…[W]e find merit in defendant’s argument, preserved by objection at sentencing …, 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 4½ 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 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.”… 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 … and the court did not have a “legitimate basis” for concluding — that defendant used marihuana during his furlough… . People v Criscitello, 2014 NY Slip OP 08678, 3rd Dept 12-11-14

Landon (91 AD3d 79, aff’d 22 NY3d 1) makes clear that there is a duty running from a drug testing laboratory to the subject of a drug test despite the lack of a contractual relationship between those parties. Further, it cannot be gainsaid that Daytop owes some duty of reasonable care to individuals it treats. The question presented here, as to both defendants, concerns the proper scope of that duty. More particularly, the question is whether the defendants’ duty of reasonable care includes the duty to label or place a disclaimer on a report, so as to indicate that the results are to be used only for clinical purposes. * * *

We conclude … that Bendiner did not have a duty to the plaintiffs to label its drug test results with a disclaimer, and that Daytop, when reporting the results to the drug treatment courts, did not have a duty to the plaintiffs to provide a disclaimer indicating that the positive test results were to be used for clinical purposes only.  Braverman v Bendiner & Schlesinger Inc, 2014 NY Slip Op 05618, 2nd Dept 8-6-14

…Brant – the analyst who identified the oxycodone, performed the chemical tests on it, determined the nature of the substance, and authored the report – in fact testified and was subject to crossexamination … .  The report is certified pursuant to CPL 190.30 (2) with the following language: “I, Clifford E. Brant, . . . hereby certify” and then states that it is “my [i.e. Brant’s] report and contains the opinions and interpretations of the examination I performed in the above referenced case” (emphasis added).  Brant also testified that Lafond cosigned the report after an administrative review of it, as required by State Police protocol.  There is no support in the record for the proposition that Lafond examined or analyzed the substance, observed Brant doing so, or was signing the report in that capacity.  Indeed, Brant testified that after he alone performed the forensic chemical testing, he sealed, signed and dated the laboratory bag containing the pill, which remained intact as of the trial, supporting the conclusion that Lafond only read and signed the report after it was completed to ensure that proper procedure was followed …, and she had no role in ascertaining or verifying the identity of the substance in issue.  Thus, the “actual analyst who performed the tests” … and “wr[o]te [the] report[]” … testified.   We find that Lafond, who neither analyzed the substance in issue nor authored the report, was not a “witness” against defendant for purposes of the Confrontation Clause … and, accordingly, no Crawford violation occurred as a result of the People admitting Brant’s report into evidence without calling Lafond to testify. People v Wolz, 104909, 104910, 3rd Dept 12-19-13