dissents in part in a memorandum as follows: I agree with the majority that the Commissioner failed to establish by substantial evidence specifications 6 and 10 (leaving work early and falsifying business records). I also agree that the matter must be remanded for a determination of the appropriate penalty on the remaining specifications.
I must disagree, however, with the additional direction of the majority that, regardless of the penalty to be imposed, even if the Commissioner still sees fit to order termination, he must grant petitioner the right to apply for a vested interest retirement.
The law is clear that in our review of a penalty imposed by the Commissioner, we may not substitute our judgment for his but merely must determine whether that penalty is “so disproportionate to the offense as to be shocking to one’s sense of fairness” (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 237 [1974]; Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]).
The majority’s reliance on Matter of McDougall v Scoppetta (76 AD3d 338 [2010], appeal withdrawn 17 NY3d 902 [2011]), a Second Department case, is misplaced. There, the petitioner engaged in one instance of taking cocaine. Here, petitioner, at different times engaged in taking nude photographs of a rape victim. He also compelled a young female suspect brought to the station for a minor motor vehicle matter to allow him to photograph her naked breast, falsely claiming it was in case she was brought in on later charges.
Certainly, a case far more on point is Matter of Harp v New York City Police Dept. (96 NY2d 892 [2001], revg 277 AD2d 147 [2000]). There, petitioner NYPD officer was found guilty after a disciplinary hearing of making false or misleading statements during an internal investigation interview. He was dismissed and his pension rights forfeited. We upheld the guilty finding, but found that the penalty was disproportionate to the misconduct and thus shocked the judicial conscience. Citing petitioner’s record of 15 years’ excellent service with no prior disciplinary record and his “Exceeds Standards” ratings, as well as the fact that “the false statements given by petitioner here were of relatively minor significance,” we found the penalty “a shockingly excessive sanction here” (277 AD2d at 148). The Court of Appeals reversed, holding that “[a]n 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 . . . Under the *548circumstance 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 Harp, 96 NY2d at 894, quoting Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001]).
The majority cannot question that the Commissioner engaged in anything other than a careful review of this case, including the effect the penalty would have on petitioner. Supporting the Commissioner’s determination on the record before us is hardly the “rubber stamp” the majority so cavalierly refers to; it is, by the constraints of the limited review afforded us, whether we agree with it or not, completely supported by the record.