Pesante v. Abate

211 A.D.2d 504, 621 N.Y.S.2d 556

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 1995
• Status: Published

Opinion

Determination of respondent Correction Commissioner dated May 5, 1993, dismissing 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 order of Supreme Court, New York County [Beatrice Shainswit, J.], entered on or about September 29, 1993) dismissed, without costs.

It is respondent’s role to assess the credibility of the witnesses and to have otherwise weighed the evidence relating to whether petitioner’s ingestion of cocaine, which was demonstrated by an EMIT test confirmed by a more sophisticated gastromchromatography/mass spectrometry test (see, Matter of Joyner v Abate, 199 AD2d 56), was inadvertent, and this Court may not substitute its judgment or choose between conflicting inferences (Matter of Elliott v New York City Loft Bd., 205 AD2d 460). Concur—Sullivan, J. P., Rosenberger, Nardelli and Williams, JJ.