Lahey v. Kelly

• Decision Date: 23 December 1987
• Citation: 71 N.Y.2d 135,524 N.Y.S.2d 30,518 N.E.2d 924
• Parties: , 518 N.E.2d 924 In the Matter of Vincent LAHEY, Respondent, v. Walter R. KELLY, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Henry GATSON, Respondent, v. Walter R. KELLY, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Harold WIGGINS, Respondent, v. Walter R. KELLY, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Ronald GREEN, Respondent, v. Walter R. KELLY, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Donat REID, Respondent, v. Walter R. KELLY, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Oscar CARRION, Respondent, v. Walter R. KELLY, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Michael McCLANAHAN, Respondent, v. Walter R. KELLY, as Superintendent of Attica Correctional Facility, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 30

524 N.Y.S.2d 30

71 N.Y.2d 135, 518 N.E.2d 924

In the Matter of Vincent LAHEY, Respondent, v. Walter R. KELLY, as Superintendent of Attica Correctional

Facility, et al., Appellants.

In the Matter of Henry GATSON, Respondent, v. Walter R. KELLY, as Superintendent of Attica Correctional

Facility, et al., Appellants.

In the Matter of Harold WIGGINS, Respondent, v. Walter R. KELLY, as Superintendent of Attica Correctional

Facility, et al., Appellants.

In the Matter of Ronald GREEN, Respondent, v. Walter R. KELLY, as Superintendent of Attica Correctional

Facility, et al., Appellants.

In the Matter of Donat REID, Respondent, v. Walter R. KELLY, as Superintendent of Attica Correctional

Facility, et al., Appellants.

In the Matter of Oscar CARRION, Respondent, v. Walter R. KELLY, as Superintendent of Attica Correctional

Facility, et al., Appellants.

In the Matter of Michael McCLANAHAN, Respondent, v. Walter R. KELLY, as Superintendent of Attica Correctional

Facility, et al., Appellants.

Court of Appeals of New York.

Dec. 23, 1987.

Robert Abrams, Atty. Gen. (Peter H. Schiff, O. Peter Sherwood and Martin A. Hotvet, Albany, of counsel), for appellants.

Norman P. Effman and Leigh E. Anderson, Attica, for respondents in the first five above-entitled proceedings.

Norman P. Effman and Susan K. Jones, Attica, for respondents in the sixth and seventh above-entitled proceedings.

OPINION OF THE COURT

SIMONS, Judge.

The issue presented in each of these seven prison disciplinary proceedings is whether the results of Syva Emit-st Drug Detection System Tests, known as EMIT tests, can constitute substantial evidence to support respondents' determination finding an inmate guilty of violating a rule prohibiting the use of a controlled substance. We hold that in each case the positive results of an EMIT test, when confirmed with the results of a second EMIT test, constitutes substantial evidence to support the determination. Accordingly, in each proceeding the judgment of the Appellate Division annulling respondents' determination should be reversed and the petition dismissed.

In each of these disciplinary proceedings, the petitioner was charged with violating inmate rule 113.12 (7 NYCRR 270.1N.Y.2d 139] ), prohibiting the use of narcotics. In support of the charges, respondents relied on the positive results of two EMIT tests performed on the petitioners' urine. The results were admitted into evidence based on a documentary foundation consisting of a request for urinalysis test form, a urinalysis procedures form, a printed result card produced by the testing apparatus and a report prepared by the manufacturer of the EMIT test, explaining the nature of the test, its limitations and its reliability. In the reliability section of the report, it is stated that the Center for Disease Control in Atlanta, Georgia, has conducted surveys since 1972 on the reliability of the different analytical methods of drug testing. Specifically, the report states that "Emit tests have been shown to be among the most consistently accurate drug testing methods in current use" with recently published data showing that the percentage of correct results from EMIT tests ranged from 97% (for amphetamines, barbiturates, morphine and phencyclidine) to 99% (for cocaine and methadone).

In Lahey, Gatson, Wiggins, Green and Reid, the inmate misbehavior report specifies the suspicious activity or circumstance that warranted the imposition of the drug test. For example in Lahey, the report states that the inmate was requested to submit to a urinalysis test after he and four other inmates were seen by a correction officer smoking and passing what appeared to be a marihuana cigarette. In McClanahan and Carrion, the misbehavior report states that the test was performed as a routine matter following petitioner's participation in the Family Reunion Program. ¹ Each petitioner was permitted to introduce evidence at a prison disciplinary hearing in an effort to explain the positive tests results. Several of the inmates stated that they were taking other medications and suggested that this may have caused the positive test results. Respondents found each petitioner guilty of violating the rule and assessed penalties ranging from 30 days keeplock and loss of phone privileges to four months loss of participation in the Family Reunion Program.

