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The case was adjourned

The defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree and was sentenced to one year in jail. The defendant has moved to have the court set aside his sentence. A hearing on the defendant’s motion was held.

The court has presided over Manhattan Treatment Court (MTC) and Drug Treatment Alternative Program (D-TAP) cases since 1998. MTC is a drug treatment program administered by the court as an alternative to incarceration offered to drug possession addicted first time felony offenders which, if successfully completed, results in dismissal of the defendant’s case. Successful completion requires that the defendant be drug free for 12 months, follow the rules and regulations of MTC, and satisfactorily complete an independent drug treatment program. If a defendant fails to successfully complete the program, the defendant is sentenced to one year in jail. Toxicology tests are used by this court and treatment courts throughout the nation to monitor defendants. The defendants are rewarded when their toxicology tests are negative, indicating that they have maintained their sobriety and sanctioned when their toxicologies are positive, indicating that they have relapsed. The defendants entering MTC are told that they control their fate. The court tries to do everything in its power to assist the defendant to deal with his or her addiction. To that end MTC tries to individualize its treatment of the defendants while maintaining a series of graduated sanctions and rewards. The defendants know what is required of them to successfully complete treatment.

When a defendant tests positive for an illicit drug and denies using that drug, MTC splits the test cup. A test cup is split is when the urine sample in the first test cup is poured into a second test cup. If the urine tests positive in the second test cup, the results obtained from the first test cup are confirmed and the results of both test cups are sufficient to establish that the defendant did in fact use an illicit drug. This type of confirmatory testing was approved of by the Court of Appeals.

A member of the New York City Police Department obtained a search warrant, authorizing the search of an apartment in New York County. The search warrant was executed and New York City police officers seized a quantity of cocaine, various items used for the packaging of cocaine, and money. The defendant, who was in the apartment at the time of the search, was arrested. The defendant was charged in a felony complaint with the crime of criminal possession of a controlled substance in the third degree. The defendant waived prosecution by indictment and agreed to be prosecuted by a Superior Court Information (SCI). The SCI, filed by the prosecution charged the defendant with criminal possession of a controlled substance in the fourth degree, which carries a maximum penalty of 5 to 15 years incarceration. The defendant pleaded guilty with the understanding that he would be evaluated and considered for the MTC. Ordinarily, treatment court is not offered to a defendant who was the subject of a search warrant or whose residence was the subject of a search warrant. The court made an exception for the defendant, initially with the caveat that he be placed in a residential program. The defendant was told that if he was accepted into MTC, and successfully completed MTC, his case would be dismissed. The defendant was also told that if he did not successfully complete MTC, he would be sentenced to one year in jail. The case was adjourned for the MTC staff to evaluate the defendant and report to the court with a recommendation for the defendant’s treatment.

To Be Cont….

Following the adjournment of the defendant’s case, he was tested for any recent drug use and he tested positive for marijuana.

The court received a letter indicating that the defendant was diagnosed with several significant illnesses. The letter also set forth nine medications the defendant was taking at that time. MTC filed a report finding that the defendant was appropriate for acceptance into MTC. However, the report also stated that due to the defendant’s numerous medical problems, placement in a residential treatment program might not be possible. The report also indicated that the defendant tested positive for marijuana on November 24, 2003, November 28, 2003, and December 1, 2003. The case was adjourned for placement into a program.

On December 10, 2003, the court was informed that the defendant was not eligible for placement due to his inability to speak English. MTC also informed the court that on December 5, 2003, the defendant tested negative for any illegal drugs. The case was adjourned to December 17, 2003, and on that date, MTC reported to the court that the defendant was rejected from another program due to his medical history. It was also reported that the defendant tested negative for any illegal drug on December 12, 2003, and December 15, 2003.

On December 24, 2003, the court was informed that the defendant had been accepted into an out-patient drug treatment program. The defendant entered into a plea agreement which provided that, upon successful completion of MTC, the defendant’s case would be dismissed. The agreement also provided that if the defendant failed to successfully complete MTC, the defendant would be sentenced to one year in jail. The defendant was to begin on December 29, 2003. The court was also advised that the defendant tested negative for any illegal drugs on December 19, 2003.

On January 2, 2004, the court was informed that when the defendant was tested positive for cocaine. When the defendant was tested at the MTC office that afternoon, the test result was negative for cocaine. The defendant was tested and three tests were negative for any illegal drugs.

The defendant again tested positive for cocaine on January 20, 2004 and negative for cocaine when he was later tested at MTC. The defendant denied using cocaine. When the defendant appeared in court that day, he was warned that if he tested positive for any illegal substance again, he would be sentenced.

MTC provided the court with a Treatment Update report which included a progress form from El Rio that indicated that the defendant tested negative for any illegal drugs on six separate tests. MTC also informed the court that defendant tested positive for cocaine on February 18, 2004. The case was adjourned for the defendant to be sentenced. On March 10, 2004, the defendant was given the option of going back to residential treatment in lieu of being sentenced. The defendant chose to be sentenced and the defendant was sentenced to one year in jail.

