field test in New York

2008There appears to be a split in reported trial court level decisions as to whether or not a trained police officer’s testimony that a substance is marihuana, without the benefit of a field test, is legally sufficient evidence to convert a misdemeanor complaint into an information (People v McGriff, 139 Misc 2d 361 [Crim Ct, NY County 1988] [police officer testimony insufficient]; People v Harvin, 126 Misc 2d 775 [Crim Ct, Bronx County 1984] [police officer testimony insufficient]; People v Escalera, 143 Misc 2d 779 [Crim Ct, NY County 1989] [detailed police officer testimony probably sufficient

2000(Compare, e.g., People v Escalera, 143 Misc 2d 779 [Crim Ct, NY County 1989] [holding that a misdemeanor complaint was converted into an information upon the filing of a field test report showing the presence of marihuana, where the modified Duquenois-Levine field test used was established to be highly reliable], with People v Brightman, 150 Misc 2d 60 [Dist Ct, Nassau County 1991] [holding that the filing of a field test report showing the presence of cocaine was not sufficient to convert a misdemeanor complaint into an information].) Two decisions of the New York Court of Appeals, which post

2012Marquez was “[a]t the top of the hierarchy”; his associates called him “Boss”; “[o]n a continuing basis he set the goals, policies and strategies of the organization”; and the operation of each gambling spot was “centralized under his direction.” Here, as in Western Express, there is “no proof of concerted activity from which a petit jury might reasonably have gathered that the appellants were knowing participants in the affairs of a ‘criminal enterprise.’ ” ( 19 NY3d at 660 .) Defendant Rancharla asserts, and we concur, that the People failed to introduce any evidence that Rancharla knew that

2012Marquez was “[a]t the top of the hierarchy”; his associates called him “Boss”; “[o]n a continuing basis he set the goals, policies and strategies of the organization”; and the operation of each gambling spot was “centralized under his direction.” Here, as in Western Express, there is “no proof of concerted activity from which a petit jury might reasonably have gathered that the appellants were knowing participants in the affairs of a ‘criminal enterprise.’ ” ( 19 NY3d at 660 .) Defendant Rancharla asserts, and we concur, that the People failed to introduce any evidence that Rancharla knew that

2008There appears to be a split in reported trial court level decisions as to whether or not a trained police officer’s testimony that a substance is marihuana, without the benefit of a field test, is legally sufficient evidence to convert a misdemeanor complaint into an information (People v McGriff, 139 Misc 2d 361 [Crim Ct, NY County 1988] [police officer testimony insufficient]; People v Harvin, 126 Misc 2d 775 [Crim Ct, Bronx County 1984] [police officer testimony insufficient]; People v Escalera, 143 Misc 2d 779 [Crim Ct, NY County 1989] [detailed police officer testimony probably sufficient

2002Again, although that officer’s credentials are not alleged, the court adopts the finding in People v Harvin ( 126 Misc 2d 775 , 782 n 6 [Crim Ct, Bronx County 1984]), that “any police officer is capable of weighing the aggregate vegetable matter to determine the degree of the offense.” The court may infer that the information as to weight was communicated to the deponent officer and forms a reliable basis for concluding that the complaint sufficiently charges the defendant with violating Penal Law § 221.15 and defendant’s motion to dismiss that charge is denied.

2008There appears to be a split in reported trial court level decisions as to whether or not a trained police officer’s testimony that a substance is marihuana, without the benefit of a field test, is legally sufficient evidence to convert a misdemeanor complaint into an information (People v McGriff, 139 Misc 2d 361 [Crim Ct, NY County 1988] [police officer testimony insufficient]; People v Harvin, 126 Misc 2d 775 [Crim Ct, Bronx County 1984] [police officer testimony insufficient]; People v Escalera, 143 Misc 2d 779 [Crim Ct, NY County 1989] [detailed police officer testimony probably sufficient

1995(See, People v Brightman, 150 Misc 2d 60 ; People v James, 138 Misc 2d 920 ; People v Burton, 133 Misc 2d 701 ; People v Ranieri, 127 Misc 2d 132 ; People v McMillan, 125 Misc 2d 177 .) There is no showing here that the field test was generally accepted as reliable under Frye v United States (293 F 1013).

