Wilson v. Department of Correction

226 A.D.2d 151, 640 N.Y.S.2d 94, 1996 N.Y. App. Div. LEXIS 3455

Opinion

Determination of the respondent Correction Commissioner dated April 28, 1994, dismissing petitioner as a correction officer, upon a finding that she knowingly ingested cocaine, 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 [Salvador Collazo, J.], entered March 1, 1995) dismissed, without costs.

Respondent’s determination that petitioner knowingly ingested cocaine, necessarily based as it was on the crediting of the testimony of a correction officer with respect to the integrity of the random drug test administered to petitioner, and the discrediting of petitioner’s disavowal of drug use and claim that her specimen was tainted during the testing procedure, should not be second-guessed by the courts (see, Matter of Berenhaus v Ward, 70 NY2d 436, 443; Matter of Sadler v Bratton, 219 AD2d 517). Both sides’ expert witnesses testified that they did not know of a situation where someone had registered a false positive result for the cocaine metabolite, only present in cocaine, and it was pure speculation for petitioner’s expert to opine that such a false positive could be caused by the ingestion of herbal teas. The penalty of dismissal was not unwarranted (see, Matter of Berenhaus v Ward, supra, at 445). Concur—Sullivan, J. P., Rosenberger, Wallach, Kupferman and Williams, JJ.