Opinion
November 7, 1994
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
The hearsay testimony of the police officer who accompanied the undercover police officer into the petitioner's store established that the undercover officer was under 21 years of age on the date that she purchased beer from the petitioner's store. Such "[h]earsay evidence can be the basis of an administrative determination" where it is sufficiently relevant and probative to support the findings of the Administrative Law Judge (Matter of Gray v. Adduci, 73 N.Y.2d 741, 742). The Administrative Law Judge was free to accept the testimony of the testifying officer and to reject the testimony of the petitioner's witness (see, Matter of Collins v. Codd, 38 N.Y.2d 269, 270-271). Where there is conflicting testimony and questions of credibility, the reviewing court may not weigh the evidence or reject the administrative agency's determination of credibility (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444). The respondent's determination was supported by substantial evidence in the record (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 181). Further, the penalty imposed was not so disproportionate to the offense, in light of all of the circumstances, as to be shocking to one's sense of fairness (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233; Rumors Disco v. New York State Liq. Auth., 137 A.D.2d 514). O'Brien, J.P., Pizzuto, Altman and Hart, JJ., concur.