positive drug test in New York

2017The misbehavior report, testimony of its author who administered the drug tests and a master drug test trainer who confirmed that the proper testing procedures were followed, as well as the positive drug test reports, provide substantial evi dence to support the determination of guilt (see Matter of Kaid v Prack, 140 AD3d 1511, 1511 [2016]).

2017The misbehavior report, testimony of its author who administered the drug tests and a master drug test trainer who confirmed that the proper testing procedures were followed, as well as the positive drug test reports, provide substantial evi dence to support the determination of guilt (see Matter of Kaid v Prack, 140 AD3d 1511, 1511 [2016]).

2014The misbehavior report, the hearing testimony, the transcript of the telephone conversation between petitioner and the acquaintance and the positive drug test results provide substantial evidence supporting the determination of guilt (see Matter of Staine v Fischer, 111 AD3d 999, 999 [2013]; Matter of Rodriguez v Fischer, 111 AD3d 998, 998 [2013]).

2014The misbehavior report, the hearing testimony, the transcript of the telephone conversation between petitioner and the acquaintance and the positive drug test results provide substantial evidence supporting the determination of guilt (see Matter of Staine v Fischer, 111 AD3d 999, 999 [2013]; Matter of Rodriguez v Fischer, 111 AD3d 998, 998 [2013]).

2014The misbehavior report, the hearing testimony, the transcript of the telephone conversation between petitioner and the acquaintance and the positive drug test results provide substantial evidence supporting the determination of guilt (see Matter of Staine v Fischer, 111 AD3d 999, 999 [2013]; Matter of Rodriguez v Fischer, 111 AD3d 998, 998 [2013]).

2014The misbehavior report, the hearing testimony, the transcript of the telephone conversation between petitioner and the acquaintance and the positive drug test results provide substantial evidence supporting the determination of guilt (see Matter of Staine v Fischer, 111 AD3d 999, 999 [2013]; Matter of Rodriguez v Fischer, 111 AD3d 998, 998 [2013]).

2014Further, inasmuch as the rehearing was commenced within the time pe riod prescribed in the Department of Corrections and Community Supervision’s reversal memorandum and proper extensions were obtained, the rehearing was commenced and completed in a timely manner (see Matter of Spaulding v Goord, 15 AD3d 768, 768-769 [2005]).

2014Further, inasmuch as the rehearing was commenced within the time pe riod prescribed in the Department of Corrections and Community Supervision’s reversal memorandum and proper extensions were obtained, the rehearing was commenced and completed in a timely manner (see Matter of Spaulding v Goord, 15 AD3d 768, 768-769 [2005]).

2022Matter of Brinson v Safir , 255 AD2d 247 [1st Dept 1998], lv denied 93 NY2d 805 [1999]; see also Matter of Samuel v Goord , 277 AD2d 584, 585 [3d Dept 2000]).

2022Matter of Brinson v Safir , 255 AD2d 247 [1st Dept 1998], lv denied 93 NY2d 805 [1999]; see also Matter of Samuel v Goord , 277 AD2d 584, 585 [3d Dept 2000]).

2013Further, a second test was not required to confirm the positive NIK test result (see Matter of Fero v Prack, 108 AD3d 1004, 1005 [2013]; 7 NYCRR 1010.4 [e]; 1010.8 [c]), which was supported by the visitor’s admission that he was smuggling heroin (see Matter of Darnell v Kuhlmann, 145 AD2d 852, 853 [1988]; see also Matter of McKoy v Bezio, 67 AD3d 1232 [2009]).

2013Further, a second test was not required to confirm the positive NIK test result (see Matter of Fero v Prack, 108 AD3d 1004, 1005 [2013]; 7 NYCRR 1010.4 [e]; 1010.8 [c]), which was supported by the visitor’s admission that he was smuggling heroin (see Matter of Darnell v Kuhlmann, 145 AD2d 852, 853 [1988]; see also Matter of McKoy v Bezio, 67 AD3d 1232 [2009]).

2013Under all of the circumstances presented here, “the presumption that the defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like that committed by the defendant was excessively harsh, has not been rebutted” (People v Berry, 89 AD3d at 956 ; see People v Green, 110 AD3d 825 [2013]; People v Concepcion, 85 AD3d 811, 812 [2011]).

2013Under all of the circumstances presented here, “the presumption that the defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like that committed by the defendant was excessively harsh, has not been rebutted” (People v Berry, 89 AD3d at 956 ; see People v Green, 110 AD3d 825 [2013]; People v Concepcion, 85 AD3d 811, 812 [2011]).

2013According deference to Family Court’s determination to discredit respondent’s claimed ignorance of the mother’s longstanding drug problem (see Matter of Shay-Nah FF. [Theresa GG.], 106 AD3d 1398 , 1401 [2013], lv denied 21 NY3d 863 [2013]; Matter of Izayah J. [Jose I.], 104 AD3d 1107 , 1109 [2013]), we find a sound and substantial basis in the record for the determination that he neglected Julian (see Matter of Stevie R. [Arvin R.], 97 AD3d at 907-908; Matter of Niviya K. [Alfonzo M.], 89 AD3d 1027, 1028 [2011]; Matter of Kimberly Z. [Jason Z.], 88 AD3d at 1185 ).

