
    The People of the State of New York, Appellant, v. Douglas Kenny, Respondent.
    Argued February 8, 1972;
    decided March 22, 1972.
    
      Owens D. Grogan, District Attorney, for appellant.
    
      
      Michael J. Horowitz, Stanley G. Weiss and Murray A. Gordon for respondent.
   Bergan, J.

Defendant has been sentenced to a maximum term of five years in prison for selling for $5 in 1968 a small quantity of marijuana to a friend in violation of section 220.40 of the Penal Law. Defendant is a first offender. He was a band leader. The complainant, Bernard Branch, had been a member of defendant’s band. Defendant was then 22 years old, Branch 19.

No part of the substance which Branch was permitted to describe as “ marijuana ” was preserved for the trial. No examination or test of it was made by any chemist or other person experienced in narcotics to bring the material which Branch said defendant had sold him in July, 1968 within the category of the “narcotic drug ” described in section 220.40 of the Penal Law.

Branch testified that he and defendant went together to a cemetery where they rolled two cigarettes from the material, each smoking one. Branch said he brought the rest of the material home and threw it away. The prosecution was commenced with indictment April 25, 1969, almost a year later, and the trial began in November, 1969.

Defendant’s conviction and five-year maximum sentence depend, then, not only on the credibility of Branch alone, but on the technical ability of Branch to identify beyond a reasonable doubt the substance he said he "bought as a “ narcotic drug ’ ’ within the terms of the statute.

The Appellate Division reversed the conviction and dismissed the indictment on the ground the witness was not qualified to identify the drug. The People appeal and raise a single question in this court which they pose this way: “Is expert testimony or opinion evidence as to the identity of marijuana essential to sustain a conviction of sale of marijuana? ”

Branch in his own terms described the ‘ ‘ stuff ’ ’ he and defendant smoked together as “pot” and “grass”. There was some difficulty at the trial to get him to identify it as marijuana. At one point the District Attorney asked him ‘‘ by what name would I [the District Attorney] know it ’ ’. Eventually the witness said “another name” for “pot” and “grass” by which the stuff was “ known as ” was marijuana.

He described the substance physically as ‘ ‘ like a grass and it is a pale green in color, it was very dry ”. Having smoked it, he said “I became ‘high’”, “I became like dizzy, and it was sort of like being drunk, yet I was conscious of my senses ”. On any view of the requirements of the rule that guilt must be shown beyond a reasonable doubt, the conviction and imprisonment of defendant should not rest on the judgment of the witness based on this recalled experience when he smoked the substance 17 months before the trial.

He described one previous experience six months earlier, and one experience thereafter which is described generally and in comparative terms. These isolated experiences, one of which is before the time charged in the indictment, do not afford a reliable basis to establish the technical identity of the drug which is the essence of the crime charged.

The Appellate Division’s conclusion was that the witness was not shown sufficiently qualified to support the criminal charge of selling a narcotic drug. Convictions of this character, the court noted, “ require more than the conclusion of a layman to establish the drug as one of those proscribed by statute ”.

The rule of long standing in New York was stated by Judge Werner in Dougherty v. Milliken (163 N. Y. 527, 533) that where the conclusions to be drawn from the facts “ depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence ’ ’ recourse must be had to ‘ the knowledge of men whose experience or study enables them to speak with authority ”.

It seems probable that a number of people in the general community now can, or think they can, recognize marijuana, but the resulting skill is not yet so general that the State should be willing to rest a conviction and prison sentence solely on a young person’s two or three isolated experiences with what he thinks is pot ”.

The Supreme Court of California resolved this question squarely in People v. McLean (56 Cal. 2d 660) where a 16-year-old girl who had smoked what she described as marijuana was permitted on the trial to identify the substance. The court held the evidence thus based was insufficient to sustain the conviction. “ The rule is settled that a witness is not qualified as an expert unless it is shown that he is familiar with the subject upon which he is asked to give an opinion ” (56 Cal. 2d, p. 663).

The People rely on People v. Leonard (8 N Y 2d 60). There a witness was permitted to describe a beverage called “ rye and ginger ale ’ ’ as alcoholic. Admissibility was based on the court’s view that the nature of alcoholic beverage was a “ matter of common knowledge ” (p. 62). See, also, People ex rel. Lance v. O’Reilly (129 App. Div. 522, affd. 194 N. Y. 592).

