Opinion
April 23, 1991
Appeal from the Supreme Court, New York County (C. Beauchamp Ciparick, J.).
The credited testimony of the Department's two officers, one of whom observed the infraction, constituted substantial evidence to support the Commissioner's determination that petitioner, on September 6, 1988, wrongfully accepted food from a diner without tendering payment for the items received. The Hearing Officer specifically rejected petitioner's testimony and that of her fellow officers, testifying on her behalf, as "unreliable". Where, as here, the Hearing Officer has fully considered the testimony submitted and has made credibility determinations, such determinations are "unassailable" (Matter of Berenhaus v. Ward, 70 N.Y.2d 436).
We note that the penalty imposed is not so disproportionate to the offense as to be shocking to one's sense of fairness (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222).
Concur — Carro, J.P., Milonas, Ellerin, Smith and Rubin, JJ.