The defendant, Homer Watson, was charged on October 23, 2012 with one count of criminal possession of a controlled substance in the fifth degree, a class D felony, in violation of Penal Law §220.06(2); criminal possession of a controlled substance in the seventh degree, a class A misdemeanor, in violation of Penal Law §220.03 (by an accusatory instrument that this Court deemed a misdemeanor complaint); and unlawful possession of marihuana, a violation, in violation of Penal Law §221.05. The charge of criminal possession of a controlled substance in the fifth degree was reduced on October 25, 2012 to one count of criminal possession of a controlled substance in the seventh degree, a class A misdemeanor, in violation of Penal Law §220.03 (the Court marked the accusatory instrument a misdemeanor complaint when it was reduced). By notice of motion filed on March 11, 2013, through his attorney, Gennaro D. Calabrese, Esq., the defendant [*2]moves for speedy trial relief. The People have responded through the affirmation in opposition of Brittany L. Grome, Esq. filed on April 2, 2013. The matter now comes before the Court for a decision.

Under CPL §30.30(5)(c), where a felony complaint is replaced with a new accusatory instrument charging a class A misdemeanor, the People must be ready for trial within 90 days from the filing of the new instrument or six months from the filing of the felony complaint, whichever is shorter. Here, since the felony charge was reduced 2 days after the felony complaint was filed, the People were required to announce their readiness for trial within 90 days of October 25, 2012. Accordingly, the People were required to be ready for trial by January 23, 2013, plus any excludable time that may be chargeable to the defendant. Once a defendant has shown a delay greater than the applicable speedy trial period, the burden of proving that certain periods within that time should be excluded falls on the People. People v. Berkowitz, 50 NY2d 333, 428 NYS2d 927 (1980).

Defendant filed his motion on March 11, 2013, 47 days after the People were required to be ready for trial. The People respond that "[i]nasmuch as defendant was charged with ... a felony, the People must be ready within six months from the commencement of the criminal action." This supposition is incorrect pursuant to CPL §30.30(5)(c).

Additionally, the People state that they announced readiness on October 25, 2012. However, when the felony charge was reduced to a misdemeanor charge on October 25, 2012, the new accusatory instrument was deemed a misdemeanor complaint, as no laboratory report was filed to support the allegations in the accusatory instrument and the officer failed to provide any information as to why he concluded that the substance was a particular type of illegal drug (the same reasoning applies to the misdemeanor complaint originally filed on October 23, 2012).

The People cite to People v. Kalin, 12 NY3d 225, 878 NYS2d 653 (2009), to support their belief that the accusatory instruments charging defendant with criminal possession of a controlled substance in the seventh degree are in fact informations and not simply misdemeanor complaints. Kalin stands for the proposition that a laboratory report is not necessarily required to establish a prima facie case of drug possession. Id. at 230. It also stands for the proposition that "[s]tanding alone, a conclusory statement that a substance seized from a defendant was a particular type of controlled substance does not meet the reasonable cause requirement." Id. at 229, citing People v. Dumas, 68 NY2d 729, 731, 506 NYS2d 319 (1986). "Rather, the factual allegations must establish the basis of the arresting officer's belief that the substance seized was an illegal drug - for example, an officer may allege that the accused made a statement identifying the drug." Id. at 229. [*3]

Here, the officer alleges in the accusatory instrument that defendant possessed 30 "pills of hydrocodone, in an unlabeled bottle ... identified by the ... police officer, based upon his training in drugs ... and his experience as a police officer aided by drugs.com." Nowhere does the officer provide any information as to why he concluded that the substance was hydrocodone. The pills were in an unlabeled bottle. The officer did not describe the markings on the pills or even state that he identified the pills based upon their markings. Nothing was stated as to why he could identify the pills as hydrocodone with the help of drugs.com. Similar facts were stated in the misdemeanor complaint which charged defendant with a violation of criminal possession of a controlled substance in the seventh degree based upon defendant's alleged possession of a quantity of alprazolam. The officer's conclusory statement that the pills were hydrocodone and alprazolam, respectively, standing alone, is insufficient to meet the reasonable cause requirement. Therefore, this Court holds that the within accusatory instruments which charge defendant with a violation of criminal possession of a controlled substance in the seventh degree are in fact misdemeanor complaints, as marked by the Court, and not sufficient informations.

Absent a waiver, a defendant has a statutory right to be prosecuted by information in any misdemeanor action. CPL §170.65(1) and (3); People v. Weinberg, 34 NY2d 429, 358 NYS2d 357 (1974). Where a supporting deposition or a laboratory report is necessary to convert a misdemeanor complaint to an information, filing the supporting deposition or laboratory report with the Court is a jurisdictional prerequisite to prosecution of the action. People v. Worley, 66 NY2d 523, 498 NYS2d 116 (1985). Here, the People have never taken the steps necessary to convert the within misdemeanor complaints to informations. Since the People could not have been ready for the entire period from arraignment to the conversion of the accusatory instruments to informations, all 137 days up to the filing of defendant's motion are chargeable to the People. Therefore, defendant's motion for an order dismissing the within accusatory instruments is granted pursuant to CPL §§170.30(1)(e) and 30.30.

Albany City Court Judge