Asch, J. (concurring). I agree that there was substantial evidence at the hearing to support the determination that petitioner used cannabis.
The Court of Appeals has determined that the positive results of an EMIT test, when confirmed by the results of a second EMIT test, constitute substantial evidence (see, Matter of Lahey v Kelly, 71 NY2d 135, 138).
However, under the circumstances of this case, termination of petitioner’s employment was " 'shocking to one’s sense of fairness’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 234). Petitioner took this urine test voluntarily, as a condition of promotion to detective. There was no indication petitioner had ever been involved with drugs or drug abuse in the 16 Vi years during which he had served as a police officer. In addition, petitioner had never been cited for dereliction of duty, for being late to work, or for taking too much sick time. This unblemished record might not suffice to warrant a less severe punishment if petitioner had tested positive for cocaine or heroin. However, while even a single use of cannabis is certainly not proper for a police officer and warrants punishment, the Legislature has seen fit to "decriminalize” the possession of a small amount of marihuana for personal use (Marihuana Reform Act of 1977 [L 1977, ch 360]). The purpose of the act was expressly to insure that "the conduct which this act makes a violation not be subjected to unduly harsh sanctions” (L 1977, ch 360, § 1).
Petitioner, accordingly, is not guilty of a crime, but simply an offense (see, Penal Law § 221.05). Under all these circumstances, I believe the penalty of dismissal was completely disproportionate to the offense, and I would modify solely to vacate the penalty and remand with the recommendation that a lesser penalty be imposed.