Opinion
May 24, 1990
Appeal from the Supreme Court, New York County (Edward Lehner, J.).
We find there was substantial evidence to support the Commissioner's determination that petitioner used excessive force against one James King, without just cause, when he pushed Mr. King, as well as struck him in the face with a portable radio, while trying to effect a stop and inquiry. Additionally, substantial evidence existed to show that petitioner failed to prepare a stop and frisk report subsequent to his search of Mr. King; that he failed to effect the arrest of Mr. King for possession of marihuana; and that he failed to seize and voucher the marihuana found on Mr. King's person (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176).
The credited testimony of eyewitnesses Verhonda Perry, her husband, Richard Perry, and Mr. King provided sufficient evidence to sustain respondents' determination of petitioner's guilt to the charges preferred against him. Notably, the Hearing Officer expressly rejected petitioner's testimony. As the duty of weighing the evidence and choosing between conflicting evidence rests solely with the administrative agency (see, Matter of Collins v. Codd, 38 N.Y.2d 269, 270-271), we find no reason to disturb the Hearing Officer's substantive findings, which are rationally based on the record (see, Matter of Pell v Board of Educ., 34 N.Y.2d 222, 230-231).
Considering the serious nature of the multiple charges and specifications of which petitioner was found guilty, the penalty imposed was not so disproportionate to the offenses as to be shocking to one's sense of fairness (see, Matter of Pell v. Board of Educ., 34 N.Y.2d, supra, at 233).
Concur — Ross, J.P., Milonas, Kassal, Wallach and Rubin, JJ.