McGovern v. Safir

266 A.D.2d 107, 698 N.Y.S.2d 477, 1999 N.Y. App. Div. LEXIS 11680

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 1999
• Status: Published

Opinion

—Determination of respondent Police Commissioner, dated November 14, 1997, which dismissed 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 [Stanley Parness, J.], entered June 12, 1998) dismissed, without costs.

Petitioner’s positive random drug test results, which petitioner does not dispute, constitute substantial evidence supporting the determination that petitioner possessed and ingested marihuana. There is no basis upon which to disturb the Deputy Commissioner’s rejection, as incredible, of petitioner’s claim that his ingestion of marihuana was unknowing and involuntary (see, Matter of Berenhaus v Ward, 70 NY2d 436; Matter of Gaudioso v Schembri, 221 AD2d 165). The penalty of dismissal does not shock our sense of fairness. Concur — Sullivan, J. P., Nardelli, Mazzarelli, Lerner and Buckley, JJ.