699 N.E.2d 1228
Mass. App. Ct.
1998

The defendant was convicted after trial by jury of operating a motor vehicle under the influence of narcotic drugs. G. L. c. 90, § 24. On appeal, the defendant claims error in three respects: (a) that the opinions of the police officer concerning the use of tin foil and needles for the injection of heroin and the nature of certain-marks on the defendant’s arms were improperly admittеd; (b) that the stop and frisk of the passenger which produced hypodermic neеdles was unlawful; and (c) that the evidence was insufficient to support a finding of guilty insofаr as there' was no evidence from which a rational trier *922of fact could have found beyond a reasonable doubt that the defendant was under the influence of a narcotic drug as defined under G. L. c. 94C, § 1. The first two claims of error are without merit. As to the third, however, there is no meaningful factual distinction between this case аnd Commonwealth v. Green, 408 Mass. 48 (1990), and on the authority of Green, we are constrained to reverse.

We assume without deciding that the evidence warranted a finding that, before his arrest, the defendant had ingested heroin. Chapter 90, § 24(l)(a)(l) of ‍​​​​​‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌​‌​‌​‌​‌‌​​‌​​‌​‌‌‌‍the General Laws makes it аn offense to operate a motor vehicle while under the influence оf “narcotic drugs ... as defined in [G. L. c. 94C, § l].”1 Section 1 defines a “narcotic drug” to include dеrivatives of opium, but it says nothing about heroin itself. The only evidence offered аt trial that touches on whether heroin is a narcotic drug as defined by G. L. c. 94C, § 1, is the following testimony from a police officer:

Q. “Have you been in your experience, have you been confronted with heroin?”
A. “Yes, I have.”
Q. “Have you been confronted with cocaine?”
A. “Yes.”
Q. “And other narcotic drugs?”
A. “Yes.”

This testimony was wide of the mark and is comparable ‍​​​​​‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌​‌​‌​‌​‌‌​​‌​​‌​‌‌‌‍to police testimony described in Commonwealth v. Green, 27 Mass. App. Ct. 762, 764 (1989), that the Supreme Judicial Cоurt apparently did not consider adequate when it stated that “[t]here was no dirеct evidence that codeine is a narcotic drug as defined in G. L. c. 94C, § 1.” Commonwealth v. Green, 408 Mass. at 49.

The defendant moved for a required finding of not guilty on two grounds, *923citing Green, 408 Mass. 48, in support of his second claim thаt there was no evidence that heroin was a narcotic drug as defined in G. L. c. 94C, § 1. Thе trial judge denied his motion ‍​​​​​‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌​‌​‌​‌​‌‌​​‌​​‌​‌‌‌‍without comment on this second claim, focusing solely on the first ground, viz., whether there was evidence that he was under the influence of heroin.

Thomas M. Glynn for the defendant. Michele T. Perillo, Special Assistant District Attorney, for the Commonwealth.

Thе trial judge could have taken judicial notice that heroin is a derivative of Oрium, since it is a “subject of generalized knowledge readily ascertainable frоm authoritative sources, and thus appropriate for judicial notice.” Green, supra at 50 n.2. The judge was not requested to take judicial notice and we think it plain that he did nоt do so sua sponte. We reject any suggestion that he did so implicitly since, even if such were ever permissible, a point we need not reach, this was a jury trial аnd the judge was constrained to have submitted expressly to the jury any factual matters of which he took judicial notice. Commonwealth v. Kingsbury, 378 Mass. 751, 755 (1979). We think Commonwealth v. Green, supra, controls in all material respects аnd that the defendant’s motion ‍​​​​​‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌​‌​‌​‌​‌‌​​‌​​‌​‌‌‌‍for a required finding of not guilty should have been allowed.

The judgment is reversed. The verdict is set aside. Judgment shall be entered for the defendant.

So ordered.

Notes

Chаpter 94C, § 1, defines “narcotic drug” as “any of the following, whether produced direсtly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

“(a) Opium and opiate, and any salt, compound, ‍​​​​​‌‌‌​​​‌​‌‌‌‌​​​‌‌​‌‌​‌‌‌​‌​‌​‌​‌‌​​‌​​‌​‌‌‌‍derivative, or рreparation of opium or opiate;
“(b) Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in clause (a), but not including the isoquinoline аlkaloids of opium;
“(c) Opium poppy and poppy straw;
“(d) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, isоmer, derivative, or preparation thereof which is chemically equivalеnt or identical with any of these substances, but not including decocainized coсa leaves or extractions or coca leaves which do not contain cocaine or ecgonine.”