
    [644 NE2d 1305, 620 NYS2d 749]
    In the Matter of Gerald Gordon, Appellant, v Lee P. Brown, as Police Commissioner of the City of New York, Respondent.
    Argued October 20, 1994;
    decided December 6, 1994
    
      POINTS OF COUNSEL
    
      Murphy & Maviglia, New York City (Beatrice Maviglia of counsel), for appellant.
    I. In view of the substantial margin for error in drug testing procedures, the failure to give petitioner-appellant the opportunity to confront the witnesses against him is a denial of his constitutional right to a fair hearing. (Matter of Hecht v Monaghan, 307 NY 461; Matter of Schadt v Sordino, 48 AD2d 171; Matter of Heckt v City of Lackawanna, 44 AD2d 763; Matter of Brown v Murphy, 43 AD2d 524.) II. The denial of an opportunity for petitioner-appellant to cross-examine the technicians who actually performed the tests is a denial of due process warranting an annulment of his dismissal. (Goldberg v Kelly, 397 US 254; Capua v City of Plain-field, 643 F Supp 1507; Matter of Erdman v Ingraham, 28 AD2d 5; Matter of Weston v Adduci, 140 AD2d 444; Matter of 245 Elmwood Ave. v New York State Liq. Auth., 14 AD2d 393.) III. In light of the serious defect in the hearing, the penalty of dismissal is unreasonable, arbitrary, unlawful and improper and amounts to forfeiture.
    
      Paul A. Crotty, Corporation Counsel of New York City (Timothy J. O’Shaughnessy and Stephen J. McGrath of counsel), for respondent.
    I. Petitioner received a fair hearing, comporting fully with his due process right of confrontation. (Idaho v Wright, 497 US 805; People ex rel. McGee v Walters, 62 NY2d 317; Ohio v Roberts, 448 US 56; White v Illinois, 502 US 346, 112 S Ct 736; United States v Inadi, 475 US 387; Fischer v Powers, 957 F2d 609; Reardon v Manson, 806 F2d 39, cert denied sub nom. Reardon v Lopes, 481 US 1020; People v Porter, 46 AD2d 307; Morrissey v Brewer, 408 US 471; Gagnon v Scarpelli, 411 US 778.) II. Dr. Closson’s testimony and the laboratory records provide ample evidence to support the Police Commissioner’s finding that petitioner used cocaine. (Matter of Pell v Board of Educ., 34 NY2d 222; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of Stork Rest, v Boland, 282 NY 256; Matter of Berenhaus v Ward, 70 NY2d 436; Matter of Collins v Codd, 38 NY2d 269; Matter of Purdy v Kreisberg, 47 NY2d 354; McCann v City of New York, 170 AD2d 193; Matter of Brown v Murphy, 43 AD2d 524.)
   OPINION OF THE COURT

Chief Judge Kaye.

Was petitioner denied due process when, in an administrative hearing on charges of ingesting and possessing cocaine, the New York City Police Department produced the supervisor, but not the technicians, employed by the laboratory that performed the EMIT and GC/MS tests on petitioner’s urine specimen? We conclude, as did the Appellate Division, that due process did not require production of the laboratory personnel where no question was raised as to the general reliability of the procedures, where the supervisor familiar with each step in the procedure was subject to cross-examinatian, and where no claim was made of any particular defect in testing petitioner’s specimen.

Petitioner, a long-time New York City police officer, on June 11, 1991 was randomly selected for DOLE urinalysis drug screening. The sample, taken the next day, tested positive for cocaine, and petitioner was charged with violating Department rules by ingesting and possessing cocaine.

At the departmental hearing, where the results were received in evidence, Dr. William Closson, Director of Forensic Toxicology at the Brunswick Hospital Center, under whose direction petitioner’s specimen was tested, described each step followed to ensure the security of samples and accuracy of results. Although he personally reviewed all of the data and chain of custody documentation in concluding that petitioner’s specimen tested positive for cocaine, he did not himself observe or perform the procedures. The Department called none of the toxicologists who actually did the testing or the laboratory technician who processed the specimen.

