Opinion
September 30, 1987
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Denman, J.P., Green, Balio, Lawton and Davis, JJ.
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 A.D.2d 923, lv granted 69 N.Y.2d 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 A.D.2d 495).