THE RECORD DOES NOT DEMONSTRATE DEFENDANT WAS WARNED THE USE OF DRUGS WHILE ON FURLOUGH WOULD RESULT IN AN ENHANCED SENTENCE; MATTER REMITTED FOR RESENTENCING OR WITHDRAWAL OF THE PLEA (THIRD DEPT).

The Third Department determined the sentencing court should not have imposed an enhanced sentence because the record did not demonstrate defendant was warned the use of drugs while on furlough would result in a stiffer sentence:

… “[A] court may not impose an enhanced sentence unless, as is relevant here, it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement” … . A review of the transcript of all of the proceedings, including those at which defendant entered his guilty pleas, reflects that, although he received warnings that certain conduct could result in an enhanced sentence of up to nine years on the first indictment, he was never advised that a positive drug test could result in an enhanced sentence. Given that the furlough was granted off-the-record, the record before us does not disclose what, if any, warnings were provided to defendant prior to his release on furlough … . Moreover, when defendant objected to the enhanced sentence, the court did not advise him of the right to a hearing to contest the alleged violation … , 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 … . Accordingly, 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 … . People v Blanford, 2020 NY Slip Op 00646, Third Dept 1-30-20