Wisniewski v. Smith

Appellate Division of the Supreme Court of New York

Wisniewski v. Smith

133 A.D.2d 541, 519 N.Y.S.2d 908, 1987 N.Y. App. Div. LEXIS 50043

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

DecidedSeptember 30, 1987

StatusPublished

This text of 133 A.D.2d 541 (Wisniewski v. Smith) 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

Wisniewski v. Smith, 133 A.D.2d 541, 519 N.Y.S.2d 908, 1987 N.Y. App. Div. LEXIS 50043 (N.Y. Ct. App. 1987).

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Opinion

Determination unanimously annulled on the law and petition granted. Memorandum: Respondent’s determination that petitioner violated an institutional rule by using marihuana is not supported by substantial evidence because the reliability of two "EMIT” tests upon which the finding was based was not established on this record (see, Matter of Lahey v Kelly, 125 AD2d 923, lv granted 69 NY2d 608). The observation of a correction officer that petitioner was bobbing his head up and down on a picnic table does not, by itself, constitute substantial evidence that petitioner used marihuana (cf., Matter of Cornish v Coughlin, 122 AD2d 495). (Article 78 proceeding transferred by order of Supreme Court, Wyoming County, Dadd, J.) Present—Denman, J. P., Green, Balio, Lawton and Davis, JJ.

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Determination unanimously annulled on the law and petition granted. Memorandum: Respondent’s determination that petitioner violated an institutional rule by using marihuana is not supported by substantial evidence because the reliability of two "EMIT” tests upon which the finding was based was not established on this record (see, Matter of Lahey v Kelly, 125 AD2d 923, lv granted 69 NY2d 608). The observation of a correction officer that petitioner was bobbing his head up and down on a picnic table does not, by itself, constitute substantial evidence that petitioner used marihuana (cf., Matter of Cornish v Coughlin, 122 AD2d 495). (Article 78 proceeding transferred by order of Supreme Court, Wyoming County, Dadd, J.) Present—Denman, J. P., Green, Balio, Lawton and Davis, JJ.

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Bluebook (online)

133 A.D.2d 541, 519 N.Y.S.2d 908, 1987 N.Y. App. Div. LEXIS 50043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wisniewski-v-smith-nyappdiv-1987.

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