In re James M. B.

Appellate Division of the Supreme Court of New York

In re James M. B.

225 A.D.2d 1078, 639 N.Y.2d 205, 639 N.Y.S.2d 205, 1996 N.Y. App. Div. LEXIS 2918

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 8, 1996

StatusPublished

This text of 225 A.D.2d 1078 (In re James M. B.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re James M. B., 225 A.D.2d 1078, 639 N.Y.2d 205, 639 N.Y.S.2d 205, 1996 N.Y. App. Div. LEXIS 2918 (N.Y. Ct. App. 1996).

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Opinion

Memorandum: Respondent was adjudicated a juvenile delinquent on the ground that he committed an act that, if committed by an adult, would constitute the crime of criminal possession of a controlled substance in the seventh degree. The petition alleges that respondent knowingly and unlawfully possessed cocaine with the intent to sell it. Annexed to the petition is a supporting deposition of the arresting officer, who stated that, as he chased respondent, he observed respondent throw "some small objects under a bush”. The officer retrieved those objects, which consisted of 15 bags that contained a white rock-like substance. The officer further stated that, "[t]hrough my training and experience!,] I do recognize the white rock-like substance to be crack cocaine”. Also annexed to the petition is a laboratory report signed by a forensic chemist, setting forth the results of an analysis of the substance contained in the bags retrieved from respondent. The report states that the substance is cocaine, with an aggregate weight of 1,648 milligrams. It does not, however, indicate that it is signed by the person who actually performed the test. Additionally, the same forensic chemist signed a certification that the report is a true and full copy of the original but she did not attest to personal knowledge regarding the substance tested.

Family Court erred in denying respondent’s motion to dismiss the petition. The supporting deposition of the arresting officer and the laboratory report attached to the petition "do not contain nonhearsay allegations establishing that the substance in question was [cocaine]” (Matter of Wesley M., 83 NY2d 898, 899; see also, Matter of Rodney J., 83 NY2d 503; Matter of Jahron S., 79 NY2d 632). Therefore, the petition "is jurisdictionally defective and must be dismissed as it fails to make out a prima facie case against respondent for criminal possession of a controlled substance” (Matter of Wesley M., supra, at 899). (Appeal from Order of Erie County Family Court, Szczur, J. — Juvenile Delinquency.) Present — Pine, J. P., Wesley, Callahan, Davis and Boehm, JJ.

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Memorandum: Respondent was adjudicated a juvenile delinquent on the ground that he committed an act that, if committed by an adult, would constitute the crime of criminal possession of a controlled substance in the seventh degree. The petition alleges that respondent knowingly and unlawfully possessed cocaine with the intent to sell it. Annexed to the petition is a supporting deposition of the arresting officer, who stated that, as he chased respondent, he observed respondent throw "some small objects under a bush”. The officer retrieved those objects, which consisted of 15 bags that contained a white rock-like substance. The officer further stated that, "[t]hrough my training and experience!,] I do recognize the white rock-like substance to be crack cocaine”. Also annexed to the petition is a laboratory report signed by a forensic chemist, setting forth the results of an analysis of the substance contained in the bags retrieved from respondent. The report states that the substance is cocaine, with an aggregate weight of 1,648 milligrams. It does not, however, indicate that it is signed by the person who actually performed the test. Additionally, the same forensic chemist signed a certification that the report is a true and full copy of the original but she did not attest to personal knowledge regarding the substance tested.

Family Court erred in denying respondent’s motion to dismiss the petition. The supporting deposition of the arresting officer and the laboratory report attached to the petition "do not contain nonhearsay allegations establishing that the substance in question was [cocaine]” (Matter of Wesley M., 83 NY2d 898, 899; see also, Matter of Rodney J., 83 NY2d 503; Matter of Jahron S., 79 NY2d 632). Therefore, the petition "is jurisdictionally defective and must be dismissed as it fails to make out a prima facie case against respondent for criminal possession of a controlled substance” (Matter of Wesley M., supra, at 899). (Appeal from Order of Erie County Family Court, Szczur, J. — Juvenile Delinquency.) Present — Pine, J. P., Wesley, Callahan, Davis and Boehm, JJ.

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225 A.D.2d 1078, 639 N.Y.2d 205, 639 N.Y.S.2d 205, 1996 N.Y. App. Div. LEXIS 2918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-james-m-b-nyappdiv-1996.

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