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People v. Mizell

139 Misc. 2d 286 Court Supreme Court, Appellate Term, Second Department, Decision date 1988-02-04 English

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p. 286
The People of the State of New York, Appellant, v Irving Mizell, Respondent.
Supreme Court, Appellate Term, Second Department,
February 4, 1988
APPEARANCES OF COUNSEL
William L. Murphy, District Attorney (Yolanda L. Rudick of counsel), for appellant. Philip L. Weinstein and Leslie Crary for respondent.

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

p. 287
upon 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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