Opinion
June 4, 1998
Adjudged that the determination is confirmed, and the proceeding is dismissed on the merits, with costs.
It is well settled that in a CPLR article 78 proceeding to review the determination of an administrative board or officer, the determination must be upheld if it is based upon substantial evidence ( see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436; Matter of DiCairano v. Gandolfo, 201 A.D.2d 727). This Court cannot reject the determination of the respondent Commissioner of Police of the Nassau County Police Department "where the evidence is conflicting and room for choice exists. Thus, when a rational basis for the conclusion adopted by the Commissioner is found, the judicial function is exhausted" ( Matter of State Div. of Human Rights [Granelle], 70 N.Y.2d 100, 106). We find that the determination of the respondent Commissioner was supported by substantial evidence.
Under the circumstances, the penalty imposed was not so disproportionate to the offense as to be "`shocking to one's sense of fairness'" ( Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 234).
The petitioner's remaining contention is without merit.
Sullivan, J.P., Joy, Krausman and Florio, J.J., concur.