2013According deference to Family Court’s determination to discredit respondent’s claimed ignorance of the mother’s longstanding drug problem (see Matter of Shay-Nah FF. [Theresa GG.], 106 AD3d 1398 , 1401 [2013], lv denied 21 NY3d 863 [2013]; Matter of Izayah J. [Jose I.], 104 AD3d 1107 , 1109 [2013]), we find a sound and substantial basis in the record for the determination that he neglected Julian (see Matter of Stevie R. [Arvin R.], 97 AD3d at 907-908; Matter of Niviya K. [Alfonzo M.], 89 AD3d 1027, 1028 [2011]; Matter of Kimberly Z. [Jason Z.], 88 AD3d at 1185 ).

2013According deference to Family Court’s determination to discredit respondent’s claimed ignorance of the mother’s longstanding drug problem (see Matter of Shay-Nah FF. [Theresa GG.], 106 AD3d 1398 , 1401 [2013], lv denied 21 NY3d 863 [2013]; Matter of Izayah J. [Jose I.], 104 AD3d 1107 , 1109 [2013]), we find a sound and substantial basis in the record for the determination that he neglected Julian (see Matter of Stevie R. [Arvin R.], 97 AD3d at 907-908; Matter of Niviya K. [Alfonzo M.], 89 AD3d 1027, 1028 [2011]; Matter of Kimberly Z. [Jason Z.], 88 AD3d at 1185 ).

2013According deference to Family Court’s determination to discredit respondent’s claimed ignorance of the mother’s longstanding drug problem (see Matter of Shay-Nah FF. [Theresa GG.], 106 AD3d 1398 , 1401 [2013], lv denied 21 NY3d 863 [2013]; Matter of Izayah J. [Jose I.], 104 AD3d 1107 , 1109 [2013]), we find a sound and substantial basis in the record for the determination that he neglected Julian (see Matter of Stevie R. [Arvin R.], 97 AD3d at 907-908; Matter of Niviya K. [Alfonzo M.], 89 AD3d 1027, 1028 [2011]; Matter of Kimberly Z. [Jason Z.], 88 AD3d at 1185 ).

2013With respect to that charge, the misbehavior report, testimony and reports of the investigator and the positive drug test provide substantial evidence to support the determination of guilt (see Matter of Smith v Unger, 100 AD3d 1171 [2012]; Matter of Shorter v Prack, 100 AD3d 1178, 1179 [2012]).

2013With respect to that charge, the misbehavior report, testimony and reports of the investigator and the positive drug test provide substantial evidence to support the determination of guilt (see Matter of Smith v Unger, 100 AD3d 1171 [2012]; Matter of Shorter v Prack, 100 AD3d 1178, 1179 [2012]).

2013Further, a second test was not required to confirm the positive NIK test result (see Matter of Fero v Prack, 108 AD3d 1004, 1005 [2013]; 7 NYCRR 1010.4 [e]; 1010.8 [c]), which was supported by the visitor’s admission that he was smuggling heroin (see Matter of Darnell v Kuhlmann, 145 AD2d 852, 853 [1988]; see also Matter of McKoy v Bezio, 67 AD3d 1232 [2009]).

2013Further, a second test was not required to confirm the positive NIK test result (see Matter of Fero v Prack, 108 AD3d 1004, 1005 [2013]; 7 NYCRR 1010.4 [e]; 1010.8 [c]), which was supported by the visitor’s admission that he was smuggling heroin (see Matter of Darnell v Kuhlmann, 145 AD2d 852, 853 [1988]; see also Matter of McKoy v Bezio, 67 AD3d 1232 [2009]).

2013Further, a second test was not required to confirm the positive NIK test result (see Matter of Fero v Prack, 108 AD3d 1004, 1005 [2013]; 7 NYCRR 1010.4 [e]; 1010.8 [c]), which was supported by the visitor’s admission that he was smuggling heroin (see Matter of Darnell v Kuhlmann, 145 AD2d 852, 853 [1988]; see also Matter of McKoy v Bezio, 67 AD3d 1232 [2009]).

2013Further, a second test was not required to confirm the positive NIK test result (see Matter of Fero v Prack, 108 AD3d 1004, 1005 [2013]; 7 NYCRR 1010.4 [e]; 1010.8 [c]), which was supported by the visitor’s admission that he was smuggling heroin (see Matter of Darnell v Kuhlmann, 145 AD2d 852, 853 [1988]; see also Matter of McKoy v Bezio, 67 AD3d 1232 [2009]).

