Opinion
July 7, 1988
Appeal from the Supreme Court, Cayuga County, Contiguglia, J.
Present — Callahan, J.P., Doerr, Green, Balio and Davis, JJ.
Judgment unanimously vacated on the law and determination unanimously confirmed and petition dismissed. Memorandum: Since a critical issue raised in this CPLR article 78 proceeding is whether the determination of the Hearing Officer is supported by substantial evidence, Special Term should not have decided the matter but, rather, should have transferred it to this court (see, CPLR 7804 [g]). However, we may consider the matter as if had been properly transferred (Matter of Curl v. Kelly, 125 A.D.2d 948).
We confirm the determination that petitioner violated rule 113.12 ( 7 NYCRR 270.1 [b] [14] [iv]) because it is supported by substantial evidence. We reject petitioner's claim that the EMIT test cannot constitute substantial evidence to support respondent's determination finding an inmate guilty of violating a rule prohibiting the use of a controlled substance. The positive result of an EMIT test, when confirmed, as here, by the result of a second EMIT test, constitutes substantial evidence to support the determination (Matter of Lahey v. Kelly, 71 N.Y.2d 135, 138). Petitioner's conflicting testimony concerning the possible effect that prescribed medication could have on EMIT test results was not binding upon the Hearing Officer, who essentially had to determine the credibility of the witnesses. He was entitled to credit the charging officer's report and respondent's medical evidence and to decline to credit the testimony proffered by petitioner (see, Matter of Curl v Kelly, supra; see also, Matter of Perez v. Wilmot, 67 N.Y.2d 615). We have reviewed petitioner's remaining contentions and find them to be without merit.