People v Diago

[*1] People v Diago 2004 NY Slip Op 51326(U) Decided on November 3, 2004 Supreme Court, New York County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 3, 2004
Supreme Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK

against

LUIS DIAGO, Defendant.



6252/03

Laura A. Ward, J.

On November 20, 2003, the defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree, in violation of Penal Law ["PL"] § 220.09. On March 10, 2004, the defendant 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 on August 9, 2004.[FN1]

This court has presided over Manhattan Treatment Court ("MTC") and Drug Treatment Alternative Program ("D-TAP")[FN2] cases since 1998. MTC is a drug treatment program administered by the court as an alternative to incarceration offered to drug 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.[FN3] 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. 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 defendants while maintaining a series of graduated sanctions and rewards. The defendants know what is required of them to successfully complete treatment. [*2]

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 in Matter of Lahey v. Kelly, 71 NY2d 135(1987).

In deciding the defendant's motion, the court has considered the arguments set forth in the papers submitted by the parties, the testimony taken at the hearing, the exhibits, and a stipulation entered into by the parties.

On October 27, 2003, a member of the New York City Police Department obtained a search warrant, authorizing the search of apartment 7 located in 75 Fort Washington Avenue in New York County. The search warrant was executed on October 30, 2003, 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, in violation of PL § 220.16(1). On November 20, 2003, 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 to December 3, 2003, for the MTC staff to evaluate the defendant and report to the court with a recommendation for the defendant's treatment. Following the adjournment of the defendant's case, he was tested for any recent drug use and he tested positive for marijuana.

On December 3, 2003, 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 to December 10, 2003, for placement into a program.

On December 10, 2003, the court was informed that the defendant was not eligible for placement at Odyssey House due to his inability to speak English. MTC also [*3]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 drugs on December 12, 2003, and December 15, 2003.

On December 24, 2003, the court was informed that the defendant had been accepted into El Rio, 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 at El Rio 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 at El Rio that morning and that he 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 at El Rio on January 8, 12, and 15, 2004. The three tests were negative for any illegal drugs.

The defendant again tested positive for cocaine at El Rio 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.

On February 18, 2004, 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 January 22, 2004, January 26, 2004, January 29, 2004, February 2, 2004, February 5, 2004, and February 9, 2004. MTC also informed the court that defendant tested positive for cocaine on February 18, 2004. The case was adjourned to March 10, 2004 , 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.

The defendant now moves, pursuant to CPL § 440.20, to set aside his sentence on the grounds that he was denied due process, for a writ of coram nobis 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 [*4]prove "by a preponderance of the evidence every fact essential to support the motion." (CPL § 440.30)

The defendant's challenges, pursuant to CPL § 440.20 and for a writ of coram nobis, 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,[FN4] thereby not only failing to follow their own procedures but also failing to legally establish that the defendant was in fact positive for cocaine. (Matter of Lahey v. Kelly, 71 NY2d, supra) The defendant asserts that his sentence is cruel and unusual. He argues that it is likely that his possession of cocaine 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 hearing was held before me during which two witnesses testified. Doctor Donald B. Hoffman ("Dr. Hoffman") testified for the defendant and Vinnie Happ testified for the People.

Dr. Hoffman has his doctorate in chemistry and did his post-doctoral fellowship in a pharmacology research unit, and is a forensic toxicologist. Dr. Hoffman testified as to his background as a forensic toxicologist including his various teaching positions, his certification as forensic toxicologist, his publication of many papers in the area of forensic toxicology, his lectures on forensic toxicology, his private consulting firm in forensic toxicology, and that he had testified in various courts hundreds of times. (Hearing Minutes ["Minutes"] at pp. 2 - 4) Dr. Hoffman's curriculum vitae was presented to the court and stipulated to by the People. (Minutes at pp. 3 - 4) Dr. Hoffman was qualified as an expert in the field of forensic toxicology. (Minutes at p. 5)

Dr. Hoffman testified that the he is familiar with the Roche Varian TesTcup Five, the test cup used by MTC. (Minutes at p. 15) He stated that the Roche Varian TesTcup Five is an immunoassay type of test used for screening urine for different types of drugs. (Minutes at p. 6). Dr. Hoffman 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." (Minutes at p. 6) Dr. Hoffman 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. (Minutes at pp.6 - 7)

Dr. Hoffman explained that immunoassay tests are reliable as a screening test but "they can be subject to a variety of so-called false positives. That is, it's known that there are different substance [sic]. There may be drugs. There may be metabolites of drug. There may be [*5]other types of compounds. These are known. Many of these can and are known to interfere not just with this test, but with immunoassay tests in general." (Minutes at p. 7) Dr. Hoffman stated that GC/MS tests provide specific structural information of the compounds being tested which would not result in false positive test results. 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. (Minutes at pp. 8 - 9)