1995Evidence deemed inadmissible at trial after extrinsic proof reveals some infirmity may nevertheless have supported a prima facie case at the Grand Jury stage ( id. ). [2] Although uncontradicted results of a field test may provide legally sufficient evidence of presence of a controlled substance, meeting the threshold standard of sufficiency is not the same as proving guilt beyond a reasonable doubt at trial ( People v Mayo , 36 NY2d, at 1004 ).

1995Evidence deemed inadmissible at trial after extrinsic proof reveals some infirmity may nevertheless have supported a prima facie case at the Grand Jury stage (id.) 2 Although uncontradicted results of a field test may provide legally sufficient evidence of presence of a controlled substance, meeting the threshold standard of sufficiency is not the same as proving guilt beyond a reasonable doubt at trial (People v Mayo, 36 NY2d, at 1004 ).

2000(Compare, e.g., People v Escalera, 143 Misc 2d 779 [Crim Ct, NY County 1989] [holding that a misdemeanor complaint was converted into an information upon the filing of a field test report showing the presence of marihuana, where the modified Duquenois-Levine field test used was established to be highly reliable], with People v Brightman, 150 Misc 2d 60 [Dist Ct, Nassau County 1991] [holding that the filing of a field test report showing the presence of cocaine was not sufficient to convert a misdemeanor complaint into an information].) Two decisions of the New York Court of Appeals, which post

1995(See, People v Brightman, 150 Misc 2d 60 ; People v James, 138 Misc 2d 920 ; People v Burton, 133 Misc 2d 701 ; People v Ranieri, 127 Misc 2d 132 ; People v McMillan, 125 Misc 2d 177 .) There is no showing here that the field test was generally accepted as reliable under Frye v United States (293 F 1013).

2000Noting that the Scott-Reagent field test is “routinely relied upon by law enforcement to determine the presence of a controlled substance” (People v Swamp, 84 NY2d, at 731 ), the Court of Appeals concluded that this evidence “provided far more support for the Grand Jury’s determination than the showing found insufficient in People v Dumas ( 68 NY2d 729 [1986]), where the officer simply asserted that the defendant possessed marihuana without indicating the basis for that claim.” 1 (People v Swamp, supra, at 731 .) By a 6-1 decision, the Court of Appeals in Swamp (supra) rejected the view of the

2000Noting that the Scott-Reagent field test is “routinely relied upon by law enforcement to determine the presence of a controlled substance” (People v Swamp, 84 NY2d, at 731 ), the Court of Appeals concluded that this evidence “provided far more support for the Grand Jury’s determination than the showing found insufficient in People v Dumas ( 68 NY2d 729 [1986]), where the officer simply asserted that the defendant possessed marihuana without indicating the basis for that claim.” 1 (People v Swamp, supra, at 731 .) By a 6-1 decision, the Court of Appeals in Swamp (supra) rejected the view of the

1958It is “ [t]he Constitution [that] circumscribes the field of privilege and favor” (Oardozo, J., in Matter of Barthelmess v. Cukor, 231 N. Y. 435, 441 ), and that field is always subject to due constitutional delimitation.

1953The Constitution circumscribes the field of privilege and favor.” (Matter of Barthelmess v. Cukor, 231 N. Y. 435, 441 .) “ Some positions in the civil service may require that the person who fills them have certain qualities which cannot be measured by existing objective tests.

2024For instance, each baggie was found in the same closet as the lab-confirmed substances — one of them even in the same black pouch — and "the jury could reasonably infer from the positive results of those tests that the remaining [packages], which were recovered . . . at the same time, also contained a controlled substance since the untested" substances were in the same style of packing and the contents appear to be similar in nature ( People v Gillyard , 70 AD3d 854, 855 [2d Dept 2010], lv denied 14 NY3d 840 [2010]).

2024For instance, each baggie was found in the same closet as the lab-confirmed substances — one of them even in the same black pouch — and "the jury could reasonably infer from the positive results of those tests that the remaining [packages], which were recovered . . . at the same time, also contained a controlled substance since the untested" substances were in the same style of packing and the contents appear to be similar in nature ( People v Gillyard , 70 AD3d 854, 855 [2d Dept 2010], lv denied 14 NY3d 840 [2010]).