Petitioners thereafter commenced these article 78 proceedings seeking to annul the determinations. In Lahey, Gatson, Wiggins, Green and Reid, Supreme Court, Wyoming County, granted the petitions and expunged from the record any reference to the alleged violation of the drug use rule. In Carrion and McClanahan, Supreme Court transferred the proceeding to the Appellate Division, Fourth Department.

Considering each case as if it had been properly transferred pursuant to CPLR 7804(g), the Appellate Division, Fourth Department, annulled the determinations and expunged any reference to the alleged drug use from petitioners' records, stating in the lead case (Matter of Lahey v. Kelly ), that the record contained insufficient evidence to establish the reliability, and thus the admissibility of the EMIT test results. Because the Fourth Department and the Third Department ( see, Matter of Vasquez v. Coughlin, 118 A.D.2d 897, 499 N.Y.S.2d 461) had reached different results on the use of EMIT tests, we granted respondents leave to appeal.

It is well established that in order to annul an administrative determination made after a constitutionally required hearing a court must be satisfied, after reviewing the record as a whole, that the record lacks substantial evidence to support the determination ( Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 522 N.Y.S.2d 478, 517 N.E.2d 193; People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997; 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183; CPLR 7803). "While the quantum of evidence that rises to the level of 'substantial' cannot be precisely defined, the inquiry is whether 'in the end the finding is supported by the kind of evidence on which responsible persons are accustomed to rely in serious affairs' " ( People ex rel. Vega v. Smith, supra, 66 N.Y.2d at 139, 495 N.Y.S.2d 332, 485 N.E.2d 997, quoting National Labor Relations Bd. v. Remington Rand, 2nd Cir., 94 F.2d 862, 873).

In each of these cases, the results of the EMIT drug tests were the sole evidence used to support the ultimate conclusion that the inmate had used illegal narcotics. Thus, to determine if there is substantial evidence to support the determinations it is necessary to examine the reliability of the EMIT drug test.

EMIT is an acronym for enzyme multiple immunoassay technique. An EMIT test does not measure the amount of drugs in the urine directly, but instead measures the reaction of an enzyme to a specified drug. The major advantages of the EMIT test are that it is quick, relatively inexpensive, and can be operated by people who are not scientific experts. The system works on a biochemical principle. Certain antibodies are added to the urine specimen and the reactions which result produce a substance which can be compared to known values through a device known as a photometer. Within 90 seconds the photometer prints on the result card whether the sample is positive or negative for the drug in question. If the initial EMIT test turns up negative, no further action is taken. If, however, the test results are positive, a second test is conducted. If the second test is also positive then a misbehavior report charging a violation of rule 113.12 is prepared by the correction officer who performed the second test.

Petitioners' concession that they challenge neither the right nor the duty of the Department of Correctional Services to use the EMIT test to address the serious problem of narcotics abuse in State correctional facilities helps to frame the issue. Essentially, petitioners argue that although EMIT tests may be employed in prison disciplinary proceedings, unless the positive tests results are confirmed with an independent method of drug testing, they do not constitute substantial evidence to support a determination that an inmate has violated the rule against using narcotics.

To determine reliability of the EMIT tests, we turn first to the most recent litigation involving their use, the Federal action of Peranzo v. Coughlin.

In 1984, inmates subject to the jurisdiction of the New York State Department of Correctional Services filed a class action in the United States District Court for the Southern District of New York, alleging that EMIT urinalysis drug testing was so unreliable that use of such results as the sole evidence of guilt in disciplinary proceedings was a violation of due process of law. Each of the petitioners on these appeals was, as a member of the class, a plaintiff in the Federal action. ² Initially, the District Court denied the plaintiffs' motion for a preliminary injunction and denied defendant correction officials' cross motion to dismiss the complaint for failure to state a claim upon which relief could be granted ( Peranzo v. Coughlin, 608 F.Supp. 1504). Instead, the court requested that a study of the reliability of EMIT testing, as performed by the Department of Correctional Services be undertaken. Such studies were conducted and the results completed and based upon the conclusions of the report, District Court granted the Department's motion for summary judgment and dismissed the Peranzo action ( Peranzo v. Coughlin, 675 F.Supp. 102).

The study of the ...