Opinion
February 27, 1995
Appeal from the Supreme Court, Kings County (Ramirez, J.).
Ordered that the judgment is modified, on the law and as a matter of discretion, by deleting the third decretal paragraph thereof and substituting therefor the following decretal paragraph: "ORDERED that the matter is remitted to the respondent New York State Liquor Authority for the imposition of a new penalty not to exceed a suspension of the petitioner's license for more than 30 days (5 days forthwith and 25 days deferred) and a bond claim of $1000"; as so modified, the judgment is affirmed, without costs or disbursements.
Under the circumstances of this case, we find that the Supreme Court properly found that the penalty imposed by the Liquor Authority was excessive. The record shows that the petitioner had an unblemished record, and that, in purchasing alcoholic beverages from a distributor not licensed in the State of New York, the petitioner had no illegal intent. It attempted to verify whether the distributor was licensed, and it fully cooperated with the respondent's investigation (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233; Matter of Levittown Events v. Duffy, 135 A.D.2d 539; see also, Matter of CBH Pioneer Enters. v. New York State Liq. Auth., 172 A.D.2d 520).
However, the Supreme Court improperly imposed a reduced penalty. Upon a finding that a penalty is excessive in that it is "so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness", the reviewing court must remit the matter to the agency for the imposition of an appropriate penalty (see, CPLR 7803; Rob Tess Rest. Corp. v. New York State Liq. Auth., 49 N.Y.2d 874, 875-876). The court is free to state the maximum penalty the record will sustain (see, Rob Tess Rest. Corp. v. New York State Liq. Auth., supra). We find that the reduced penalty imposed by the Supreme Court is the maximum that the record will sustain in this case. Sullivan, J.P., Miller, Copertino, Joy and Friedmann, JJ., concur.