Pesantes v. Freund

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Education of the Herricks Union Free School District dated October 31, 1995, which, after a hearing, found the petitioner guilty of theft, and terminated his employment as a maintainer.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support the determination (see, Matter of Lahey v Kelly, 71 NY2d 135; Matter of LaCanfora v Lloyd, 229 AD2d 496). Contrary to the petitioner’s contention, the hearing record amply supports the Hearing Officer’s finding *392that the petitioner intended to steal a video cassette recorder from the Herricks Middle School. Although the petitioner denied it, the charge was supported by the testimony of a number of witnesses. A reviewing court may not weigh the evidence or reject the credibility determination made by the Hearing Officer where there is conflicting evidence and room for choice exists (see, Matter of Silberfarb v Board of Coop. Educ. Servs., 60 NY2d 979; Matter of McQueeney v Dutchess County Sheriff, 223 AD2d 710, 711).

The penalty of dismissal was not so disproportionate to the offense committed as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Roach v Plainedge Union Free School Dist., 230 AD2d 861; Matter of McQueeney v Dutchess County Sheriff, supra).