The issue before the Court is what, if any, remedy to impose for the People's failure to provide defendant with a lab report almost ten months after it was demanded in a request for discovery, and then turning it over just as the trial was about to begin. On May 21, 2010, defendant was arraigned on an accusatory instrument charging him with criminal possession of a controlled substance in the seventh degree. Penal Law 220.03. Under People v. Kalin, 12 NY3d 225 (2009), the accusatory instrument meets the requirements of an information. The People stated ready for trial that day. In the information, a police officer opined that defendant possessed cocaine residue. The lab report, which was generated on June 10, 2010. three days before the demand was even served, concludes the residue was methamphetamine. Defendant claimed all along that he never possessed cocaine, and that what the officer recovered was ground-up residue of pills he was prescribed by a physician; he has a prescription for generic amphetamine.

Defendant sought three remedies from the Court at the time of trial: dismissal of the case because the lab report did not corroborate the initial accusatory instrument; dismissal pursuant to CPL 30.30 based on an argument that the People's statement of readiness on the Kalin information was illusory; and preclusion of the results of the lab analysis because of undue prejudice. The Court found that defendant had suffered prejudice as a result of the blatant discovery violation, and granted only the application to preclude the lab analysis results. This opinion memorializes the Court's rulings.

In the information, Police Officer Merlyn Brito stated he observed defendant holding "a ziplock bag containing a white powdery substance alleged to be cocaine," as well as a "small bottle and straw containing a white powdery substance alleged to be cocaine residue." The officer opined "he believe(s) the aforementioned substances to be as indicated . . . based on [the officer's] training and experience, which includes training in the recognition of controlled substances and marihuana . . . as well as their packaging." In the lab report, the police chemist reported that only the bag and bottle contained residue of methamphetamine, and that no conclusion could be reached about whether the straw contained any controlled substance.

On June 14, 2010, defendant served the People with a written demand for discovery, which included a request for any written lab report. Defendant requested [*2]these demands either be complied with within 15 days, or, if the People did not seek a protective order, that the Court "issue an order of preclusion as relief for failure to comply with defendant's discovery demands." In their response, the People promised that they "will turn over discovery in a timely manner just prior to trial."

On July 20, 2010, the Court ordered pretrial hearings, and adjourned the case for trial. The People proposed a plea bargain, offering defendant an opportunity to plead guilty to disorderly conduct. Defendant turned down the offer, stating, inter alia, he was not guilty of cocaine possession. The case was adjourned for trial three times after that date. On March 9, 2009, the People offered to adjourn the case in contemplation of dismissal. Defendant did not consent to this disposition, stating he possessed ground up pills prescribed by a doctor and not cocaine.

On March 29, 2011, the People moved the case to trial, and finally provided defendant with a copy of the lab report. Defendant produced a prescription vial which he had brought to court that day for the trial; the label showed defendant had been prescribed a generic form of amphetamine, a schedule II controlled substance listed as a stimulant.^[FN1] When defendant asked the People to dismiss the case on its own motion, the People took the position that the methamphetamine detected by the chemist was different from the generic amphetamine defendant legally possessed, although the basis for this conclusion was not placed on the record.

Defendant moved to dismiss the case, ostensibly because the lab report did not corroborate the accusatory instrument. The Court denied the application and ordered the trial to begin. Moments later, the People served and filed a superseding information, signed that very day by Officer Brito. In it, the officer now said that "based on her training and experience" the residue observed not only in the bag and bottle, but also the straw, was "alleged and believed to be methamphetamine." Defendant asked the Court to dismiss the case pursuant to CPL 30.30, arguing that the People's statement of readiness some ten months earlier was illusory. The People claimed that they did not know when the lab report was requested, and said it had only recently come into their possession. The People argued that defendant was not prejudiced simply because he now had the report. Defendant requested that the results of the report be precluded.

Defendant's motion to dismiss the case outright because the lab report did not corroborate the allegations in the information was denied because the Court had no authority to grant that application. While a court can dismiss an accusatory instrument pre-trial if it is "facially insufficient," see e.g. People v. Casey, 95 NY2d 354 (2000), the lab report did not make the Kalin information insufficient. The report was never filed with the Court and was not part of the "four corners" of the accusatory instrument. People v. Thomas, 4 NY3d 143,146 (2005). Moreover, the type of controlled substance possessed is not an element of Penal Law 220.03, although a facially sufficient accusatory instrument charging drug possession must allege sufficient facts to show that some controlled substance was in fact possessed by a defendant. Cf. People v. Miller, 15 AD3d 265 (1st Dept 2005); People v. Martin, 153 AD2d 807 (1st Dept 1989); [*3]see Kalin. At most, the lab report represented a "variance" between the drug referred to in the information and the expected proof at trial.

The People, moreover, cured the variance by filing the superseding information before the trial began, which is their right. CPL 100.50(1);Thomas, 4 NY3d at 146-147. Defendant moved to dismiss the case pursuant to CPL 30.30, arguing that the statement of readiness on the first Kalin information was illusory in light of the lab analysis. This motion has to be made in writing, and was also denied.

