Judge John Wilson
Irizarry was charged with criminal possession of a controlled substance. He moved for dismissal of the charge arguing the complaint was facially insufficient. An officer allegedly observed Irizarry smoking a lit cigarette, claiming it contained Phencyclidine (PCP), and that Irizzary dropped the cigarette by his foot as the officer approached. The officer argued that based on his training and experience he believed the substance recovered was PCP, stating he received training in recognizing controlled substances, including their packaging and labels on containers. However, the court stated a "lit cigarette" was not packaging to indicate to anyone, regardless of training and experience, the presence of PCP. It also ruled there was no allegation the lit cigarette included any label on a container by which the officer could ascertain the presence of the alleged controlled substance. The court concluded the complaint’s allegations were conclusory and violated the standards for the requirements of an information under People v. Kalin. It stated prosecution under this accusatory instrument was a violation of Irizarry’s right to due process. The court gave prosecutors an opportunity to supercede the complaint and cure the defect.
