Opinion
June 1, 1995
Appeal from the Supreme Court, New York County [Karla Moskowitz, J.].
The Commissioner's determination that petitioner failed to supply a urine sample was based on substantial evidence consisting of test results showing that the specimen petitioner submitted for testing contained yellow food dye, not urine. It was within the province of the Commissioner to accept or reject evidence purporting to cast doubt on the accuracy of the test and sequence of events, including petitioner's claim that he did not supply colored water instead of urine ( Matter of Bonilla v Kelly, 213 A.D.2d 264; see, Matter of Dice v. Ward, 169 A.D.2d 461). Nor do we find the penalty of dismissal disproportionate to the offense or shocking to one's sense of fairness.
Concur — Rubin, J.P., Kupferman, Asch and Tom, JJ.