2013Under all of the circumstances presented here, “the presumption that the defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like that committed by the defendant was excessively harsh, has not been rebutted” (People v Berry, 89 AD3d at 956 ; see People v Green, 110 AD3d 825 [2013]; People v Concepcion, 85 AD3d 811, 812 [2011]).

2013Under all of the circumstances presented here, “the presumption that the defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like that committed by the defendant was excessively harsh, has not been rebutted” (People v Berry, 89 AD3d at 956 ; see People v Green, 110 AD3d 825 [2013]; People v Concepcion, 85 AD3d 811, 812 [2011]).

2012Petitioner’s claims that the drug testing procedures set forth in 7 NYCRR 1010.5 were not followed and that a proper foundation was not laid for the positive drug test results have not been preserved for our review due to his failure to raise them either at the hearing or in his administrative appeal (see Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]; Matter of Lamb v Goord, 27 AD3d 807, 808 [2006]).

2012Petitioner’s claims that the drug testing procedures set forth in 7 NYCRR 1010.5 were not followed and that a proper foundation was not laid for the positive drug test results have not been preserved for our review due to his failure to raise them either at the hearing or in his administrative appeal (see Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]; Matter of Lamb v Goord, 27 AD3d 807, 808 [2006]).

2012Petitioner’s claims that the drug testing procedures set forth in 7 NYCRR 1010.5 were not followed and that a proper foundation was not laid for the positive drug test results have not been preserved for our review due to his failure to raise them either at the hearing or in his administrative appeal (see Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]; Matter of Lamb v Goord, 27 AD3d 807, 808 [2006]).

2012Petitioner’s claims that the drug testing procedures set forth in 7 NYCRR 1010.5 were not followed and that a proper foundation was not laid for the positive drug test results have not been preserved for our review due to his failure to raise them either at the hearing or in his administrative appeal (see Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]; Matter of Lamb v Goord, 27 AD3d 807, 808 [2006]).

2026Given the valid appeal waiver, as well as defendant being informed of the potential consequences of a positive drug test upon his return to court, defendant's challenge to the perceived severity of the enhanced sentence imposed is foreclosed ( see People v Gonzalez , 234 AD3d 1186 , 1187 [3d Dept 2025]; People v Lane , 233 AD3d 1207 , 1209 [3d Dept [*2] 2025], lv denied 43 NY3d 945 [2025]), as is his request that we reduce the sentence in the interest of justice ( see People v Roberts , 247 AD3d 1417 , 1419 [3d Dept 2026]; People v Jean-Pierre , 203 AD3d 1226, 1228 [3d Dept 2022], lv denied 38

2026Given the valid appeal waiver, as well as defendant being informed of the potential consequences of a positive drug test upon his return to court, defendant's challenge to the perceived severity of the enhanced sentence imposed is foreclosed ( see People v Gonzalez , 234 AD3d 1186, 1187 [3d Dept 2025]; People v Lane , 233 AD3d 1207, 1209 [3d Dept [*2] 2025], lv denied 43 NY3d 945 [2025]), as is his request that we reduce the sentence in the interest of justice ( see People v Roberts , 247 AD3d 1417, 1419 [3d Dept 2026]; People v Jean-Pierre , 203 AD3d 1226, 1228 [3d Dept 2022], lv denied 38 NY

2025Petitioner's remaining contentions regarding the completion of certain incident forms and evidence handling procedures were not raised during the hearing, and are therefore unpreserved for our review ( see Matter of Hills v Annucci , 225 AD3d 1008 , 1009 [3d Dept 2024]; Matter of Legette v Rodriguez , 213 AD3d 1066, 1067 [3d Dept 2023]).

2024In [*2]a proceeding to establish a defendant's risk level classification under SORA, "the People 'bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence' " ( People v Smith , 211 AD3d 1127, 1127-1128 [3d Dept 2022], quoting Correction Law § 168-n [3]).

2020Moreover, when defendant objected to the enhanced sentence, the court did not advise him of the right to a hearing to contest the alleged violation ( see People v Albergotti , 17 NY3d 748, 750 [2011]; People v Outley , 80 NY2d 702, 713 [1993]), and the record does not contain the positive drug test results, the testing date or any evidence as to when defendant consumed these drugs so as to establish that it occurred during the six-hour furlough ( see People v Criscitello , 123 AD3d at 1237 ).

2020Moreover, when defendant objected to the enhanced sentence, the court did not advise him of the right to a hearing to contest the alleged violation ( see People v Albergotti , 17 NY3d 748, 750 [2011]; People v Outley , 80 NY2d 702, 713 [1993]), and the record does not contain the positive drug test results, the testing date or any evidence as to when defendant consumed these drugs so as to establish that it occurred during the six-hour furlough ( see People v Criscitello , 123 AD3d at 1237 ).

2020Accordingly, the sentences imposed upon the first indictment must be vacated and the matter remitted to County Court to either impose the original agreed-upon sentences or to give defendant an opportunity to withdraw his guilty plea to that indictment ( see id. ; see also People v Rushlow , 137 AD3d at 1483-1484 ).