Opinion
February 2, 1998
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support the determination ( see, Matter of Lahey v. Kelly, 71 N.Y.2d 135; Matter of LaCanfora v. Lloyd, 229 A.D.2d 496). Contrary to the petitioner's contention, the hearing record amply supports the Hearing Officer's finding that the petitioner intended to steal a video cassette recorder from the Herricks Middle School. Although the petitioner denied it, the charge was supported by the testimony of a number of witnesses. A reviewing court may not weigh the evidence or reject the credibility determination made by the Hearing Officer where there is conflicting evidence and room for choice exists ( see, Matter of Silberfarb v. Board of Coop. Educ. Servs., 60 N.Y.2d 979; Matter of McQueeney v. Dutchess County Sheriff, 223 A.D.2d 710, 711).
The penalty of dismissal was not so disproportionate to the offense committed as to be shocking to one's sense of fairness ( see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222; Matter of Roach v. Plainedge Union Free School Dist., 230 A.D.2d 861; Matter of McQueeney v. Dutchess County Sheriff, supra).
Rosenblatt, J. P., Miller, Copertino and Pizzuto, JJ., concur.