People v. Mizell

Appellate Terms of the Supreme Court of New York

People v. Mizell

139 Misc. 2d 286, 530 N.Y.S.2d 503, 1988 N.Y. Misc. LEXIS 384

Appellate Terms of the Supreme Court of New York·Decided February 4, 1988·Published·Cited by 1 cases

Opinion

OPINION OF THE COURT

Memorandum.

Order affirmed.

The information in the case at bar charged the defendant with criminal possession of a controlled substance in the seventh degree, alleging that he possessed two vials containing "cocaine, crack.” The court below dismissed the information [287]*287upon receipt of a laboratory report indicating that the vials contained only a "residue”.

While the Legislature has not required proof of a minimum quantity for the offense in question (see, People v Schunk, NYLJ, Jan. 15, 1987, at 12, col 1 [App Term, 9th & 10th Jud Dists]), it is our opinion that proof of only a nonquantifiable amount of a controlled substance is insufficient, without more to support a conviction for criminal possession of the substance (see, People v Baker, 7 AD2d 707; see also, People v Mason, 136 Misc 2d 968; People v Ifill, 137 Misc 2d 14; People v Shelton, 136 Misc 2d 644). While circumstantial evidence may remedy the defect and establish a prima facie case, the information fails to allege any additional factual data beyond that previously set forth. It is therefore facially insufficient. Since the failure of an information to allege a prima facie case is a nonwaivable jurisdictional defect (People v Alejandro, 70 NY2d 133), the fact that defendant did not comply with provisions of CPL 170.45 requiring notice and writing, is of no moment.

Kassoff, P. J., and Pizzuto, J., concur; Kellam, J., taking no part.

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OPINION OF THE COURT

Memorandum.

Order affirmed.

The information in the case at bar charged the defendant with criminal possession of a controlled substance in the seventh degree, alleging that he possessed two vials containing "cocaine, crack.” The court below dismissed the information [287]*287upon receipt of a laboratory report indicating that the vials contained only a "residue”.

While the Legislature has not required proof of a minimum quantity for the offense in question (see, People v Schunk, NYLJ, Jan. 15, 1987, at 12, col 1 [App Term, 9th & 10th Jud Dists]), it is our opinion that proof of only a nonquantifiable amount of a controlled substance is insufficient, without more to support a conviction for criminal possession of the substance (see, People v Baker, 7 AD2d 707; see also, People v Mason, 136 Misc 2d 968; People v Ifill, 137 Misc 2d 14; People v Shelton, 136 Misc 2d 644). While circumstantial evidence may remedy the defect and establish a prima facie case, the information fails to allege any additional factual data beyond that previously set forth. It is therefore facially insufficient. Since the failure of an information to allege a prima facie case is a nonwaivable jurisdictional defect (People v Alejandro, 70 NY2d 133), the fact that defendant did not comply with provisions of CPL 170.45 requiring notice and writing, is of no moment.

Kassoff, P. J., and Pizzuto, J., concur; Kellam, J., taking no part.

People v. Mizell, 139 Misc. 2d 286, 530 N.Y.S.2d 503, 1988 N.Y. Misc. LEXIS 384 (N.Y. Ct. App. 1988).

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