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Matter of Shepard v. Ward

Appellate Division of the Supreme Court of New York, First Department
Nov 14, 1989
155 A.D.2d 293 (N.Y. App. Div. 1989)

Summary

In Matter of Shepard v. Ward (155 A.D.2d 293, 294), the signs were "glassy, bloodshot and watery eyes, slurred speech and a history of suspicious mood swings coupled with anonymous tips that named petitioner as one of several officers using drugs".

Summary of this case from Matter of Wilder v. Koehler

Opinion

November 14, 1989

Appeal from the Supreme Court, New York County (Karla Moskowitz, J.).


The administrative finding that petitioner was justifiably subjected to drug testing in the presence of reasonable suspicion of drug abuse is amply supported by substantial evidence. (See, Matter of King v McMickens, 120 A.D.2d 351 [1st Dept 1986], affd 69 N.Y.2d 840.)

Evidence of glassy, bloodshot and watery eyes, slurred speech and a history of suspicious mood swings coupled with anonymous tips that named petitioner as one of several officers using drugs provided a basis for reasonable suspicion, sufficient to order that the officer be tested.

Inconsistencies in the testimony of the department's witnesses and the petitioner's witnesses created only questions of fact and credibility for the Assistant Deputy Commissioner for Trials. The Syva Emit-st drug detection system tests, known as EMIT tests, performed here are more than sufficiently accurate and reliable to constitute substantial evidence. (Matter of Lahey v Kelly, 71 N.Y.2d 135, 143-144.) Dismissal was not an excessive penalty, nor was it shocking to one's sense of fairness or disproportionate to the offense. (Matter of Pell v Board of Educ., 34 N.Y.2d 222.)

We have reviewed the petitioner's remaining contentions and find they do not warrant disturbance of the administrative determination.

Concur — Milonas, J.P., Rosenberger, Ellerin and Rubin, JJ.


Summaries of

Matter of Shepard v. Ward

Appellate Division of the Supreme Court of New York, First Department
Nov 14, 1989
155 A.D.2d 293 (N.Y. App. Div. 1989)

In Matter of Shepard v. Ward (155 A.D.2d 293, 294), the signs were "glassy, bloodshot and watery eyes, slurred speech and a history of suspicious mood swings coupled with anonymous tips that named petitioner as one of several officers using drugs".

Summary of this case from Matter of Wilder v. Koehler
Case details for

Matter of Shepard v. Ward

Case Details

Full title:In the Matter of THEODORE SHEPARD, Petitioner, v. BENJAMIN WARD, as Police…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 14, 1989

Citations

155 A.D.2d 293 (N.Y. App. Div. 1989)
547 N.Y.S.2d 57

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