Even if made in writing, this motion would have been denied on the merits. Since Kalin, a court must find that misdemeanor accusatory instruments in drug cases are informations if they contain the requisite language outlining the recovering officer's basis for reaching a conclusion that an item found is a certain type of drug. See People v. Pearson, 78 AD3d 445 (1st Dept. 2010); People v. Palmer, 24 Misc 3d 1218A (Crim Ct NY County 2009). The Kalin ruling is a logical extension of the Court's definition of a jurisdictionally-sufficient information. In Casey, 95 NY2d at 360, the Court held that "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." See also People v. Konieczny, 2 NY2d 569, 575 (2004). Thus, in a drug case, where a valid Kalin information is before the Court, the People may answer "ready for trial" without a corroborative lab report. See People v. Wright, 50 AD3d 429 (1st Dept 2008); People v. Van Hoesen, 12 AD3d 5, 8 - 9 (3d Dept 2004).^[FN2]

While no one can seriously claim that a prosecutor is prepared to win a case charging a defendant with possession of a controlled substance at the time of the arraignment in the absence of any lab analysis being yet performed, case law does not view "trial readiness" and "trial preparedness" as one and the same. See Wright, 50 AD3d at 430. Thus, the People may make a statement of "trial readiness" but still gather evidence after doing so without running the risk of labeling such a statement as "illusory." Id. In a drug case, appellate authority holds that the People can state ready for trial without a lab report, and there are no CPL 30.30 consequences if lab analysis is not even requested for many months thereafter. Van Hoesen, 12 AD3d at 8-9.

However, in terms of discovery, the letter of CPL 240.20, as well as the spirit of Casey and Kalin, are violated when the People fail to turn over a lab report that reaches a conclusion different from the one reached by the "trained" police officer who seized the physical evidence. "Discovery in a criminal proceeding is entirely controlled by statute." People v. Davis, 184 Misc 2d 680, 687 (Sup Ct Kings Co 2000). As a matter of [*4]policy, the legislature has provided strict timetables under which the People, as well as defendants, are required to provide disclosure. CPL 240.20 lists discovery items the People must provide "upon demand of [a] defendant." These include a written report of the results of a police-requested scientific test. CPL 240.20(1)(c). The People must either comply with such demand, or indicate in writing that they refuse to so comply, and state the reason for such refusal. CPL 240.35.

Here, although defendant demanded discovery from the prosecutor less than a month after they stated ready for trial, and despite the immediate availability of the lab report, an unjustifiable period of time elapsed before the People turned it over. And, for months thereafter, the People insisted they were ready to try defendant for possession of cocaine residue. The Court is well aware that preclusion, while a recognized remedy for a flagrant violation of discovery rules, is nonetheless a very harsh sanction. See People v. Jenkins, 98 NY2d 280, 284 (2002). In terms of possible alternative sanctions, the Court may not "charge" time to the People based on the discovery violation. People v. Anderson, 66 NY2d 529, 543 (1985). And, adjourning the case for defendant to prepare for trial based on a new and unexplained theory of prosecution — that the residue recovered from defendant and available by prescription is not his prescription — would likely be futile. Defendant has conceded that the residue was knowingly possessed. The problem is preparing a defense at this late date that the possession was unlawful.

Defendant was on notice via the information that the People intended to prove he possessed cocaine residue. He prepared his defense based on that accusatory instrument alone, and refused what would appear to be reasonable plea offers, for reasons that may in fact have been validated by the police chemist. Meanwhile, the police department had a lab report showing defendant did not have cocaine residue at all. To have the People turn around eleven months after they stated ready for trial based solely on a Kalin information and expect defendant to now go to trial in a case in which they turned over a long-existing lab report showing he possessed something completely different — something he claims was his prescription medication — without any sanction at all would be decidedly unfair. It would seem that defendant would have to consult with and perhaps retain a chemist to conduct a comparative analysis between the batch of prescription medication dispensed to him eleven months earlier and the recovered residue, something the Court finds is likely to be impossible, and which would therefore not "cure any potential prejudice." Jenkins, 98 NY2d at 284.

Put simply, the Court finds that there is no sufficient legal remedy other than preclusion. The discovery obligation for timely production of lab reports should be strictly construed in Kalin -based drug prosecutions.^[FN3] It is always unfair for the People to [*5]withhold any discovery required by legislative mandate, and especially discovery that exists and must be disclosed upon demand. It is even more unfair for the People to claim trial readiness based on a Kalin information and fail to turn over a lab report whose results significantly contradict the opinion of the trained police officer about what drug was possessed until the day of trial. The People's failure to comply with their discovery obligation in a timely and meaningful way severely prejudiced defendant, and merits the remedy of preclusion.

This constitutes the decision and order of the Court.

Dated: May 12, 2011_______________________________

Hon. Ralph Fabrizio