The defendant has been indicted for the commission of the crime of Criminally Selling a Dangerous Drug Possession in the Third Degree, a Class C Felony, in violation of the Penal Law § 220.35, and he now moves that the indictment then be dismissed.
A New York Criminal attorney said that the district attorney responds to the effect that the people have no scientific reports in their possession, but will provide such reports which may come into their possession in the future, and ask that the motion be denied without prejudice to a renewal at the time of trial under circumstances where the chain of evidence will not be interfered with.
The charge stated that the said defendant in the Town of Poughkeepsie, County of Dutchess and State of New York, knowingly and unlawfully offered to sell a quantity of cocaine to another person.
While the defendant seeks scientific reports of the alleged cocaine and samples for testing, his principal contention is that his physical possession of the cocaine, thus proving his capability to transfer it to another person, and its chemical analysis establishing that the substance was cocaine are essential elements of the crime, in the absence of which the indictment must be dismissed.
This Court has heretofore held that the unlimited disclosure provided by CPL § 240.20, subd. 2, requires in a case involving dangerous drugs, where the property containing the alleged drug has been seized by the police, examined and analyzed scientifically, and thus the substance of the drug itself is naturally the basis of the charge, that the people should furnish to the defendant, or his attorney, all reports and documents, or copies thereof, concerning any scientific tests and experiments made on such property seized, and in view of the people’s affidavit the Court assumes that the people do not in fact have any reports and documents concerning scientific tests and experiments made in connection with the case.
Notwithstanding such assumption, however, it is ordered that even though no reports containing scientific tests and experiments are presently in the possession of the people, if hereafter at any time in the future any reports and documents concerning scientific tests and experiments made in connection with the case do come within the ‘possession, custody or control of the district attorney, the existence of which is known, or by the exercise of due diligence should become known’ to him to exist, then the same, or copies thereof, shall be forthwith supplied to the defendant.
To Be Cont..
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