As Dr. Closson explained, upon arrival at the laboratory the two vials provided by petitioner were inspected by a laboratory technician, who noted no evidence of tampering. Thereafter, one vial was subjected to an EMIT screening test, performed by a toxicologist under Dr. Closson’s direction. That test, which screened for the presence of 10 different drugs, yielded a presumptively positive result for cocaine, so the same test — which yielded a similar result — was performed on the reserve vial by a second toxicologist. Both vials were then subjected to GC/MS, a more sophisticated procedure able to detect the presence of 16 drugs, for confirmation by a third toxicologist of the preliminary positive results. That test detected benzoylecgonine — a cocaine metabolite detectable in urine for three to four days after ingestion of cocaine — in both vials in amounts three to four times higher than the detection limit. All four results were negative as to the presence of any drug other than cocaine.

After reviewing the recorded data and the chain of custody, Dr. Closson prepared a final report for each vial. Based on the positive results in each vial, he concluded that both samples contained benzoylecgonine and reported a positive result for cocaine. The specimen was retained and provided to petitioner for retesting by an independent laboratory. As part of its case, the Department also produced Sergeant Jacques Rodriguez of the Health Services Division, who testified that he witnessed petitioner fill the vials, place the lids on the vials, initial them, seal them with tamper-evident tape, and insert them in a tamper-evident envelope that was sealed in petitioner’s presence.

At the close of the Department’s case, petitioner moved to dismiss the charges on the ground that, without the laboratory technicians, the evidence was legally insufficient. The hearing officer denied the motion.

Petitioner thereafter testified that he did not ingest cocaine and could not account for the positive results; that he refused the offer of his supervisor to postpone the test on account of an important detail that day; and that he had received awards for Meritorious Police Duty and Excellent Police Duty. Petitioner’s supervisor, Lieutenant Phillip Romano, confirmed that petitioner had declined his offer of a postponement, and testified that he had never suspected petitioner of using drugs.

The hearing officer concluded that the Department had proved by a preponderance of credible evidence that petitioner’s urine specimen contained benzoylecgonine, noting that the chain of custody was intact, the results reliably indicated the substance’s presence, and there was no evidence of tampering or contamination. The hearing officer rejected petitioner’s testimony, observing that "denial is one of the primary defense mechanisms of drug abusers” and that "I do not believe that [petitioner’s] use of drugs would necessarily be apparent to co-workers while he was on-duty.” Accordingly, the hearing officer found petitioner guilty as charged and, noting that petitioner had been designated "Chronic Absent, category A” on four occasions in 1987 and one occasion in 1988, and "Chronic Absent, category B” on five occasions in 1988 and two occasions in 1989, recommended termination. The Commissioner thereupon terminated petitioner.

By this CPLR article 78 proceeding petitioner challenged his termination, alleging that he had unlawfully been denied the opportunity to cross-examine the four laboratory technicians who had handled his specimen. The Appellate Division confirmed the Commissioner’s determination. We granted leave and now affirm.

While the constitutional right of confrontation is confined to criminal proceedings (NY Const, art I, §6; US Const 6th Amend), we have as a matter of due process recognized a limited right to cross-examine adverse witnesses in administrative proceedings (see, Matter of McBarnette v Sobol, 83 NY2d 333, 339; Matter of Friedel v Board of Regents, 296 NY 347, 352-353). In assessing whether due process requires the production of particular witnesses for cross-examination, a hearing officer should consider the nature of the evidence, the potential utility of trial confrontation in the fact-finding process, and the burden of producing the witness (see, e.g., People ex rel. McGee v Walters, 62 NY2d 317, 319-320).

We agree with respondent that, in this case, cross-examinatian of the laboratory technicians was not required. Petitioner neither disputes the general reliability of the testing procedures used (see, Matter of Lahey v Kelly, 71 NY2d 135) nor alleges any particular error in handling or testing his specimen. Moreover, the utility of cross-examination would have been limited by the fact that the technicians are unlikely to recall petitioner’s urine specimen, which, like the 50,000 other specimens tested annually, was identified only by number, and production of the four technicians would impose more than a minimal burden on the Department. Petitioner’s due process right was fully protected in the present case by his opportunity to confront the laboratory supervisor and cross-examine him vigorously about every step of the procedure. That examination yielded no evidence of a problem pointing to the need for further questioning of any employee.

Petitioner’s essential claim is that, without confronting each technician, he was foreclosed from uncovering possible human error in this case. We note that other avenues were available to him — for example, he could (and did) examine the testifying witnesses; the specimen, supporting data and other documentation created by the laboratory were provided to him for independent analysis; and the technicians could have been called by petitioner himself (see, Matter of Gray v Adduci, 73 NY2d 741, 743; see also, United States v Inadi, 475 US 387, 396-397).

