Opinion
March 28, 1991
Appeal from the Supreme Court, New York County (Edward H. Lehner, J.),
As traces of cocaine and marijuana were detected in petitioner's urine, which was voluntarily given for testing at the end of a four month alcohol rehabilitation program, the determination to dismiss petitioner was supported by substantial evidence (Matter of Palmer v Koehler, 156 A.D.2d 242).
Petitioner contends that he did not voluntarily submit to the urine test because he was intoxicated when he enrolled in the program and signed the forms. However, the urine sample was given by petitioner at a time when he was not intoxicated, and we note that it is quite proper to test for drugs when a police officer returns to duty from medical leave (see, e.g., Matter of Gdanski v New York City Tr. Auth., 166 A.D.2d 590).
Petitioner further contends that inasmuch as the alcohol rehabilitation program was federally funded, 42 U.S.C. § 290dd-3 applies and prohibits the "disclosure of the records of patients participating" (quoting Jeanette "A" v Condon, 728 F. Supp. 204, 205 [Sweet, D.J.]).
We do not reach this issue inasmuch as the matter was not previously raised and, therefore, not preserved. (See, Matter of Sowa v Looney, 23 N.Y.2d 329, 333; Matter of Leogrande v State Liq. Auth., 19 N.Y.2d 418, 424.) We further note the recent holding that the Police Commissioner's dismissal of a police officer for using illegal drugs is entitled to substantial deference. (Matter of Trotta v Ward, 77 N.Y.2d 827.)
Concur — Carro, J.P., Ellerin, Kupferman, Smith and Rubin, JJ.