Opinion
February 1, 1991
Appeal from the Monroe County Court, Marks, J.
Present — Dillon, P.J., Callahan, Balio, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The Division of Parole must prove, by a preponderance of the evidence, that a parolee has violated the terms of his parole (see, Executive Law § 259-i [f] [viii]; 9 NYCRR 8005.19 [e]). It is well settled that hearsay is admissible in a parole revocation proceeding ( 9 NYCRR 8005.2 [a]) and may be the basis of a determination that parole was violated (People ex rel. McGee v Walters, 62 N.Y.2d 317). We have held, however, that the burden of proof in a parole revocation proceeding is not satisfied unless there is a residuum of legal evidence to support a finding of guilt (see, Matter of Hilbourne v Rodriguez, 155 A.D.2d 917). Thus, except in the rare case, hearsay alone will not suffice. In recognition of that principle, we held that an uncertified report of a drug test which was not included in the record on appeal, and the reliability of which could not be determined, was insufficient to support a finding that parole was violated (People ex rel. Saafir v Mantello, 163 A.D.2d 824).
Here, however, the record includes a certified report of a confirmed Syva EMIT positive drug test, the reliability of which, at least in the context of a prison disciplinary proceeding, has been judicially accepted (see, Matter of Lahey v Kelly, 71 N.Y.2d 135). Despite the difference in the burden of proof between prison disciplinary and parole revocation proceedings, we conclude that evidence of a certified report of a confirmed Syva EMIT positive drug test is sufficiently reliable, standing alone, to satisfy the Division's burden of proof.
Relator also argues that he was impermissibly denied his right to confrontation (see, US Const 6th Amend; N Y Const, art I, § 6). The argument is without merit. The Hearing Officer properly admitted the report in evidence without requiring the Division to produce a witness from the laboratory. The report was otherwise admissible, and its substance was "objective factual material compiled under circumstances indicating it to be inherently reliable" (People ex rel. McGee v Walters, supra, at 322).