Nuzzo v. Horn

*343Determination of respondent Commissioner, dated February 18, 2004, dismissing petitioner from his position as an assistant deputy warden with the Department of Correction, 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 [Lewis Bart Stone, J.], entered October 15, 2004) dismissed, without costs.

Respondent’s findings that petitioner took property from its facility at Rikers Island without proper authorization, provided false entries on his work time sheets and then provided misleading testimony during his official interview are supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). There is no basis to disturb the Administrative Law Judge’s credibility findings (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]), and contrary to petitioner’s claims, the Administrative Law Judge did not draw negative inferences from either petitioner’s failure to testify at the hearing or his failure to call his superior, who indicated that, based on Fifth Amendment grounds, he would not testify.

The penalty of dismissal is not so disproportionate to the offenses petitioner was found to have committed as to shock our sense of fairness (see Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]).

We have considered petitioner’s remaining contentions and find them unavailing. Concur—Buckley, P.J., Friedman, Marlow, Sullivan and Malone, JJ.