Opinion
April 4, 1991
Petitioner initially argues that his right to due process was violated because the Hearing Officer denied his request for a separate and distinct test to determine if he had used cocaine. Petitioner then claims that since he was not provided with an independent test to challenge the reliability of the two Syva Emit-st Drug Detection System (hereinafter EMIT) tests taken by the correction officers, which were admitted into evidence, the determination that he was guilty of using a controlled substance was not supported by substantial evidence. Not only has it been held that the "use of an alternative testing method to confirm the positive EMIT test results [is] not required" (Matter of Lahey v. Kelly, 71 N.Y.2d 135, 142), but the positive results of two EMIT tests "constitute[s] substantial evidence to support a determination * * * that an inmate has used illegal drugs" (supra, at 143). Petitioner's final contention, that the testimony of the physician's assistant and the doctor is inadmissible because they were not qualified as experts, was not raised at either the administrative level or in his petition and therefore has not been preserved for our review (see, Matter of Haz-O-Waste Corp. v. Williams, 103 A.D.2d 1001).
Determination confirmed, and petition dismissed, without costs. Mahoney, P.J., Mikoll, Levine, Crew III and Harvey, JJ., concur.