“Is a misdemeanor information valid, accusing defendant of criminal possession of a controlled substance, where the officer relies on his experience and training in determining that defendant possessed heroin?”


Andrew Tabashneck is a criminal defense and family law attorney in buffalo new york

Andrew S. Tabashneck is a Criminal Defense and Family Law Attorney in Buffalo NY

This was the very same question decided by the New York Court of Appeals in 2009. In that case, People v. Kalin, the New York Court of Appeals ruled that where the factual part of the information relies on an officer’s training and experience to identify a controlled substance, as oppose to a lab report, the information is not defective under New York’s Criminal Procedure Law 100.15[3].

Under CPL, in addition to the reasonable cause requirement, an information must also set forth non-hearsay allegations which, if true, establish every element of the offense charged and the defendant’s commission thereof.” Lawyers often refer to this as the so called “prima facie case requirement.” An information is jurisdictionally defective where it fails to allege a complete element of the charged offense. Importantly, even if the accused pleads guilty, the information may be challenged after the guilty plea and even after sentencing.

In the above-referenced case, the issue was whether the factual allegations were sufficient where the officer identified the drugs seized as heroin based on his “experience as a police officer as well as his training in the identification and packaging of controlled substances and marijuana. In other words, this was the foundation for the officer to conclude he discovered heroin the vehicle of the accused.

The court ruled the assertions were sufficient to establish each element assuming the facts to be true. The court emphasized the officer had been trained to identify those drugs and their packaging, he had experience with narcotics as a law enforcement officer and his observations of the substances, along with the presence of drug paraphernalia, supplied the basis upon which he drew the conclusion that he had discovered heroin and marijuana.

In light of the case above, attorneys must make sure the accusatory instrument reflects the police officer’s or other affiant’s training and experience in controlled substance identification, or that some other basis for the allegation exists.

Clearly, the law is quite complicated. Please be advised, this is not legal advice. For a free consultation, contact Andrew Tabashneck, a criminal attorney buffalo ny and criminal lawyer buffalo ny today.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s