Braxton v. Koehler

Determination of the respondent Correction *572Commissioner of the City of New York, dated October 16, 1989, which dismissed petitioner from his position as a correction officer, is unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this court by order of Sup Ct, NY County [Martin Stecher, J.], entered Dec. 29, 1989) is dismissed, without costs or disbursements.

There is substantial evidence in the record to support the Commissioner’s determination that petitioner, on or about January 21, 1989, refused the lawful order of a superior officer directing petitioner to submit to a urinalysis. The testimony of the Department’s witnesses established that petitioner, at the time of his arrest in New Jersey, was a passenger in a car together with two other individuals who were found to be in possession of cocaine, and that he was observed to have glassy, red, dilated eyes, as well as slurred speech. Based upon these specific objective facts, it was reasonable for the Department to suspect petitioner of drug use and to order that he submit to a urinalysis (see, Matter of Jefferson v Koehler, 159 AD2d 248). In view of the nature of the charges, we do not find the penalty imposed so disproportionate to the offense as to be shocking to one’s sense of fairness (see, Matter of Perez v Ward, 69 NY2d 840, rearg denied sub nom. Matter of King v McMickens, 69 NY2d 985). Concur—Carro, J. P., Ellerin, Kupferman, Kassal and Rubin, JJ.