A simple basis of distinction is that up to now the world is much more experienced with alcohol than with narcotics. The decision in People v. Transamerican Frgt. Lines (24 N Y 2d 727), on which the People also rely, is not decisive of the point in issue.

The order should be affirmed.

Gibson, J. (dissenting).

The complaining witness, testified that he had smoked marijuana on other occasions and that he knew this was marijuana because it was pale green, had a musty odor with sweet-smelling smoke and caused him to become dizzy and “ high ”.

The Appellate Division unanimously reversed on the grounds (1) that the complainant was a lay witness unqualified to conclude that the substance was actually marijuana, and (2) that even if it were permissible to allow the jury to hear his description of the substance, marijuana was not within the jury’s lay knowledge to identify from such description.

The court distinguished alcohol since ‘ ‘ jurors are familiar with the appearance, taste, smell and effect of alcohol, but jurors generally are not familiar with the various types and properties of narcotics and other dangerous drugs.”

I agree that jurors may not be assumed to possess the requisite knowledge to identify marijuana from a mere description of its physical properties. However, I am not convinced that the jury may not accept a lay witness’ opinion or conclusion, based upon his experience in other encounters, that the substance which he actually smoked was marijuana. The sole test applicable to such evidence would seem to be credibility.

In People v. Leonard (8 N Y 2d 60), Judge Fosteb wrote to sustain the conviction of a tavern owner for selling to minors merely upon the testimony of one of the minors that he ordered rye and ginger ale, was served what tasted like rye and ginger ale, and paid the going price for rye and ginger ale. The actual drink, of course, was never put in evidence, nor was there any expert testimony based on any analysis of the drink. The court held (p. 62) that the People made out a case, stating: “ There is no well-considered authority to sustain the determination of the court below to the effect that the crime charged may be proven only by direct evidence as to the nature of the beverage sold.”

In the case at bar, the Appellate Division distinguished Leonard simply on the ground that the case involved alcohol» a substance with which the jury could be expected to be familiar; but this was not the basis of the Leonard decision. The jury was not asked to identify the substance simply from a naked description, but was told by the witness that an alcoholic beverage was ordered, paid for and drunk—precisely the sort of evidence in the case now before us. Thus, there is nothing in Leonard to support the suggestion in the majority opinion in the case at bar that the verdict rested on what the witness “ described ” as the properties of the drink. Clearly, he testified as to his conclusion. Indeed, the decision of the County Court in that case, as quoted (and rejected) by the Court of Appeals (8 N Y 2d 60, 61), considered as requisite to conviction an analysis or other competent evidence of the contents of the drink, and thus parallels the question posed by appellant in the case at bar — whether “ expert testimony or opinion evidence ” was essential to sustain the conviction.

What the Appellate Division has done here, it seems to me, is to hold that a narcotics conviction may rest only on admission of the substance into evidence, accompanied by a laboratory report, or at least on the testimony of an expert who at one point identified the substance even though it is no longer available. At the same time, on the basis of public education and information, and on the assumption that the indicia of drug use and traffic are recognizable, citizens are being urged to co-operate with the authorities in the identification and apprehension of sellers. It is unfortunate that forthright efforts such as these may be frustrated by the courts’ doctrinaire adherence to rules framed in another age and in quite different context ; and that, in the future as in the past, law enforcement will depend largely on clandestine arrangements with drug-ridden informers and the dropsy testimony of police officers.

The Appellate Division’s conclusion, now approved by the Court of Appeals, that a person accustomed to smoking pot is not competent to testify that on a particular occasion he smoked pot, rather than tobacco or some other substance, flies in the face of reality and of common sense as well. Equally mystifying is the rejection by both courts of the only inference reasonably to be drawn from the testimony, accepted by the jury, that the witness paid $5 for the substance and, with the seller, repaired to a secluded spot to smoke it.

The severe sentence, with which the majority opinion seems to be concerned, would unquestionably have been given careful consideration by the Appellate Division had that court sustained the finding of guilt; but it does not, in any event, afford any basis for adopting or rejecting a rule of evidence.

Accordingly, I vote to reverse the order appealed from.

Chief Judge Fuld and Judges Burke and Breitel concur with Judge Bergan ; Judge Gibson dissents and votes to reverse in a separate opinion in which Judges Soiueppi and Jasen concur.

Order affirmed. 
      
       Thus, the majority cites as applicable to the drug crisis in contemporary society, a rule formulated (in Dougherty v. Milliken, 163 N. Y. 527) in connection with a problem in metallurgy presented by an 1895 accident case.
     