Mercado v. Kerik , 737 N.Y.S.2d 294 ( 2002 )

—Determination of respondent Police Commissioner, dated June 14, 2000, finding petitioner guilty of using excessive force in the performance of his duties by striking a civilian in the head with a police radio, and imposing a penalty of 10 days suspension, 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 [Marcy Friedman, J.], entered on or about January 18, 2001), dismissed, without costs.

Respondent’s findings that petitioner struck a civilian with his police radio is supported by substantial evidence, including the testimony of the complainant and the complainant’s supervisor, an uninvolved bystander. No basis exists to disturb respondent’s findings of credibility (see, Matter of Berenhaus v Ward, 70 NY2d 436, 443-444). The 10-day suspension does not shock our sense of fairness (see, id. at 445; Matter of Capozzi v New York City Tr. Auth., 176 AD2d 237, lv denied 82 NY2d 657). Concur — Andrias, J.P., Saxe, Sullivan, Rosenberger and Friedman, JJ.