Opinion
April 23, 1998
Substantial evidence supports respondent's determination that petitioner conspired with the tow truck driver to steal a battery from a towed car, and that he attempted to facilitate this scheme by indicating in his paperwork that he found the car without its battery. Petitioner's testimony that he was unaware that the battery had been taken from the car, corroborated by the tow truck driver's testimony that he sold the battery to petitioner after taking it from the car without petitioner's knowledge, raised issues of credibility that were rationally resolved by rejection of the series of coincidences urged by petitioner ( see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444). The penalty of dismissal is not so disproportionate to the offense as to shock our sense of fairness ( see, Matter of Alfieri v. Murphy, 38 N.Y.2d 976). We have considered petitioner's other arguments and find them to be without merit.
Concur — Sullivan J.P., Rosenberger, Rubin, Tom and Andrias, JJ.