Dr. Hoffman was asked if "the medical history or the physical condition of a particular individual [can] have an effect on the results of the Roche Varian test?" He replied that if a person is taking multiple medications it should "send up a red flag." (Minutes at p. 9) When asked if a person taking multiple medications would be more likely to produce a false positive result than a person who is not taking any medications, Dr Hoffman replied that "there is a greater chance, whatever, under those conditions that a false positive would be produced as compared to the situation of the person, say, were not taking any other medication at all." (Minutes at pp. 10 - 11) Dr. Hoffman stated that "confirmation by mass spectrometry is important because that is the only way that one can come up with a conclusion of reasonable certainty, certainty as to whether a particular substance is present or not." (Minutes at p. 10)

Dr. Hoffman testified that, while the GC/MS test is not 100% reliable, it is more reliable than immunoassay test, in view of the fact that "... the factors that cause potential interference with immunoassays do not exist in the mass spectrometry analysis..." (Minutes at p. 22) He stated that "[i]f you have a situation involving poly-drug use and history of inconsistent findings, again that indicates that when that occurs once in a hundred or once in a thousand even if it's 99 percent reliable. When you have a situation again of this type, the point is that confirmation will eliminate the one percent or two percent or whatever it is of potentially false positive results." (Minutes at pp. 30 - 31)

Dr. Hoffman testified that in theory none of the medications taken by the defendant should test positive for cocaine. (Minutes at p. 39) He did, however, emphasize that in a poly-drug situation there is an "inherent potential for cross reactivity." (Minutes at p. 46)

The People's witness, Vinnie Happ, a Roche Varian Strategic Account Manager, testified that the TesTcup Five is 99% accurate compared to GC/MS test. (Minutes at p. 62) Mr. Happ also testified that he does not know if the medications, taken by the defendant, in any combination, could cause a false positive test result. Mr. Happ testified that he agreed with everything Dr. Hoffman had testified to except that he believes that the immunoassay test is reliable as a confirmatory test. (Minutes at p. 75)

Finally, the parties entered into a stipulation that, on February 18, 2004, 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. (Minutes at pp. 78 - 79) [*6]

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 can not 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, and referring to the Court's decision in Matter of Lahey v. Kelly, supra, and this court's decision in People v. Muniz, 2003 NY Slip Op. 51240(U) (Sup. Ct. Aug 15, 2003), 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 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.

Dr. Hoffman testified that none of the prescribed medications, in and of themselves, would have caused a false positive. He did state that those medications taken together could possibly result in a false positive. However, at no point did Dr. Hoffman testify that the combination of the medications would cause a false positive. Vinnie Happ agreed with Dr. Hoffman and stated that he did not know if the defendant's medications taken in combination could cause a positive result. Thus, I find there is insufficient evidence to determine that the Roche Varian On Trak TesTcup test is not reliable as used in this case. Therefore, I find that the results of the Roche Varian On Trak TesTcup test provided an accurate determination that the defendant was positive for cocaine on February 18, 2004.

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. [*7]

Based upon the fact that the court finds that the results of the Roche Varian On Trak TesTcup test provided an accurate determination that the defendant was positive for cocaine and that on March 10, 2004, when offered residential treatment, the defendant chose to be sentenced, the court finds that the defendant was not denied due process.

The defendant's sentence of one year in jail was negotiated by the defendant. The sentencing range for a defendant found guilty of criminal possession of a controlled substance in the fourth degree, the charge to which the defendant pleaded guilty, is no jail time up to five to fifteen years in jail. In view of the potential sentence the defendant was facing, a sentence of one year in jail is lenient. The sentence is within statutory guidelines (People v. Jones, 39 NY2d 694, 697 [1976]) and, in this case, is not so disproportionate to the crime he committed as to constitute cruel and unusual punishment. (People v. Brodie, 37 NY2d 100, 110 [1975])

The defendant's motions to set aside his sentence is denied.

The foregoing is the decision and order of the court.

Dated: New York, New York

November 3, 2004

Laura A. Ward

Acting Justice Supreme Court Footnotes

Footnote 1: On August 11, 2004, the court denied the defendant's motion from the bench.

Footnote 2: D-TAP is an alternative to incarceration program administered by the Office of the Special Narcotics Prosecutor for predicate felons and overseen by the court.

Footnote 3: MTC uses the Roche Varian On Trak TesTcup Five to test a defendant's urine for marijuana or any controlled substance.

Footnote 4:The defendant's assertion is based upon information received from the Citywide Drug Treatment Court Coordinator that the defendant's February 18, 2004 positive drug test was not re-tested in a second cup.