Campbell v. Brown — 172 A.D.2d 378

Majority

p. 378

In the Matter of Andrea Campbell, Petitioner, v Lee P. Brown, as Police Commissioner of the City of New York, et al., Respondents.

Determination of the respondent Police Commissioner of the City of New York, dated on or about October 4, 1989, which required petitioner to forfeit 10 days’ vacation pay, is unanimously confirmed, the petition denied

p. 379

and the proceeding brought pursuant to CPLR article 78, transferred to this Court by order of the Supreme Court, New York County (C. Beauchamp Ciparick, J.), entered May 23, 1990, is dismissed without costs or disbursements.

The credited testimony of the Department’s two officers, one of whom observed the infraction, constituted substantial evidence to support the Commissioner’s determination that petitioner, on September 6, 1988, wrongfully accepted food from a diner without tendering payment for the items received. The Hearing Officer specifically rejected petitioner’s testimony and that of her fellow officers, testifying on her behalf, as "unreliable”. Where, as here, the Hearing Officer has fully considered the testimony submitted and has made credibility determinations, such determinations are "unassailable” (Matter of Berenhaus v Ward, 70 NY2d 436 ).

We note that the penalty imposed is not so disproportionate to the offense as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222 ). Concur— Carro, J. P., Milonas, Ellerin, Smith and Rubin, JJ.

Cases cited

Berenhaus v. Ward 70 NY2d 436 N.Y. 1987-11-17 p. 379
Pell v. Board of Education 34 NY2d 222 N.Y. 1974-05-15 p. 379