—Order of the Supreme Court, New York County (Stephen G. Crane, J.), entered April 9, 1992, which set aside defendant’s conviction, after jury trial, of criminal possession of a cоntrolled substance in the first degree, and directed a new trial, unanimously reversed, on the law, and the conviction reinstated.
At the time of his arrest, defendant was seen tossing three clear plastic sandwich bags, appearing to contain crack cocaine, to an accomplice who threw them оut of a window. A backup officer on the street observed a young, teen-aged girl wiping a white, powdery substance out of her hair and recovered a сlear plastic sandwich bag lying nearby as well as some small chunks of a substance from the pavement near the bag. Upon inspection, the bag was seen to have a tear in its side.
A second backup officer also recovered a clear plastic bag that was apparently undamaged and had a knot tied at the top. The two bags were handed to a third officer who placed them in a brown paper bag. This officer testified that he "believed” hе placed the loose pieces of crack into the brown paper bag and not the torn plastic bag. The evidence was turned over to the arresting officer who then vouchered it, in accordance with standard procedure, in the presence of the Precinct desk officer. At trial, both оf the officers who had recovered the bags identified the knotted bag as the one that he had recovered from the street.
A police chemist testifiеd that the evidence packet containing the two plastic bags and a brown paper bag was received with the seal intact. The chemist did not reсall putting the knot in the first bag but responded affirmatively to the trial court when asked if it was his habit to knot bags in this fashion. The chemist could not remember if any pieces hаd fallen out of the bags during handling or if pieces had fallen into the brown paper bag. Nor did he recall the condition of
The bags were removed from the evidence packet and exhibited to the jurors at trial, at whiсh time it became apparent that the knot in one bag concealed a hole the size of a quarter and that the second bag had a 3 to 4-inch tеar down the side, through which the contents spilled out.
On cross-examination of the police chemist, it was elicited that the chunks of crack were noted to contain moisture and that the samples were dried before weighing. None of the police officers noted any wetness in the substance, and the weathеr conditions at the time of defendant’s arrest were clear and dry. However, the chemist testified that moisture could be present as a result of "many things”, including the сrack having been "just cooked”.
The jury returned a verdict of guilty on the charge of criminal possession of a controlled substance in the first degree. Defеndant moved to set aside the verdict on the ground the drugs were erroneously admitted into evidence. Defendant argued the People had not compliеd with the foundation requirements of People v Julian (
Upon reargument of the motion, however, the court concluded that, as a result of the number of discrepancies in the condition of the evidence from the time it was recovered by the police to the time it was analyzed, "we have transcended the Sarmiento rule” that the discrepancies go only to the weight of the evidence. As authors of that rule, we do not agree.
The question presented is whether the record on appeal supports any of Supreme Court’s findings of discrepancies in the condition of the evidence. The court states that the police recovered "one bag thаt was not ripped and one that was, and both bags ended up in the hands of the chemist in a ripped condition, there’s no explanation for that.” In fact, when the knotted bag was being exhibited to the jury, it was the court
The same may be said of the court’s conclusion that the absence of chunks of crack cocaine in the brown paper bag indicates that the evidence received at the laboratory was not the same as that vouchered by the arresting officer. Contrary to the court’s finding, however, the police chemist did not testify that there were no loose particles in the brown paper bag. Rather, he testified that he did not recall whether any of the drugs had spillеd out of either bag, but confirmed that his report made mention of only the contents of the two plastic bags. It is hardly unlikely that the presence of a severаl-inch tear in one of the bags might have led the chemist to assume that any loose sample came from the torn bag. The court itself, upon noticing that the contents were spilling out when the bag was exhibited to the jurors, directed the court officer, "Keep it over the envelope. The substances are spilling. Put it bаck in.”
While the "wetness” or moisture content of the sample was deemed by the Trial Justice to have been adequately explained by the chemist’s testimony thаt it was recently "cooked”, it should be further observed that there was no testimony by the chemist to the effect that the substance felt wet to the touch. In fact, hе testified that the sample was handled only with rubber gloves and that moisture was detected only by placing the substance on tissue and observing wetness on the paper. Therefore, the absence of any observation of "wetness” in the drugs by the police officers who recovered them at the scene does not necessarily contradict the police chemist’s finding, by more scientific means, that the drugs contained sufficient moisture to affect the weight of the samplе.
The only discrepancy supported by the record before us is in the testimony of the two backup officers, each of whom identified the same bag as thе one he recovered at the scene. It is clear, however, that two bags containing what appeared to be crack cocaine were received from the two officers and vouch