Jones v. Ward

166 A.D.2d 323

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1990
• Status: Published

Opinion

Determination of the respondent Police Commissioner, dated October 4, 1988, which dismissed petitioner from his position as a police officer, is unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this court by order of Sup Ct, NY County, Harold Baer, Jr., J., entered on or about May 22, 1989), is unanimously dismissed, without costs and without disbursements.

Upon a review of the record, we find that there is substantial evidence to support the Commissioner’s determination that petitioner violated Patrol Guide 104-1 by unlawfully ingesting and possessing cocaine. Test results of petitioner’s urine sample, voluntarily given, were positive for the presence of cocaine. Petitioner, at the hearing, opined that the ingestion of cough medication, or possibly cocaine dust during a drug arrest, could have caused the positive test results, but these explanations are unsupported, and it was within the respondents’ province to dismiss them as speculative. Positive results from an EMIT test, which are confirmed by a second test, or as here by two additional testing procedures, are sufficiently reliable to constitute substantial evidence supporting a determination that the person whose urine was tested used drugs. (Matter of Lahey v Kelly, 71 NY2d 135, 143-144.) Concur—Sullivan, J. P., Ross, Rosenberger, Kassal and Wallach, JJ.