IN RE: Application of Reuben MALAVE (2000)

Determination of respondent Police Commissioner dated October 16, 1998, dismissing petitioner from his position as a police officer, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Harold Tompkins, J.], entered April 2, 1999), dismissed, without costs.

 Respondent's finding that petitioner patronized a prostitute in violation of § 104.01 of the Police Department Patrol Guide is supported by substantial evidence, including the testimony of two undercover police officers posing as prostitutes (see, Matter of McDonald v. Safir, 254 A.D.2d 234, 679 N.Y.S.2d 60, lv. denied 92 N.Y.2d 819, 685 N.Y.S.2d 421, 708 N.E.2d 178).   In addition, petitioner's own testimony provided substantial evidence in support of the charge that he was unfit for duty by reason of intoxication (see, Matter of Roberts v. Bratton, 233 A.D.2d 102, 649 N.Y.S.2d 137, lv. denied 89 N.Y.2d 815, 659 N.Y.S.2d 856, 681 N.E.2d 1303).

 We do not find the penalty of dismissal so disproportionate to petitioner's offenses as to shock our sense of fairness (see, Matter of Pell v. Bd. Of Educ., 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321).

MEMORANDUM DECISION.