In the Matter of Gerald Gordon, Appellant, v. Lee P. Brown, Police
Commissioner of the City of New York, Respondent
84 N.Y.2d 574, 644 N.E.2d 1305, 620 N.Y.S.2d 749 (1994).
December 6, 1994
1 No. 192 (1994 NY Int. 201) Decided December 6, 1994
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Beatrice Maviglia, for appellant.
Timothy J. O'Shaughnessy, for respondent.
KAYE, CHIEF JUDGE:
Was petitioner denied due process when, in an administrative hearing
on charges of ingesting and possessing cocaine, the New York City
Police Department produced the supervisor, but not the technicians,
employed by the laboratory that performed the EMIT and GC/MS(n 1)
tests on petitioner's urine specimen? We conclude, as did the
Appellate Division, that due process did not require production of the
laboratory personnel where no question was raised as to the general
reliability of the procedures, where the supervisor familiar with each
step in the procedure was subject to cross-examination, and where no
claim was made of any particular defect in testing petitioner's
specimen.
Petitioner, a long-time New York City police officer, on June 11, 1991
was randomly selected for DOLE urinalysis drug screening. The sample,
taken the next day, tested positive for cocaine, and petitioner was
charged with violating Department rules by ingesting and possessing
cocaine.
At the departmental hearing, where the results were received in
evidence, Dr. William Closson, Director of Forensic Toxicology at the
Brunswick Hospital Center, under whose direction petitioner's specimen
was tested, described each step followed to ensure the security of
samples and accuracy of results. Although he personally reviewed all
of the data and chain of custody documentation in concluding that
petitioner's specimen tested positive for cocaine, he did not himself
observe or perform the procedures. The Department called none of the
toxicologists who actually did the testing or the laboratory
technician who processed the specimen.
SNIPPETS:
Beatrice Maviglia, for appellant.
Timothy J. O'Shaughnessy, for respondent.
Was petitioner denied due process when, in an administrative hearing on charges of ingesting
We conclude, as did the Appellate Division, that due process did not require production of
Petitioner, a long-time New York City police officer, on June 11, 1991 was randomly selected
The sample, taken the next day, tested positive for cocaine, and petitioner was charged with
As Dr. Closson explained, upon arrival at the laboratory the two vials provided by petitioner
Thereafter, one vial was subjected to an EMIT screening test, performed by a toxicologist
That test detected benzoylecgonine--a cocaine metabolite detectable in urine for three to
At the close of the Department's case, petitioner moved to dismiss the charges on the ground
The hearing officer concluded that the Department had proved by a preponderance of credible
Accordingly, the hearing officer found petitioner guilty as charged and, noting that
The Commissioner thereupon terminated petitioner.
While the constitutional right of confrontation is confined to criminal proceedings, we have
Petitioner neither disputes the general reliability of the testing procedures used nor
In the absence of any particular allegation of error, on this record we cannot agree that the
Due process does not require, however, that, without some particular challenge, every
The trial court permitted the tester's supervisor to give his opinion of the substance seized
Opinion by Chief Judge Kaye.
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