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Thursday, February 11, 2010

Dismissal after testing positive in random drug test later declared inoperative by the Appellate Division ruled lawful

Dismissal after testing positive in random drug test later declared inoperative by the Appellate Division ruled lawful*
Matter of Goldin v Kelly, 2009 NY Slip Op 30646(U), March 11, 2009, Supreme Court, New York County Docket Number: 109751/08, Judge: Eileen A. Rakower [Not selected for publication in the Official Reports]

NYC police officer Jon Goldin tested positive for cocaine in a random NYPD-administered drug test that used a testing method known as radioimmunoassay of hair. A NYPD officer for fifteen years, Goldin had participated in the drug test voluntarily and without protest.

Subsequently NYPD’s Internal Affairs Bureau told Goldin that he had tested positive for cocaine. He was charged with two counts of violating NYPD Department Regulations for the possession and use of cocaine.

Goldin did not challenge the results of NYPD’s drug test but attempted to prove that the cocaine in his system was the product of “passive ingestion” through sexual contact with his girlfriend Coreen McCarthy. [Ms. McCarthy testified at the hearing that she had been using cocaine.] In support of his claim, Goldin offered expert testimony from two witnesses.

The first expert, Dr. Stephen Dresnick, a physician who has experience evaluating workplace drug, testified that Goldin’s “positive drug tests ‘certainly could have been’ caused by ‘unintentional exposure’ to cocaine through [his] intimate sexual contact with Ms. McCarthy.”

A second expert witness, Dr. Charles Jin, an expert on the psychiatry of drug addiction, testified that he examined Goldin by questioning him about his history, his family relationship, and his occupational history and came to the conclusion that Goldin “is not addicted to narcotics of any kind … [and] it would be “inconsistent with his life ‘story’ and personal ‘character’ to have used cocaine even once.”

Ultimately Goldin was found guilty of the charges and dismissed from his position.

Although the Appellate Division, First Department,* subsequently voided the test administered to Goldin based on its finding that the change of the random drug testing method to which Goldin had submitted was “a matter subject to collective bargaining, and is not encompassed within the Commissioner’s authority to discipline its police officers,” Justice Rakower ruled that this did not invalidate the Commissioner’s decision to dismiss Goldin from his position.

The court’s rationale: Goldin “voluntarily participated in the hair collection process when summoned to do so … cooperated fully, and did not object to the collection of his hair samples in any way.”

* N.B. Matter of City of New York v Patrolmen's Benevolent Assn. of City of N.Y., Inc., 56 AD3d 70; Reversed, New York Court of Appeals, 2009 NY Slip Op 09314.

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