
    In the Matter of Calvin Islar, Petitioner, v Richard Koehler, as Correction Commissioner of the City of New York, et al., Respondents.
   —Determination of the respondent Commissioner of the New York City Department of Correction dated November 2, 1988, 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 the Supreme Court, New York County [Charles Ramos, J.], entered May 22, 1989) is dismissed, without costs or disbursements.

The penalty of dismissal in this case does not shock one’s sense of fairness considering that petitioner, who recently completed his probationary training, engaged in an unprovoked physical attack upon an individual, causing said individual serious physical injury, and following the assault offered physical resistance and threats against arresting officers who responded to the scene (see generally, Matter of Pell v Board of Educ., 34 NY2d 222, 233). Notably, petitioner was subsequently convicted, upon his plea of guilty, of assault in the third degree.

While the Hearing Officer, in recommending an appropriate penalty, took note of petitioner’s prior 1987 command discipline for failure to safeguard his police identification card and shield, which should have been expunged from petitioner’s personnel file due to the lapse of time, there is no indication in his report to the respondent Commissioner that his recommendation for dismissal was in any way based upon this 1987 command discipline. In fact, the Hearing Officer’s report to the Commissioner expressly stated that it was the assault, petitioner’s failure to end it after the victim identified himself as a police officer, and the petitioner’s refusal to yield to the legitimate authority of the uniformed police, which had a "significant bearing” upon his decision to recommend dismissal. In any event, the record is otherwise sufficient to permit this court to sustain the penalty imposed (see, Matter of Pell v Board of Educ., supra, at 233-234). Concur—Kupferman, J. P., Ross, Asch, Kassal and Wallach, JJ.  