Mistretta v. Kane , 672 N.Y.S.2d 821 ( 1998 )

—Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of Police of the Nassau County Police Department, dated July 3, 1997, which, after a hearing, found that the petitioner was guilty of three of five charges and specifications and suspended him from the position of Police Officer, without pay, for a period of one year.

Adjudged that the determination is confirmed, and the proceeding is dismissed on the merits, with costs.

It is well settled that in a CPLR article 78 proceeding to review the determination of an administrative board or officer, the determination must be upheld if it is based upon substantial evidence (see, Matter of Berenhaus v Ward, 70 NY2d 436; Matter of DiCairano v Gandolfo, 201 AD2d 727). This Court cannot reject the determination of the respondent Commissioner of Police of the Nassau County Police Department “where the evidence is conflicting and room for choice exists. Thus, when a rational basis for the conclusion adopted by the Commissioner is found, the judicial function is exhausted” (Matter of State Div. of Human Rights [Granelle], 70 NY2d 100, 106). We find that the determination of the respondent Commissioner was supported by substantial evidence.

Under the circumstances, the penalty imposed was not so disproportionate to the offense as to be “ ‘shocking to one’s sense of fairness’” (Matter of Pell v Board of Educ., 34 NY2d 222, 234).

The petitioner’s remaining contention is without merit. Sullivan, J. P., Joy, Krausman and Florio, JJ., concur.