Lahey v. Kelly

— Determination annulled, on the law, and petition granted. Memorandum: Since the only 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 (CPLR 7804 [g]). However, we may consider the matter as if it had been transferred properly (Matter of Curl v Kelly, 125 AD2d 948 [decided herewith]; Matter of Hop-Wah v Coughlin, 118 AD2d 275, 276; Matter of O’Brien v Steisel, 104 AD2d 817). Petitioner, an inmate at the Attica Correctional Facility, was asked to submit a urine specimen which was tested for cannabinoids on the Syva Emit-st Drug Detection System (EMIT test). Two tests, performed on the same sample, were positive. A misbehavior report charging petitioner with violat [924] ing a rule (by taking drugs) was filed and, following a tier II disciplinary hearing at which the only proof offered was the test results, petitioner was found guilty as charged. The penalty imposed was confinement to cell for 30 days and loss of privileges. Petitioner commenced an article 78 proceeding seeking to expunge the determination from his institutional record, alleging in effect that the determination was not supported by substantial evidence. In opposition, respondent argues that the EMIT test results should be deemed admissible evidence sufficient to sustain the charge. Petitioner argues that the reliability of the EMIT test was not sufficiently established to warrant admission of the test. We agree. It is well settled that "scientific evidence will only be admitted at trial if the procedure and results are generally accepted as reliable in the scientific community” (People v Hughes, 59 NY2d 523, 537). While a disciplinary hearing is not a trial in the true adversarial sense, we see no reason why reliability of the test results should not be accorded similar evidentiary demands on the party who seeks to impose penalties based upon the results of such test. Failing this, the substantial evidence requirement is not met. The EMIT test is of relatively recent origin, and although it has been accepted by some courts (see, e.g., Matter of Vasquez v Coughlin, 118 AD2d 897; Jensen v Lick, 589 F Supp 35; Smith v State, 250 Ga 438, 298 SE2d 482), other courts have rejected it requiring confirmation by a different type of test (Matter of Brown v Smith, 132 Misc 2d 686; Higgs v Wilson, 616 F Supp 226 [WD Ky] vacated sub nom. Higgs v Bland, Nos. 85-5701, 85-5887 [6th Cir]; Matter of Johnson v Walton, No. 561-84Rm. [Vt Super Ct]; Kane v Fair, 33 Crim L Rptr 2492 [Mass Super Ct]). The record before us is completely barren of scientific evidence which would establish the reliability of the test. Given this state of the record and the conflicting views on the matter, we cannot say that EMIT test results are generally accepted as reliable in the scientific community (see, Peranzo v Coughlin, 608 F Supp 1504, 1509-1510, 1513-1515). The party offering the evidence bears the burden of establishing its admissibility and, absent an adequate basis for the reliability of the test itself, mere evidence of the test result is insufficient evidence to sustain a finding of misbehavior. We have considered the other issues raised in the petition and find them to be without merit. All concur, except Balio, J., who dissents and votes to confirm the determination in the following memorandum.