Opinion
October 18, 1994
Appeal from the Supreme Court, New York County [Peter Tom, J.].
We see no reason to disturb the credibility findings of the Hearing Officer rejecting petitioner's assertion that the positive finding on his random drug test resulted from his inadvertent ingestion of beer tainted with cocaine (see, Matter of Shaw v. Sielaff, 191 A.D.2d 284; Matter of Harmon v. New York City Police Dept., 188 A.D.2d 429, lv denied 82 N.Y.2d 652). Petitioner's claim that respondents intimidated the person who tainted his beer from appearing at the hearing as a witness with threats of prosecution for cocaine related offenses if he testified, thereby depriving petitioner of due process, is not preserved for review, no such due process claim ever having been raised at the hearing (see, Matter of Sowa v. Looney, 23 N.Y.2d 329, 333; Mountleigh v. City of New York, 191 A.D.2d 291), and is in any event without factual support in the record.
The penalty of dismissal is not shocking to one's sense of fairness (see, Matter of Harmon v. New York City Police Dept., supra).
Concur — Sullivan, J.P., Carro, Rosenberger and Williams, JJ.