A failure to Shepardize? AD1 reverses conviction, relying on overruled cases

In People v. Pearson (1st Dept. 7/6/2010), the First Department reversed a defendant's conviction because the local criminal court accusatory instrument was defective.  Since the purported defect went to the prima facie requirement, the claim was not waived by the defendant's guilty plea.  At issue was whether the criminal complaint was sufficient when "the supporting deposition stated only that an officer observed defendant remove from his waistband a condom containing eight glassines of beige powdery substance, which the officer concluded to be heroin, based on his training and experience, 'includ[ing] training in the recognition of controlled substance, and its packaging.'"  The court found this insufficient because there was no laboratory report or field test appended to the instrument.  The court cited two cases: Matter of Jahron S., 79 N.Y.2d 632 (1992), and People v. Kalin, 17 Misc.3d 131(A) (App. Term. 2d Dept. 2007).  

The problem?  Both Jahron S. and the Appellate Term's decision in Kalin were overruled by the Court of Appeals' decision in Kalin, 12 N.Y.3d 225 (2009). Although AD1's cite to the AT2 decision of Kalin indicates that leave was granted, curiously the court did not cite to the subsequent decision by the Court of Appeals.  Is this an example of a law clerk's failure to Shepardize?  

In Kalin, the Court of Appeals reversed AT2 and held that, to be sufficient, a CPCS accusatory instrument need not have a lab report or field test attached.  Rather, a drug charge is sufficient if an officer relies on his training and experience to state that the substance is believed to be a controlled substance and gives some indication for the basis of his belief.  In its decision, the Court of Appeals held:

In our view, the pleading standards of the Criminal Procedure Law would be extended beyond what the Legislature intended if we were to require the recitation of a mandatory catechism in an information that otherwise adequately identifies the particular drug, alleges that the accused possessed that illegal substance, states the officer's familiarity with and training regarding the identification of the drug, provides some information as to why the officer concluded that the substance was a particular type of illegal drug, and supplies sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy. To the extent Jahron S. suggests otherwise, we are modifying that portion of the holding.

Based on AD1's description of the accusatory instrument, it appears that it was sufficient under the Court of Appeals' Kalin standard.  AD1's opinion indicates that the People conceded that the defendant did not waive his right to be prosecuted under an information; it is unclear whether the People also conceded that the instrument was defective.  It will be interesting to see if the court's opinion is recalled in light of what appears to be a simple Shepardizing error.  (LC)

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