People v. Maring

54 A.D.2d 1129, 388 N.Y.S.2d 804, 1976 N.Y. App. Div. LEXIS 15115

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1976
• Status: Published

Opinion

Order unanimously reversed, motion denied and indictment reinstated. Memorandum: The People appeal from an order of County Court, Chautauqua County, granting defendant’s motion to suppress certain evidence seized by the police from the person of defendant and to dismiss indictment No. 75-115. The indictment charged the crime of criminal possession of a controlled substance in the fifth degree, such substance consisting of one milligram or more of lysergic acid diethylamide. The evidence suppressed, which the People assert provided the sum of the proof available to support the charge in the indictment, consisted of 89 pink tablets contained in a plastic bottle which were sent to a toxicology laboratory for analysis and returned to the police in powdered form. The court granted the suppression order on its finding that neither the court, defense counsel nor the defendant were able to see the evidence in its original condition, it having been totally tampered with thereby rendering it impossible for the defense to have it examined by a scientist of its own choosing. The court made no finding of an illegal seizure. Ascertaining the total weight of the alleged controlled substance was essential to proving the crime charged and the People should have been allowed an opportunity to show that the method employed by the laboratory only resulted in a change of appearance and not of chemistry. The proof before the court provided no basis for findings justifying the order suppressing the evidence and dismissing the indictment. (Appeal from order of Chautauqua County Court— motion to suppress.) Present—Marsh, P. J., Moule, Mahoney, Goldman and Witmer, JJ.