To Be Cont….

The defendant moves to set aside his sentence on the grounds that he was denied due process, arguing that he was incarcerated based upon a factual error, and to set aside his one year sentence as cruel and unusual punishment. The defendant requests that, if his sentence is set aside, he be reinstated into a drug program with the understanding that all positive toxicologies will be confirmed by a gas chromotography/mass spectrometry test (GC/MS). The burden is on the defendant to prove by a preponderance of the evidence every fact essential to support the motion.

The defendant’s challenges are based upon the allegation that, when the defendant tested positive for cocaine on February 18, 2004, and denied using cocaine, the MTC staff did not split the defendant’s test cup, thereby not only failing to follow their own procedures but also failing to legally establish that the defendant was in fact positive for cocaine. The defendant asserts that his sentence is cruel and unusual. He argues that it is likely that his cocaine possession was for his own personal use, and therefore the possession is not a grave offense, and that due to his medical situation, he poses no risk to society.

A toxicologist testified that the he is familiar with the test cup used by MTC. He stated that the test is an immunoassay type of test used for screening urine for different types of drugs. He explained that immunoassay tests are designed to separate out potentially or presumptively positive drug-type tests from those that are negative. Again, they are all screening tests. He opined that in view of the fact that positives from these tests are only presumptive, they must be confirmed by a second technique, a technique that provides what is known as structurally specific information in order to be reasonably certain that a positive result is not a false result.
He explained that immunoassay tests are reliable as a screening test but they can be subject to a variety of so-called false positives. Therefore, in view of the fact that immunoassay tests are subject to interference which GC/MS tests are not, GC/MS tests are more reliable that immunoassay tests.

The toxicologist also testified that in theory none of the medications taken by the defendant should test positive for cocaine. He did, however, emphasize that in a poly-drug situation there is an inherent potential for cross reactivity. Arson was not involved.

The People’s witness, a Roche Varian Strategic Account Manager, testified that the TesTcup Five is 99% accurate compared to GC/MS test. The Account Manager also testified that he does not know if the medications, taken by the defendant, in any combination, could cause a false positive test result. The Account Manager testified that he agreed with everything that the toxicologist had testified to except that he believes that the immunoassay test is reliable as a confirmatory test.

To e Cont…

Finally, the parties entered into a stipulation that when the defendant tested positive for cocaine, a member of the MTC staff split the test cup. The second test cup also indicated that the defendant’s urine was positive for cocaine.

In view of the fact that the test cup was split, the defendant withdrew his argument based upon the failure to split the test cup. Instead, the defendant argued that due to the multiple medications he is taking, the test cup’s positive result should have been confirmed by a GC/MS test and that since the positive result was not confirmed by a GC/MS test, it cannot be determined that the defendant was in fact positive for cocaine on February 18, 2004.
In oral argument after the hearing, the defendant acknowledging the fact that the test cup was split has conceded the reliability of the Roche Varian TesTcup Five test in most situations. However, in view of the defendant’s use of a multiple of legally prescribed drugs, the defendant does challenge the validity of the test in this case. The defendant argues that the variety of drugs taken by him could have resulted in false positive result. The criminal defendant asserts that due to the possibility of a false positive, the Roche Varian TesTcup Five test should have been confirmed by a GC/MS test. The defendant contends that since the Roche Varian TesTcup Five test result was not confirmed by a GC/MS test, there is no proof that he was actually positive for cocaine on February 18, 2004. Thus, the defendant argues that his decision to be sentenced was based upon evidence that might have been false.

The defendant’s argument fails due to his inability to prove, by a preponderance of the evidence, with any degree of medical certainty, that the medications taken by the defendant could cause a false positive. Based upon the facts in this case, it is fair to say that the combination of the medications did not cause a false positive result.

From the inception of the defendant’s case, up to and including February 18, 2004, the defendant’s urine was tested 21 times, for the purpose of determining whether the defendant was using any illicit drugs. While the defendant was apparently taking the multiple medications continually from the time of his arrest, defendant tested negative for cocaine 18 times and positive for cocaine 3 times during this period. The fact that the defendant tested negative in 86 % of the tests during the period that he was taking the multiple medications, indicates that the medications taken together did not contribute to the positive toxicological results.

Obviously, some substance, other than the medications taken by the defendant, must have caused a positive result. There is no reason to believe that the substance was anything other than cocaine or marijuana.

Based upon the fact that the court finds that the results of test provided an accurate determination that the defendant was positive for cocaine and that when offered residential treatment, the defendant chose to be sentenced; the court finds that the defendant was not denied due process.

Admitting to a crime to reduce or lighten jail time does not make the person fully accept that he did wrong. If someone continues to commit the same crime over again, a New York City Drug Crime Lawyer together with the New York Criminal Attorney from Stephen Bilkis and Associates can assist you in exploring your legal action.

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