Wisniewski v. Smith

Determination unanimously annulled on the law and petition granted. Memorandum: Respondent’s determination that petitioner violated an institutional rule by using marihuana is not supported by substantial evidence because the reliability of two "EMIT” tests upon which the finding was based was not established on this record (see, Matter of Lahey v Kelly, 125 AD2d 923, lv granted 69 NY2d 608). The observation of a correction officer that petitioner was bobbing his head up and down on a picnic table does not, by itself, constitute substantial evidence that petitioner used marihuana (cf., Matter of Cornish v Coughlin, 122 AD2d 495). (Article 78 proceeding transferred by order of Supreme Court, Wyoming County, Dadd, J.) Present—Denman, J. P., Green, Balio, Lawton and Davis, JJ.