Fulton v. Jacobson

226 A.D.2d 215, 641 N.Y.S.2d 16, 1996 N.Y. App. Div. LEXIS 3893

Opinion

—Determination of respondent Correction Commissioner dated July 25, 1994, which dismissed petitioner from his position as a correction officer, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by an order of the Supreme Court, New York County [Joan Lobis, JJ, entered January 26, 1995) is dismissed, without costs.

Respondent’s determination that petitioner used marijuana is supported by substantial evidence consisting of the results of an EMIT drug test as confirmed by a GC-MS test, the testimony of two correction officers and the laboratory director describing the chain of custody of the urine sample, and the testimony of the laboratory director explaining that certain irregularities in the test readings were intended, and had no impact on the validity of the results (see, Matter of Bonilla v Kelly, 213 AD2d 264). The penalty of dismissal is not so disproportionate to the offense as to be shocking to our sense of fairness (see, Trotta v Ward, 77 NY2d 827). Concur—Sullivan, J. P., Milonas, Ellerin, Williams and Mazzarelli, JJ.