People v. McIntyre

Therefore, Angel A. (supra) (which was guided by Swamp [supra]) controls the decision in this case. As a consequence, the filing of the report of a Scott-Reagent field test, accompanied by sufficient allegations by a police officer, may provide a "reliable basis" for inferring the presence of cocaine for purposes of a misdemeanor information. The defense attempts to distinguish Swamp (supra), arguing that in contrast with the Grand Jury testimony at issue in Swamp, the complaint and accompanying documents in the present case fail to allege the chemical reactions of the field test, whether the test procedures were properly conducted, and the training and experience of the officer in identifying drugs or conducting the kind of field test he used in this case. The defense further argues that the complaint and accompanying documents are defective because they fail to allege the error rate for the test or its acceptability in the scientific community. The Court of Appeals in Angel A. (supra) rejected these and similar arguments, noting that under Swamp, the People were only required to present proof that there was a "reliable basis" for inferring the presence of a controlled substance and that such basis was established through the observations of a trained police officer and the positive results from a Scott-Reagent field test.

The facts alleged in the present case provide a substantially greater basis for inferring the presence of cocaine than the conclusory statement found insufficient in Dumas (supra). (See, n 1, supra.) In the present case, the People have provided uncontroverted evidence concerning the reliability of the Scott-Reagent field test that was used on the substance allegedly seized from the defendant. According to the proof presented, the New York Police Department has documented an accuracy rate of 99.55% since its officers began using the Scott-Reagent field test in 1995. Moreover, law enforcement agencies in all 50 States and at least 59 countries rely on the Scott-Reagent field test. (See, Ms. Chanza's affirmation.) In light of these facts, this court finds that the allegations in the present case, if true—the positive results of the Scott-Reagent field test and the observations by a trained police officer of the substance and its packaging—provide a "reliable basis" for inferring the presence of cocaine. Finally, the defendant requests that this court conduct a Frye/Wesley hearing to determine the accuracy of the Scott-Reagent field test. That application is denied in light of Angel A.'s instruction that the reliability of scientific evidence is only a question for trial, and for the independent reason that the uncontroverted facts presented sufficiently demonstrate the accuracy of the Scott-Reagent test at the charging stage of the case. [1] In Dumas (supra), the complaint contained the allegation that an undercover officer informed the complaint's deponent that the defendant had sold marihuana to the undercover officer. The Court of Appeals concluded that the complaint was facially insufficient because the allegation that the defendant had sold "marihuana" was merely a "conclusory statement" of the undercover officer, and the complaint did not provide the facts from which the undercover officer had drawn his conclusion. [2] See also, Matter of Jayson P., 243 AD2d 266, 267 (1st Dept 1997) (holding facially sufficient Family Court petitions containing supporting depositions by undercover officers saying that they had purchased two glassines of heroin from juveniles, that the officers had field tested the substance using the NIK test, that the NIK test is a reliable test routinely used, that the officers had received extensive training in the identification of controlled substances, and that each had previously performed at least 20 NIK tests; and rejecting juveniles' "attack on the capability of the officers to perform an accurate field test and upon the reliability and acceptance of the test results," because such issues go "only to the weight and not the sufficiency of the evidence"). [3] A legally sufficient misdemeanor complaint must set forth "facts of an evidentiary character" that demonstrate "reasonable cause" to believe that the defendant committed the charged offenses. (CPL 100.15 [3]; 100.40 [1] [b]; People v Dumas, 68 NY2d 729 [1986], supra.) In order to convert the complaint into an information, the People must set forth "[n]on-hearsay allegations * * * [that] establish, if true, every element of the offense charged and the defendant's commission thereof." (CPL 100.40 [1] [c]; 100.15 [3]; People v Alejandro, 70 NY2d 133 [1987].) Likewise, a juvenile delinquency petition is legally sufficient "when the verified petition and any supporting depositions not only `provide reasonable cause to believe that the [juvenile] committed the crime or crimes charged' * * * but also `establish, if true, every element of each crime charged and the [juvenile's] commission thereof.' " (Matter of Angel A., 92 NY2d, supra, at 433 [citations omitted].) [4] The defendant also alleges that the complaint was not converted into an information because the People did not allege through nonhearsay facts what field test was used on the substance allegedly seized from the defendant. The absence of this detail does not detract from the "reliable basis" provided by the combination of allegations in the complaint, the supporting deposition and the field test report and therefore is not required to be part of the charging instrument.