Bassi v. City of New York , 650 N.Y.S.2d 542 ( 1996 )

Determination of the Commissioner of respondent New York City Fire Department, dated April 5, 1995, which dismissed petitioner from his position as a firefighter, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Charles Ramos, J.], entered September 27, 1995), dismissed, without costs.

The Commissioner’s determination that petitioner used cocaine is supported by substantial evidence consisting of petitioner’s admission to such use and the positive results of an August 4, 1994 EMIT and confirmatory GC/MS tests (Matter of Lahey v Kelly, 71 NY2d 135). The August 4, 1994 test was the direct result of petitioner’s expulsion from compulsory drug counseling for "non-compliance”, and was sufficiently attenuated from the suppressed April 18, 1994 test to withstand constitutional muster (see, Wong Sun v United States, 371 US 471, 487-488). Petitioner’s remaining arguments are without merit. Concur—Sullivan, J. P., Milonas, Ellerin, Nardelli and Williams, JJ.