Issue: Whether a criminal complaint that alleges only that someone possessed synthetic cannabinoids is jurisdictionally deficient if it does not contain a basis for knowing the substance’s chemical composition.

Held: Allegations not demonstrating that the chemical composition is a prohibited one are insufficient.

CAL Observes: In these politically and jurisprudentially divided times, this was a rare moment of unanimity and clarity. And the Court undoubtedly got it right. In People v. Kalin, 12 N.Y.3d 225 (2009), the Court had held that a laboratory report was not necessarily required to make out a prima facie case that someone possessed an illegal substance. This gave police more power to rely on “training and experience” to identify substances and assert their possession.

But synthetic cannabinoids (commonly, “K2”) are outlawed based on their chemical composition, and the illegal substance itself can be applied to different, common materials, like tobacco or incense. Yet, courts (including intermediate appellate ones) had been perpetuating the fiction that police officers could tell a substance contained K2 simply by visually and olfactorily observing it. In fact, here the officer had averred in the criminal complaint that he saw Hill with a ziplock bag of “shredded dried plant-like material” that had “a chemical odor,” a more than perfunctory allegation.

The Court of Appeals put this idea to rest. Practically speaking, without a lab report, determining that a substance contains one of the proscribed synthetic cannabinoids is impossible. Thus, one is required before someone can properly be charged with and asked to plead to an offense involving its possession or sale.

That said, the Court seemed to be signaling to the Legislature that it should broaden the list to keep up with the ever-changing chemical forms that synthetic cannabinoids can take. Absent legislative action, though, people can’t be charged with controlled substance (K2) possession based on mere observations.