McBride v. Kelly

Appellate Division of the Supreme Court of New York

McBride v. Kelly

215 A.D.2d 161, 626 N.Y.S.2d 142, 1995 N.Y. App. Div. LEXIS 4960

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 9, 1995

StatusPublished

This text of 215 A.D.2d 161 (McBride v. Kelly) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McBride v. Kelly, 215 A.D.2d 161, 626 N.Y.S.2d 142, 1995 N.Y. App. Div. LEXIS 4960 (N.Y. Ct. App. 1995).

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Opinion

Determination of respondent Police Commissioner dated August 3, 1993, dismissing petitioner from his position as a police officer, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Diane Lebedeff, J.], entered April 7, 1994), dismissed, without costs.

Substantial evidence of petitioner’s ingestion of cocaine was provided by the positive results of two EMIT tests (Matter of Lahey v Kelly, 71 NY2d 135, 138) confirmed by the positive results of two GC/MS tests (Matter of Gordon v Brown, 84 NY2d 574, 579-580; Matter of Pesante v Abate, 211 AD2d 504). And the testimony at petitioner’s disciplinary hearing that petitioner participated in the application process for assignment to the Organized Control Crime Bureau after being recommended for the assignment by two of his commanding officers constitutes substantial evidence that petitioner consented to the assignments that necessarily involved submission to a drug test. We have considered petitioner’s other arguments and find them to be without merit. Concur—Murphy, P. J., Sullivan, Rubin, Kupferman and Ross, JJ.

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Determination of respondent Police Commissioner dated August 3, 1993, dismissing petitioner from his position as a police officer, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Diane Lebedeff, J.], entered April 7, 1994), dismissed, without costs.

Substantial evidence of petitioner’s ingestion of cocaine was provided by the positive results of two EMIT tests (Matter of Lahey v Kelly, 71 NY2d 135, 138) confirmed by the positive results of two GC/MS tests (Matter of Gordon v Brown, 84 NY2d 574, 579-580; Matter of Pesante v Abate, 211 AD2d 504). And the testimony at petitioner’s disciplinary hearing that petitioner participated in the application process for assignment to the Organized Control Crime Bureau after being recommended for the assignment by two of his commanding officers constitutes substantial evidence that petitioner consented to the assignments that necessarily involved submission to a drug test. We have considered petitioner’s other arguments and find them to be without merit. Concur—Murphy, P. J., Sullivan, Rubin, Kupferman and Ross, JJ.

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Bluebook (online)

215 A.D.2d 161, 626 N.Y.S.2d 142, 1995 N.Y. App. Div. LEXIS 4960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcbride-v-kelly-nyappdiv-1995.

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