Opinion
April 28, 1995
Appeal from the Supreme Court, Erie County, Whelan, J.
Present — Green, J.P., Fallon, Callahan, Doerr and Davis, JJ.
Determination unanimously confirmed without costs and petition dismissed. Memorandum: There is substantial evidence in the record to support respondent's determination that petitioner violated Alcoholic Beverage Control Law § 65 (1), which prohibits the sale of an alcoholic beverage to persons under the age of 21 years (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 N.Y.2d 176, 181; Matter of Vitagliano v State of N Y Liq. Auth., 174 A.D.2d 624, 624-625). The testimony of the police officer, the sworn statement of the minor, and the testimony of the investigator employed by respondent, constitute substantial evidence to support the determination that an employee of petitioner's establishment sold alcoholic beverages to the minor (see, Matter of Russ v Duffy, 180 A.D.2d 1008; Matter of Culligan's Pub v New York State Liq. Auth., 170 A.D.2d 506; Matter of Harry's Chenango Wine Liq. v State Liq. Auth., 158 A.D.2d 804). Furthermore, in light of all the circumstances, 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, 233; Matter of Nycrest Corp. v New York State Liq. Auth., 109 A.D.2d 799).