In the Matter of Freda Davis, Petitioner, v. Howard Safir, as Police Commissioner of the City of New York, et al., Respondents

In the Matter of Freda Davis, Petitioner, v Howard Safir, as Police Commissioner of the City of New York, et al., Respondents. [691 NYS2d 487] [MAJORITY] —Determination of respondent Police Commissioner dated June 17, 1998, terminating petitioner’s employment 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 [Eileen Bransten, J.], entered, on or about November 17, 1998) dismissed, without costs. The results of the EMIT and GC/MS tests constitute substantial evidence of petitioner’s possession and use of cocaine, and no basis exists for disturbing respondent’s rejection of petitioner’s claim that the GC/MS testing procedures were unreliable and likely to produce a false positive. In any event, even if the positive result obtained by the GC/MS tests are disregarded, the positive result obtained by the EMIT tests, the reliability of which petitioner does not challenge, would alone constitute substantial evidence of the use of cocaine (Matter of Lahey v Kelly, 71 NY2d 135). The penalty of dismissal does not shock our sense of fairness (Matter of Gordon v Brown, 84 NY2d 574, 580). Concur — Sullivan, J. P., Williams, Wallach, Lerner and Friedman, JJ.