PROPER FOUNDATION FOR EXPERT OPINION EVIDENCE FINDING THAT THE TESTED SUBSTANCES CONTAINED COCAINE WAS NOT LAID AND THE TESTIMONY WAS THEREFORE INADMISSIBLE; CONVICTIONS ON TWO DRUG-POSSESSION COUNTS REVERSED, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction on two drug possession counts, determined the People did not provide a proper foundation for the testimony of two experts who tested the substances alleged to contain cocaine:

The opinion testimony by these experts was inadmissible, because the People failed to lay a foundation for the competence of the testimony. “[A]n expert who tests a substance for the presence of cocaine may not rely solely upon a test involving a comparison of the substance at issue to a known standard when the accuracy of the known standard is not established” … . Here, the evidence adduced at trial reflected that Lin and Lopez each tested the purity of a sample of the substance recovered from the defendant by using a test which relied upon a comparison to a known standard. The People failed to introduce any direct evidence as to the accuracy of the standard used for comparison. Although an expert’s testimony that a substance contains cocaine is admissible when it is “not based solely upon comparative tests using a known standard but also on a series of other tests not involving known standards” … , here, the People failed to establish that either Lin or Lopez performed any other tests that did not involve comparison to a known standard. Thus, the Supreme Court should not have permitted their testimony, and a new trial is required on the counts charging criminal possession of a controlled substance in the fifth degree … . People v Campbell, 2020 NY Slip Op 03800, Second Dept 7-8-20