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

IN RE: Edward TIGHE, etc., Petitioner, v. Raymond KELLY, etc., et al., Respondents.

Decided: May 20, 2003

TOM, J.P., MAZZARELLI, ROSENBERGER, ELLERIN and WILLIAMS, JJ. Howard B. Sterinbach, for Petitioner. Jane L. Gordon, for Respondents.

Determination of respondent Police Commissioner, dated December 5, 2001, dismissing petitioner from his position as a New York City 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 [Michael Stallman, J.], entered on or about May 20, 2002), dismissed, without costs.

Substantial evidence, including the testimony of the complainant and his mother, supports respondent's finding that petitioner sexually assaulted a child less than 14 years of age.   While petitioner denied the conduct at issue, it was the prerogative of the Deputy Commissioner, who saw and heard the witnesses, to reject his testimony as not credible (see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193;  Matter of Cassino v. Kerik, 301 A.D.2d 403, 752 N.Y.S.2d 862).   In view of the proven misconduct, the penalty of dismissal does not shock our sense of fairness (see id.).