IN RE: Application of Police Officer Antonio VELASQUEZ

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

IN RE: Application of Police Officer Antonio VELASQUEZ, Petitioner, For a Judgment, etc., v. Bernard B. KERIK, etc., et al., Respondents.

Decided: May 23, 2002

WILLIAMS, P.J., SAXE, BUCKLEY, ROSENBERGER, and LERNER, JJ. Howard B. Sterinbach, for Petitioner. Pamela Seider Dolgow, for Respondents.

Determination of respondents, dated August 10, 2000, which dismissed 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 Supreme Court, New York County [Sheila Abdus-Salaam, J.], entered on or about March 19, 2001), dismissed, without costs.

 There was substantial evidence to support the finding that petitioner, while off-duty, savagely beat a civilian, and it was within the province of the hearing officer to reject petitioner's claim of self-defense against his much smaller victim.   The hearing officer's credibility findings are unassailable (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193), and it is not for this Court to weigh the evidence (see, e.g., Matter of Pelayo v. Safir, 288 A.D.2d 133, 733 N.Y.S.2d 174;  Matter of Edwards v. Safir, 282 A.D.2d 287, 723 N.Y.S.2d 355). Notably, the findings against petitioner were not based on the testimony of the victim.   The seamless narrative of petitioner's misconduct was sufficiently set forth, by several disinterested witnesses, without any gaps in the proof, distinguishing the circumstances here from those in Cotterel v. City of New York, 258 A.D.2d 396, 685 N.Y.S.2d 712.   The penalty imposed does not shock our sense of fairness (see, Matter of Kelly v. Safir, 96 N.Y.2d 32, 39-40, 724 N.Y.S.2d 680, 747 N.E.2d 1280).