In the absence of any particular allegation of error, on this record we cannot agree that the hearing officer’s reliance on the testimony of Dr. Closson was unlawful, and we reject the blanket rule proposed by petitioner that due process in every instance requires production of all such witnesses. We note that several courts have rejected similar challenges even in criminal proceedings (see, Minner v Kerby, 30 F3d 1311 [10th Cir 1994] [admitting testimony of laboratory supervisor regarding results of test performed by subordinate]; United States v Smith, 964 F2d 1221 [DC Cir 1992] [same]; Reardon v Manson, 806 F2d 39 [2d Cir 1986], cert denied sub nom. Reardon v Lopes, 481 US 1020 [same]).

Petitioner’s argument ultimately hinges on one assertion: with an accuracy rate of 99 to 99.9% the GC/MS procedure might possibly yield 500 erroneous results out of 50,000 tests annually, and his results could conceivably have been one of the errors. That statistic refers to Dr. Closson’s testimony regarding erroneous results, not all false positives as petitioner claims. But even more to the point, those rates refer to a single GC/MS test. As Dr. Closson testified, where four separate procedures are performed — two EMIT tests and two GC/MS tests — the "margin of error is as close to zero as possible” (see also, Lahey, 71 NY2d, at 142-143, supra).

Addressing the dissent, we agree that no lesser standard of confrontation should be applied to police officers than to anyone else. Due process does not require, however, that, without some particular challenge, every laboratory employee involved in testing a urine sample be produced at an administrative hearing, which would be the consequence of the rule propounded by the dissent. We share as well the underlying concern that one’s career and reputation not be stained by a single test result where there is any possible error in the testing. But it is no answer to establish a constitutional requirement that the laboratory technicians be produced for cross-examination — which is the issue presented to us for review. Such a requirement is surely unwarranted on this record.

Finally, we reject petitioner’s alternative argument that termination was an unduly harsh penalty, in that " 'the measure of punishment or discipline imposed [was not] so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness’ ” (Matter of Pell v Board ofEduc., 34 NY2d 222, 233).

Accordingly, the judgment of the Appellate Division should be affirmed, with costs.

Smith, J.

(dissenting). Petitioner had the right to confront the persons who performed the tests leading to his termination from the Police Department. I, therefore, dissent.

The right to confront witnesses is imbedded in American law. "In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses” (Goldberg v Kelly, 397 US 254, 269). In another context this Court has stated that a decision dispensing with the right of confrontation must be based on a finding of good cause (People ex rel. McGee v Walters, 62 NY2d 317, 322 [parole revocation hearing]). No good cause for the absence of the witnesses was established here.

This Court should not apply a lesser standard of confrontation to a person who has meritoriously served the police force for a period of 17 years than it does to a person who has been found guilty of a crime and who faces a parole revocation hearing. The sole evidence against the petitioner was a report which found benzoylecgonine, a cocaine derivative, in his urine. Petitioner had been chosen randomly to undergo the test. The evidence is that he used one of two vials, and when he was unable to use the other, a portion of his urine was poured from the first into the second vial.

In People ex rel. McGee v Walters (supra), this Court stated that when the right of confrontation was dispensed with, the administrative tribunal had to consider (1) its favored status, (2) the nature of the evidence at issue, (3) the potential utility of cross-examination, and (4) the State’s burden in being required to produce the witness (62 NY2d, at 319-320). Each of these standards, applied in this case, is favorable to the petitioner. First, the right of confrontation is favored here as it is in all similar contexts where decisions turn on questions of fact. Second, as to the nature of the evidence, the test is the only evidence against petitioner, is decisive on his career and livelihood and is contrary to an outstanding service record. Third, the potential utility of cross-examination lies not only in any notes or records that the tester may have made as the tests were performed but also in the experience of those individuals with determinations that were unreliable. While some of the evidence attempted to demonstrate how carefully the procedures for both the EMIT test and the GC/MS tests were performed, this evidence was no substitute for having the testimony of the persons who actually performed the tests. This is particularly true where the persons performing the tests were still employed by the laboratory and where the petitioner repeatedly objected to testimony concerning the tests in their absence. Since the burden was on the respondent to establish the petitioner’s use of and possession of drugs, it is no answer to say that the petitioner could have called the absent witnesses.

As to the fourth standard, the respondent’s assertions of how burdensome production of the actual testing witnesses would be is not supported by the record. No information whatsoever is provided us to how many proceedings similar to this one are held per year at which the testers might be called to testify.

