unreasonable. If so, the Court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions.” People v. Danielson, 9 N.Y. 3d 342 (2007). The Court must then decide whether the finder of fact was justified in finding the defendant guilty beyond a reasonable doubt. Id. In this case, an acquittal would certainly not have been unreasonable. Appellant was arrested in a drug-prone area. The officers were canvassing the area because it was a drug-prone area. Appellant drew the officer’s attention because it was a drug-prone area. Officer Harrison picked up a used crack pipe from the ground. There was no evidence that it had just been used and no evidence that appellant had been using it. 16 The People connected appellant to the pipe through the testimony of officer Harrison whose testimony strains credulity. The crack pipe was half- an-inch long. It was glass and translucent. It easily fit in the palm of a hand. The officer was in a car. Appellant was 15 feet away from the officer. She said that he looked at her. If she saw him looking at her she was not looking at his hand. Appellant was described as 5’8”. He was not dangling the glass pipe in front of his face. According to the officer, he simply opened his hand and the pipe fell. If he was 5’8”, his hand was probably two feet from the ground. She was 15 feet away looking at him in the eyes, the likelihood of her seeing him drop anything let alone a translucent half-inch pipe is virtually non-existent. In addition, it is difficult to accept that appellant would have a cold glass pipe in his hand and that he would drop it in front of the police. There is no reason to carry a crack pipe in one’s hand unless the person is about to use it or has just used it. A person would no more carry a cold and used crack pipe in their hand than they would a cigarette butt. As counsel argued, appellant could have hidden the crack pipe anywhere; in his pocket, or even just in his hand. The evidence points to a different story. Appellant, a young black man, was standing in front of a building in a drug-prone area. 17 The police were immediately suspicious. They walked up to him, saw a crack pipe on the ground in the debris and accused him of possessing the pipe and residue. In light of the questionably reliable testimony of Officer Harrison and the implausibility of her story, the verdict is against the weigt of the evidence. The judgment must be reversed and the charges dismissed. CONCLUSION FOR THE REASONS STATED ABOVE, THE CONVICTION MUST BE REVERSED AND THE CHARGES DISMISSED. Respectfully submitted, STEVEN BANKS Attorney for Defendant- Appellant NATALIE REA Of Counsel February 2011 CERTIFICATE OF COMPLIANCE Pursuant to 22 N.Y.C.R.R. §670.10(3)(f) The foregoing brief was prepared on a computer. A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point Size: 14 Line Spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, proof of service, and certificate of compliance, is 3,360.