2024As this Court has recognized in People v Van Hoesen (12 AD3d 5 [3d Dept 2004], lv denied 4 NY3d 804 [2005]), the Court of Appeals did not hold in People v Swamp that a formal laboratory test was required to prove guilt beyond a reasonable doubt — only that a defendant may not be found guilty beyond a reasonable doubt based " 'solely' " on the result of a field test ( People v Van Hoesen , 12 AD3d at 9 n 2; quoting People v Swamp , 84 NY2d at 733; see Matter of Angel A. , 92 NY2d 430, 435 [1998]).

2024As this Court has recognized in People v Van Hoesen ( 12 AD3d 5 [3d Dept 2004], lv denied 4 NY3d 804 [2005]), the Court of Appeals did not hold in People v Swamp that a formal laboratory test was required to prove guilt beyond a reasonable doubt — only that a defendant may not be found guilty beyond a reasonable doubt based " 'solely' " on the result of a field test ( People v Van Hoesen , 12 AD3d at 9 n 2; quoting People v Swamp , 84 NY2d at 733 ; see Matter of Angel A. , 92 NY2d 430, 435 [1998]).

2021The traffic stop and subsequent request for defendant to exit the vehicle were permissible given that defendant was a reported missing and possibly endangered person and was located in a vehicle with two other unknown individuals ( see People v Garcia , 20 NY3d at 321 ; People v Robinson , 74 NY2d at 775 ).

2021The traffic stop and subsequent request for defendant to exit the vehicle were permissible given that defendant was a reported missing and possibly endangered person and was located in a vehicle with two other unknown individuals ( see People v Garcia , 20 NY3d at 321 ; People v Robinson , 74 NY2d at 775 ).

2020The court correctly advised defendant that both heroin and cocaine are controlled substances and that, for purposes of the Penal Law and sentencing, it was of no import which drug he possessed ( see Penal Law § 220.00 [7]; People v Kalabakas , 183 AD3d at 1135-1136 ).

2009In fact, if Kalin is used to excuse the People from producing a field test or laboratory analysis before conversion of the complaint in all cases, there is a substantial risk of our participation in an “unchecked system of detention,” which would carry “the potential to become a means for oppression and abuse.” (Hamdi, 542 US at 530 .) As stated in the dissent to Kalin , the criminal courts of the State of New York must continue “to ensure that such prosecutions do not become routinized or treated as insignificant or unimportant.” (Kalin, 12 NY3d at 234 .) Thus, in an effort to insure that eac

2009Does the exercise of the court’s discretion, authorized in People v Kalin ( 12 NY3d 225 [2009]), to deem a misdemeanor complaint charging a drug-related offense to be an information in the absence of a field test or laboratory analysis violate the defendant’s constitutional right to due process?

2009In fact, if Kalin is used to excuse the People from producing a field test or laboratory analysis before conversion of the complaint in all cases, there is a substantial risk of our participation in an “unchecked system of detention,” which would carry “the potential to become a means for oppression and abuse.” (Hamdi, 542 US at 530 .) As stated in the dissent to Kalin , the criminal courts of the State of New York must continue “to ensure that such prosecutions do not become routinized or treated as insignificant or unimportant.” (Kalin, 12 NY3d at 234 .) Thus, in an effort to insure that eac

2009Further, there is no additional “fiscal [or] administrative burden[ ] that the additional or substitute procedural requirement would entail.” (David W., 95 NY2d at 136-137 .) The People already provide a certified laboratory analysis to the court in an effort to establish one or more of the elements of misdemeanor drug possession.

2008There appears to be a split in reported trial court level decisions as to whether or not a trained police officer’s testimony that a substance is marihuana, without the benefit of a field test, is legally sufficient evidence to convert a misdemeanor complaint into an information (People v McGriff, 139 Misc 2d 361 [Crim Ct, NY County 1988] [police officer testimony insufficient]; People v Harvin, 126 Misc 2d 775 [Crim Ct, Bronx County 1984] [police officer testimony insufficient]; People v Escalera, 143 Misc 2d 779 [Crim Ct, NY County 1989] [detailed police officer testimony probably sufficient