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 21⁄2 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
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to an enhanced prison sentence of 31⁄2 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 41⁄2 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 41⁄2 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
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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.
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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