Opinion
October 11, 1990
Appeal from the Supreme Court, New York County.
There was substantial evidence in the record to support the Commissioner's determination that petitioner failed to obey a lawful order to submit to a urinalysis exam on or about April 14, 1988, and to sustain the other charges. The testimony of the Department's witnesses that petitioner, on April 14, 1988, was observed to be completely disheveled, glassy eyed, incoherent and confused, provided a reasonable suspicion of narcotics use. Notably, the Hearing Officer, based on petitioner's demeanor and testimony, found petitioner to be less than credible. As the duty of weighing the evidence and choosing between conflicting accounts 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 in the record (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222).
In view of the nature of the instant charges, and petitioner's unsatisfactory employment record during her brief tenure as a correction officer, we find the penalty imposed not so disproportionate to the offenses as to be shocking to one's sense of fairness (see, Matter of Pell v. Board of Educ., supra).
Concur — Ross, J.P., Rosenberger, Asch, Kassal and Wallach, JJ.