
    In the Matter of Brian M. Kennedy, Petitioner, v Wayne E. Bennett, Respondent.
    [818 NYS2d 776]
   Motion by the respondent for leave to reargue a proceeding pursuant to CPLR article 78 to review a determination of the respondent dated January 12, 2004, which was determined by decision and judgment of this Court dated February 7, 2006, or for leave to appeal to the Court of Appeals from the decision and judgment of this Court.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the branch of the motion which is for leave to appeal to the Court of Appeals is denied; and it is further,

Ordered that the branch of the motion which is for leave to reargue is granted, and upon reargument, the decision and judgment of this Court dated February 7, 2006 (Matter of Kennedy v Bennett, 26 AD3d 334 [2006]), is recalled and vacated, and the following decision and judgment is substituted therefor:

Proceeding pursuant to CPLR article 78 to review a determination of the respondent dated January 12, 2004, which, after a hearing, found the petitioner guilty of two of the three charges of misconduct filed against him and dismissed him from the New York State Police Department.

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

The Hearing Officer’s findings of guilt as to two charges were supported by substantial evidence (see CPLR 7803 [4]), and the penalty imposed by the respondent is not so disproportionate to the offenses as to be shocking to one’s sense of fairness (see Matter of Waldren v Town of lslip, 6 NY3d 735 [2005]; Matter of Alfieri v Murphy, 38 NY2d 976 [1976]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]). Among the factors considered by this Court is that the petitioner, who had not yet achieved 20 years of service, will not lose his pension as a result of this termination (see Retirement and Social Security Law § 381-b [b] [3]). Miller, J.P., Crane, Skelos and Dillon, JJ., concur.  