People v Criscitello

2014 NY Slip Op 08678 [123 AD3d 1235]

December 11, 2014

Appellate Division, Third Department

As corrected through Wednesday, January 28, 2015

[*1]

The People of the State of New York, Respondent, vDerrick Criscitello, Appellant.

Jay L. Wilber, Public Defender, Binghamton (Judy Valek of counsel), forappellant.

Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.

Garry, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered September 21, 2012, convicting defendant upon his plea of guilty of the crimeof criminal possession of marihuana in the second degree.

Defendant waived indictment and entered a guilty plea to criminal possession ofmarihuana in the second degree in exchange for a sentencing promise, as an admittedsecond felony offender, of 21/2 years in prison with two years ofpostrelease supervision (hereinafter PRS). While awaiting sentencing, defendant wasarrested on five counts of criminal mischief in the third degree and was remanded to jailto await sentencing. Pursuant to the parties' understanding at the next appearance,defendant agreed to an enhanced prison sentence of 31/2 years with twoyears of PRS on his plea and to make restitution on the criminal mischief charges, insatisfaction of those charges and a pending burglary charge. At the next appearance onAugust 30, 2012, County Court (Cawley, J.) granted defendant a one-week furlough inorder to get married, and warned him that the promised sentence was contingent oncertain conditions governing his behavior while released. When defendant appeared forsentencing on September 6, 2012, the court remanded him to the jail for a drug test. AfterCounty Court (Smith, J.) received notice that defendant had tested positive forcannabinoids and indicated its intent to enhance the sentence, a hearing was held (seePeople v Outley, 80 NY2d 702, 713 [1993]). An investigator with the BroomeCounty Sheriff's Department who conducted the test testified that defendant's urinesample tested positive on September 6, 2012. The court determined that defendant hadconsumed marihuana while on his [*2]furlough inviolation of the stated conditions, and imposed an enhanced prison sentence of41/2 years with two years of PRS. Defendant now appeals.

Initially, we are not persuaded by defendant's contention that County Court erred inrelying upon the urinalysis test results, as the investigator's testimony adequatelyestablished that proper testing procedures were followed (see People v Whalen, 1 AD3d633, 634-635 [2003], lv denied 1 NY3d 603 [2004]). However, we findmerit in defendant's argument, preserved by objection at sentencing (see People v Straight, 106AD3d 1190, 1191 [2013]), that the People failed to establish at the enhancementhearing that he violated a condition of his furlough, as the proof did not demonstratewhen he used marihuana, i.e., that it occurred during, rather than prior to, hisfurlough. When the court granted defendant a one-week furlough, it warned him that itwould enhance his prison sentence to 41/2 years if he were "charged withany criminal conduct" or "arrested for any reason" and that, "[w]hile you are out,if you engage in the use of any illegal drugs or alcohol and I find out about it" (emphasisadded), the enhanced sentence would be imposed. At the hearing, while the investigatortestified that defendant's test was positive for THC, he was not able to estimate the datewhen defendant used marihuana, and conceded that it could have been months earlier; healso recounted that defendant stated, after being told of the positive test result, that "hehad been smoking in the jail prior to his furlough" (emphasis added). Moreover,the reference guide for the test, which was admitted into evidence at the hearing,indicates that "[m]any factors influence the length of time required for drugs to bemetabolized and excreted in the urine" and that the "general time" established forcannabinoids with "chronic use" is "less than 30 days typical."^[FN1] Defendant admitted to previously beinga daily, heavy user of marihuana, and testified that he did not use marihuana during hisfurlough.

Given the foregoing, we find that the People did not prove by a preponderance of theevidence (see People v Clough, 306 AD2d 556, 557 [2003], lv denied100 NY2d 593 [2003])—and the court did not have a "legitimate basis" forconcluding—that defendant used marihuana during his furlough (People vOutley, 80 NY2d at 713; seePeople v Fiammegta, 14 NY3d 90, 96-98 [2010]; compare People v Purcelle,107 AD3d 1050, 1051-1052 [2013]; People v Straight, 106 AD3d at1191-1192 [2013]).^[FN2] Further, contrary to the court'sunderstanding, defendant was not advised, when granted a furlough, that if he "testedpositive" for drugs when he returned he would receive an enhanced sentence.Accordingly, the sentence must be vacated and the matter remitted to County Court toeither impose the original agreed-upon sentence or to give defendant an opportunity towithdraw his plea (see People vTole, 119 AD3d 982, 984 [2014]; People v Becker, 80 AD3d 795, 796-797 [2011]).

Lahtinen, J.P., Rose and Devine, JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the County Court ofBroome County for further proceedings not [*3]inconsistent with this Court's decision; and, as so modified,affirmed.

Footnote 1:The general time listedfor single use is "1-7 days."

Footnote 2:The investigator testifiedthat he attempted to repeat the urine test four hours later, but the controls on the test werenot triggered because defendant provided a cold, non-urine sample; County Court foundthat this evinced defendant's consciousness of guilt. Nonetheless, this did not provideevidence of when defendant ingested marihuana.