Defendant Russell Cannon is charged with Criminal Possession of Marihuana in the Fifth Degree (PL § 221.10 [1]) and Unlawful Possession of Marihuana (PL § 221.05) based on the allegation that he was in possession of a marihuana cigar found in his car. He moves to dismiss the accusatory instrument on facial sufficiency and speedy trial grounds. The People oppose.

The accusatory instrument charges, pertinently, that a police officer recognized the cigar to contain marihuana based on his training and experience and a confirmatory field test.^[FN1]

The People commenced this action on June 13, 2012, but did not serve and file the police officer's supporting deposition and a statement of readiness until July 5, [*2]2012, twenty-two days later, as they concede.

Defendant argues that the accusatory instrument did not become an information until a positive laboratory report was served and filed on September 4, 2012, beyondthe sixty days allotted by the Criminal Procedure Law for the People to be ready for trial in a case charging, as here, a "B" misdemeanor. Defendant's argument is premised on an attempt to distinguish the Court of Appeals decision in People v Kalin, 12 NY3d 225 (2009), where the Court held that the People did not need a laboratory report to make out a "prima facie" case, which is the statutory pleading standard for an information, and a prerequisite to the People's ability to announce trial readiness.

In Kalin the Court differentiated between two types of misdemeanor accusatory instruments, a complaint, by which a court obtains jurisdiction over a defendant (see CPL 100.50, 100.10 [4]), and an information, which "serves as the basis for a prosecution" (People v. Kalin, 12 NY3d 225, 228 [2009], supra; see CPL 100.40 [1] [c]). As pertinent here, a complaint gives the court only "preliminary jurisdiction" over a defendant, allowing it, among other things, to arraign him and set bail, while an information gives the court full "trial jurisdiction," allowing it, among other things, to take a plea from, or try, him (see CPL 1.20 [24], [25]; People v. Correa, 15 NY3d 213, 229 [2010] ["Preliminary jurisdiction encompasses conducting arraignments, assigning counsel, setting bail ... [and] trial jurisdiction includes the authority to resolve the case on the merits by conducting a trial or accepting a guilty plea"]; see also People v. Fernandez, 2012 WL 525829 [NY], 2012 NY Slip Op 07145 [Ct. Appls., Oct. 25, 2012] ["A defendant may not be prosecuted by a misdemeanor complaint - and the trial court is required to so inform the defendant - unless prosecution by information is waived, or unless a supporting deposition is filed."]).

Defendant claims that Kalin addressed only the question of the sufficiency of an information to which a defendant pleads guilty, whereas here, the defendant is seeking a trial rather than a plea. Defendant claims that a different prima facie case standard applies in this situation, and that the present information, without a laboratory report or field test, provides an insufficient basis for prosecution. Kalin, of course, does not make any such distinction, nor does the Criminal Procedure Law say that an information permits a court to take a plea from, but not try, a defendant. It says, instead, the opposite: if there is an information before the court, the court may take a plea from, or try, a defendant.

There may be two "prima facie" standards in the Criminal Procedure Law, but not, as defendant contends, with regard to an information. As the Court stated in Kalin and then reiterated in People v. Suber, there are "distinct prima facie case standards for informations and indictments.... [T]he prima facie case requirement for an information does [not] rise to the level of legally sufficient evidence that is necessary' to set forth a facially valid indictment or survive a motion to dismiss based on the proof presented at trial'" (People v Suber, 19 NY3d 247, 252 [2012] [emphasis supplied], citing People v Kalin, 12 NY3d 225, 230 [2009], supra).

Significantly, this interpretation of the "prima facie" case standards means that the pleading standard for an information imposes a different, and lesser, burden on the People than does the prima facie case standard for an indictment. The Court of Appeals has previously held that sworn grand jury testimony by an officer as to his own observations of a field test is sufficient for an indictment in a drug case (People v. Swamp, 84 NY2d 725 [1995]). Necessarily, therefore, the sworn statement of the officer here that a field test of the alleged marihuana confirmed its nature is sufficient for an information. And I note parenthetically - because defendant does not raise any other facial sufficiency issue - that in Kalin the Court of Appeals found that allegations similar to those made here regarding the officer's training and experience and the packaging of the substance were sufficient to identify the substance in the absence of a [*3]laboratory report. For these reasons, the absence of a laboratory report or field test does not affect the facial sufficiency of the present accusatory instrument, its ability to confer trial jurisdiction on the court, and the People's ability to announce their readiness to try it. Its filing within twenty-two days of arraignment was timely.

Finally, and importantly, defendant's argument is contrary to uniform intermediate appellate authority (People v Jennings, 34 Misc 3d 137 [A] [App. Term, 2nd, 11th, & 13th Jud. Dists. 2011]; People v Collins, 23 Misc 3d 138 [A] [App. Term, 2nd, 11th, & 13th Jud. Dists. 2009]; see also People v Mack, 29 Misc 3d 140 [A] [App. Term, 1st Dept. 2010]). Notably, the informations in these cases were found to be sufficient even in the absence of an allegation that a confirmatory field test had been conducted. Leave has been granted in the Jennings case (see 19 NY3d 962 [2012]), so the Court of Appeals may revisit this issue. Until it does, the matter is settled. Defendant's motion is therefore denied.

The foregoing constitutes the decision and order of the court.

Dated: October 29, 2012

Brooklyn, New York__________________

JOHN T. HECHT

J.C.C.