
    In the Matter of David Yan, Petitioner, v Richard J. Koehler, as Correction Commissioner of the City of New York, et al., Respondents.
   Determination of the respondent Correction Commissioner, dated August 18, 1989, which found petitioner guilty of certain charges and specifications and terminated petitioner’s employment, unanimously confirmed, and the petition brought pursuant to CPLR article 78 (transferred to this court by order of Sup Ct, NY County [Francis Pecora, J.], entered Nov. 30, 1989) is unanimously dismissed, without costs.

Petitioner was found guilty, after a hearing, of charges and specifications arising from two separate incidents, where petitioner was disrespectful to a superior officer, and spat on a fellow correction officer. In each instance, there were at least two witnesses with personal knowledge called by the respondent Department of Correction in support of the charges, whose testimony the agency was entitled to credit despite petitioner’s denials (Matter of Berenhaus v Ward, 70 NY2d 436). Petitioner’s testimony that he apologized to the captain, which would have been unnecessary if petitioner had not been disrespectful, or that he coughed at the time he was accused of spitting, could well have been found to be disingenuous by the Hearing Officer. Assuming the truth of petitioner’s claim on appeal that he was the object of ethnic discrimination, petitioner nevertheless never claimed or demonstrated below that the particular incidents in any way arose out of discrimination.

As to the penalty imposed, we cannot say that the penalty imposed was an abuse of discretion in view of prior findings of misconduct or the warning issued to petitioner (see, Matter of Gailband v Christian, 56 NY2d 890). Concur—Sullivan, J. P., Rosenberger, Wallach, Asch and Smith, JJ.  