1 No. 121 SSM 12
   In the Matter of Jeffrey Harp,
   Respondent,
   v.
   New York City Police Department,
   Appellant.
     _________________________________________________________________

   2001 NY Int. 101

   July 10, 2001

   This memorandum is uncorrected and subject to revision before
   publication in the New York Reports.

   Submitted by A. Orli Spanier, for appellant.
   Submitted by Eugene Prosnitz, for respondent.
     _________________________________________________________________
     _________________________________________________________________

   MEMORANDUM:

   The order of the Appellate Division, insofar as appealed from, should
   be reversed, with costs, and the petition dismissed in its entirety.

   After a disciplinary hearing, the Police Commissioner found that
   petitioner Jeffrey Harp, an Internal Affairs officer, wrongfully made
   false and misleading statements while under oath at an official
   interview regarding his activities in connection with a matter under
   Internal Affairs investigation. The Appellate Division held that this
   determination was supported by substantial evidence. Finding the
   administrative penalty to be excessive, the court vacated petitioner's
   dismissal and remanded for reconsideration.

   An administrative penalty must be upheld unless it "is so
   disproportionate to the offense as to be shocking to one's sense of
   fairness," thus constituting an abuse of discretion as a matter of law
   (see, Matter of Pell v Board of Educ., , 34 NY2d 222, 237; CPLR
   7803 (3)). Under the circumstances of this case, it cannot be
   concluded that, as a matter of law, "the penalty of dismissal imposed
   by the Commissioner shocks the judicial conscience" (Matter of Kelly v
   Safir, , 96 NY2d 32, 39-40; see also, Matter of Ansbro v McGuire, ,
   49 NY2d 872, 874).

   On review of submissions pursuant to section 500.4 of the Rules,
   order, insofar as appealed from, reversed, with costs, and petition