IN RE: Police Officer Anthony NEALE

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Police Officer Anthony NEALE, etc., Petitioner, v. Raymond W. KELLY, as Police Commissioner of the City of New York, et al., Respondents.

Decided: October 13, 2005

TOM, J.P., SAXE, NARDELLI, CATTERSON, MALONE, JJ. Worth Longworth & London, LLP, New York (Howard B. Sterinbach of counsel), for petitioner. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondents.

Determination of respondent Commissioner, dated January 19, 2004, imposing a forfeiture of 30 vacation days, 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 [Alice Schlesinger, J.], entered September 23, 2004) dismissed, without costs.

 Respondents' findings that petitioner, while acting in his official capacity, utilized excessive force and was discourteous, are supported by substantial evidence, including the testimony of a disinterested witness.   There is no basis to disturb the hearing officer's credibility determinations (see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] ), and the penalty does not shock our sense of fairness (see Matter of Kelly v. Safir, 96 N.Y.2d 32, 40, 724 N.Y.S.2d 680, 747 N.E.2d 1280 [2001] ).