Opinion
June 10, 1999.
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 N.Y.2d 135). The penalty of dismissal does not shock our sense of fairness ( Matter of Gordon v. Brown, 84 N.Y.2d 574, 580).
Concur — Sullivan, J.P., Williams, Wallach, Lerner and Friedman, JJ.