While the majority cites testimony that the chances of error were close to zero, the testimony of the one expert who testified that there were at least 500 erroneous samples per year out of the 50,000 tests performed cannot be ignored. This testimony must be weighed in the face of petitioner’s sworn denial that he had ever used drugs. In addition, while the majority also points to some chronic absenteeism on the part of the petitioner between 1987 and 1989, the record does not reveal what is meant by "Chronic Absent, category A” and "Chronic Absent, category B.” Moreover, the absences were explained by petitioner as related to a line of duty injury to his knee, and there was no showing that these absences were related to drug use.

Finally, the criminal cases which the majority cites in support of its conclusion that confrontation here was unnecessary are clearly distinguishable and inapplicable here. In each case the substance tested had been obtained from the person of the defendant or his residence. In Minner v Kerby (30 F3d 1311), one issue was whether the notes of a chemist trainee which found cocaine in the substance tested was properly admitted into evidence. The defendant had been found guilty of possession of cocaine with intent to distribute. First, the evidence was that defendant had thrown the substance under a car as the police approached. Second, the chemist trainee was no longer employed even though it was not shown that he was unavailable. Third, the absent trainee’s results had been checked and verified by his superior who did testify. Fourth, separate testing of the same substance had been done by another expert who did testify. Under these circumstances the court ruled that defendant’s right of confrontation had not been violated.

In United States v Smith (964 F2d 1221), a report of a chemist who did not testify was not the sole evidence linking the defendant to crack cocaine. The defendant had been convicted of drug trafficking activity. The evidence was that he had sold cocaine to undercover officers on three occasions. A search of his home pursuant to a search warrant produced more cocaine. The chemist who performed the tests on the crack cocaine found during the search of his home did not testify because of back problems. The trial court permitted the tester’s supervisor to give his opinion of the substance seized based on Federal Rules of Evidence, rule 703 ("Bases of Opinion Testimony by Experts”). No comparable rule of evidence exists in New York State.

In Reardon v Manson (806 F2d 39 [State case is reported at State v Reardon, 172 Conn 593, 376 A2d 65]), the United States Court of Appeals found no confrontation problem when a supervisor gave testimony that certain substances contained marihuana and cocaine. The defendant had been convicted of possession of marihuana and the sale of cocaine. The Second Circuit permitted testimony from the supervisor who personally gave the substances to the toxicologists and to whom test results were brought. Some of the tests were "mechanically objective in nature” (806 F2d, at 41). It is clear that the supervisor both personally supervised and confirmed the tests undertaken.

Finally, while the majority cites Matter of McBarnette v Sobol (83 NY2d 333), for the proposition that there is a limited right to cross-examine adverse witnesses in administrative proceedings, the primary issue there was whether Public Health Law § 230 (11) (a) required written misconduct complaints against physicians to remain confidential where the complainants were known to the physician involved in disciplinary proceedings alleging sexual misconduct and had testified against him. The case certainly does not stand for the proposition that either cross-examination or confrontation of witnesses is limited.

I would reverse and send the case back for a new hearing at which the absent witnesses would be required to testify.

Judges Simons, Bellacosa, Levine and Ciparick concur with Chief Judge Kaye; Judge Smith dissents and votes to reverse in a separate opinion in which Judge Titone concurs.

Judgment affirmed, with costs. 
      
      . "EMIT” stands for Enzyme Multiple Immunoassay Technique, and "GC/MS” for Gas Chromatography/Mass Spectrometry.
     
      
      . To the extent petitioner complains of irregularity during collection of his sample, the Department produced Sergeant Rodriguez, the eyewitness to that event. Petitioner himself stipulated to the absence of Sergeant Limratana, a Health Services officer who approved petitioner’s request to pour urine from one vial into the other (see, dissenting opn, at 581).
     
      
      . When petitioner’s attorney asked respondent’s expert whether the error range could be as high as 10% (or 5,000) the expert replied, “I think taken out of context you could say that, yes”. He further indicated that such estimates of error involved "[o]lder contemporary technologies”. He stated further that the newer GC/MS instruments were "more reliable” and that the persons using these instruments in New York State were closely regulated. There was no further elaboration of the differences in the older or newer GC/MS instruments.
     
      
      . Petitioner was chronic absent, category A, four times in 1987 and one time in 1988. He was chronic absent, category B, on five occasions in 1988 and two occasions in 1989.
     