People v. Hurd

KENNETH L. GARTNER, J. In People v Burton (133 Misc 2d 701, 704 [Crim Ct, NY by the officer alone would, without such an analysis, be insufficient. To the contrary, the court in Bratton itself specifically determined that "a statement by someone with general training and experience in recognizing drugs may provide reasonable grounds to believe that the substance recovered is a specific drug" (166 Misc 2d, at 896). Even after trial, where conviction must be "beyond a reasonable doubt," "the vast majority of courts in this nation * * * hold [that] proof of the identity of a substance by circumstantial evidence, including lay testimony by a person sufficiently familiar with the drug in question, may be sufficient in a drug prosecution * * * [even] when the drug is not entered into evidence or subjected to chemical testing" (State v Watson, 231 Neb 507, 512-513, 437 NW2d 142, 145-146 [1989]; see, e.g., People v Hanna, 296 Ill App 3d 116, 120-121, 693 NE2d 470, 473 [1998] [proof that substance possessed by a defendant is in fact a controlled substance is normally accomplished through chemical testimony and expert testimony; however, "where sufficient circumstantial evidence exists to convince a fact finder beyond a reasonable doubt that the substance defendant possessed is indeed a controlled substance, expert testimony is not always required"]; State v Krutz, 826 SW2d 7, 8 [Mo Ct App 1991] [affirming conviction for possession of cocaine, and holding that "the government may prove, beyond a reasonable doubt, the nature of an illegal substance through the use of circumstantial evidence * * * (including) `the physical appearance of the substance * * * that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence.' (Federal precedent omitted.)"]). The factual allegations of the misdemeanor complaint, even absent an SIB report, did, under Swamp and Bratton (supra), provide a "reasonable basis" for inferring the presence of a contraband, and thus satisfied the more stringent requirements of a facially sufficient information, at least for purposes of a CPL 170.70 application. The defendant's application is denied. [Portions of opinion omitted for purposes of publication.]