Shepard v. Ward

— Proceeding brought pursuant to CPLR article 78, transferred to this court by order of the Supreme Court, New York County (Karla Moskowitz, J.), entered August 9, 1988, to review a determination of the Police Commissioner of the City of New York, effective January 22, 1988, which found petitioner Shepard guilty of "wrongfully ingesting] a quantity of controlled substances” when his urinalysis testing yielded positive results from cocaine and marihuana, and which dismissed petitioner from his position as a police officer, unanimously dismissed and the determination is confirmed, without costs and disbursements.

The administrative finding that petitioner was justifiably subjected to drug testing in the presence of reasonable suspicion of drug abuse is amply supported by substantial evidence. (See, Matter of King v McMickens, 120 AD2d 351 [1st Dept 1986], affd 69 NY2d 840 [1987].)

Evidence of glassy, bloodshot and watery eyes, slurred speech and a history of suspicious mood swings coupled with anonymous tips that named petitioner as one of several officers using drugs provided a basis for reasonable suspicion, sufficient to order that the officer be tested.

Inconsistencies in the testimony of the department’s witnesses and the petitioner’s witnesses created only questions of fact and credibility for the Assistant Deputy Commissioner for Trials. The Syva Emit-st drug detection system tests, known as EMIT tests, performed here are more than sufficiently accurate and reliable to constitute substantial evidence. (Matter of Lahey v Kelly, 71 NY2d 135, 143-144 [1987].) Dismissal was not an excessive penalty, nor was it shocking to one’s sense of fairness or disproportionate to the offense. (Matter of Pell v Board of Educ., 34 NY2d 222 [1974].)

We have reviewed the petitioner’s remaining contentions and find they do not warrant disturbance of the administrative determination. Concur — Milonas, J. P., Rosenberger, Ellerin and Rubin, JJ.