                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 11, 2014                   105790
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DERRICK CRISCITELLO,
                    Appellant.
________________________________


Calendar Date:   November 19, 2014

Before:   Lahtinen, J.P., Garry, Rose and Devine, JJ.

                             __________


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

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

                             __________


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 crime of criminal possession of
marihuana in the second degree.

      Defendant waived indictment and entered a guilty plea to
criminal possession of marihuana in the second degree in exchange
for a sentencing promise, as an admitted second felony offender,
of 2½ years in prison with two years of postrelease supervision
(hereinafter PRS). While awaiting sentencing, defendant was
arrested on five counts of criminal mischief in the third degree
and was remanded to jail to await sentencing. Pursuant to the
parties' understanding at the next appearance, defendant agreed
                              -2-                105790

to an enhanced prison sentence of 3½ years with two years of PRS
on his plea and to make restitution on the criminal mischief
charges, in satisfaction of those charges and a pending burglary
charge. At the next appearance on August 30, 2012, County Court
(Cawley, J.) granted defendant a one-week furlough in order to
get married, and warned him that the promised sentence was
contingent on certain conditions governing his behavior while
released. When defendant appeared for sentencing on September 6,
2012, the court remanded him to the jail for a drug test. After
County Court (Smith, J.) received notice that defendant had
tested positive for cannabinoids and indicated its intent to
enhance the sentence, a hearing was held (see People v Outley, 80
NY2d 702, 713 [1993]). An investigator with the Broome County
Sheriff's Department who conducted the test testified that
defendant's urine sample tested positive on September 6, 2012.
The court determined that defendant had consumed marihuana while
on his furlough in violation of the stated conditions, and
imposed an enhanced prison sentence of 4½ years with two years of
PRS. Defendant now appeals.

      Initially, we are not persuaded by defendant's contention
that County Court erred in relying upon the urinalysis test
results, as the investigator's testimony adequately established
that proper testing procedures were followed (see People v
Whalen, 1 AD3d 633, 634-635 [2003], lv denied 1 NY3d 603 [2004]).
However, we find merit in defendant's argument, preserved by
objection at sentencing (see People v Straight, 106 AD3d 1190,
1191 [2013]), that the People failed to establish at the
enhancement hearing that he violated a condition of his furlough,
as the proof did not demonstrate when he used marihuana, i.e.,
that it occurred during, rather than prior to, his furlough.
When the court granted defendant a one-week furlough, it warned
him that it would enhance his prison sentence to 4½ years if he
were "charged with any 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"
(emphasis added), the enhanced sentence would be imposed. At the
hearing, while the investigator testified that defendant's test
was positive for THC, he was not able to estimate the date when
defendant used marihuana, and conceded that it could have been
months earlier; he also recounted that defendant stated, after
                                -3-                105790

being told of the positive test result, that "he had 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 be metabolized and
excreted in the urine" and that the "general time" established
for cannabinoids with "chronic use" is "less than 30 days
typical."1   Defendant admitted to previously being a daily,
heavy user of marihuana, and testified that he did not use
marihuana during his furlough.

      Given the foregoing, we find that the People did not prove
by a preponderance of the evidence (see People v Clough, 306 AD2d
556, 557 [2003], lv denied 100 NY2d 593 [2003]) – and the court
did not have a "legitimate basis" for concluding – that defendant
used marihuana during his furlough (People v Outley, 80 NY2d at
713; see People v Fiammegta, 14 NY3d 90, 96-98 [2010]; compare
People v Purcelle, 107 AD3d 1050, 1051-1052 [2013]; People v
Straight, 106 AD3d at 1191-1192 [2013]).2 Further, contrary to
the court's understanding, defendant was not advised, when
granted a furlough, that if he "tested positive" for drugs when
he returned he would receive an enhanced sentence. Accordingly,
the sentence must be vacated and the matter remitted to County
Court to either impose the original agreed-upon sentence or to
give defendant an opportunity to withdraw his plea (see People v
Tole, 119 AD3d 982, 984 [2014]; People v Becker, 80 AD3d 795,
796-797 [2011]).

        Lahtinen, J.P., Rose and Devine, JJ., concur.




    1
         The general time listed for single use is "1-7 days."
    2
        The investigator testified that he attempted to repeat
the urine test four hours later, but the controls on the test
were not triggered because defendant provided a cold, non-urine
sample; County Court found that this evinced defendant's
consciousness of guilt. Nonetheless, this did not provide
evidence of when defendant ingested marihuana.
                              -4-                  105790

      ORDERED that the judgment is modified, on the law, by
vacating the sentence imposed; matter remitted to the County
Court of Broome County for further proceedings not inconsistent
with this Court's decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
