concurs in part and dissents in part and votes
to confirm the determination under review and dismiss the petition on the merits, with the following memorandum, in which Kunzeman, J., concurs. Having found that (1) under the circumstances, there was substantial evidence on record upon which to conclude that the New York City Transit Authority (hereinafter the Authority) had a reasonable suspicion to demand that the petitioner submit to blood and urine tests, (2) the charges preferred against him after his refusals to submit to those tests were sustained by substantial evidence, and (3) the penalty imposed was not so disproportionate to the offense as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 223), I vote to confirm the determination of the Authority. My conclusion is strengthened by the following dictum of the Court of Appeals in the recently decided case of Matter of Matt v Larocca (71 NY2d 154, 160): "Public employees, charged with a public trust, do not have an absolute right to refuse to account for their official actions and at the same time retain their employment”. Notwithstanding the factual disparities between the instant case and Matter of Matt v Larocca (supra), which *301involved the refusal of a public employee, who was also the target of a criminal investigation, to answer questions relating to the performance of his official duties, the cited language is nevertheless illustrative inasmuch as it expresses a general statement of policy.
Of particular significance are the petitioner’s varying explanations for his conduct on June 14, 1985. At a Step Two Disciplinary Hearing conducted three days after the incident, the petitioner revealed that he had refused to submit to a blood alcohol test due to his fear of needle injections and communicable diseases which he had learned of from the communications media. His refusal to submit to urinalysis was predicated upon his fear that his employer would thereby detect his epilepsy. The petitioner had also indicated that, prior to arriving at work on June 14, 1985, he had attended a graduation party at which he had consumed vodka and orange juice. The subject statements were reduced to writing. At the August 2, 1985, evidentiary hearing, however, the petitioner testified that he had lied at the earlier hearing with respect to his having imbibed alcohol at a graduation party on the date of the incident. He claimed to have fabricated that story upon the advice of a union representative. The petitioner testified that he was not in fact drinking or under the influence of any drugs on June 14, 1985.
It bears further noting that at the August 2, 1985, hearing, the petitioner proffered a further excuse for his having been present in the subject area at the time in issue. In his capacity as chief electrician for the Coney Island Main Shop, the petitioner had decided to check the designated location to ascertain whether the row of approximately 100 fluorescent lights located there was operative.
The record contains testimony of supervisory personnel with respect to the sound of a tool locker being closed at the approach of the confronting supervisors. Of further significance are the contents of two lockers, which were in close proximity to where the petitioner had been observed loitering outside his customary work station for approximately one-half hour. These were found to contain a nearly empty bottle of vodka and a white powdered substance along with a razor blade and a plastic tube. Under the circumstances, I cannot escape the rational conclusion that the Authority’s demand that the petitioner submit to blood and urine testing was predicated upon reasonable suspicion. It cannot be gainsaid that probable cause is not required where the request to submit to testing is not aimed at the discovery of evidence for *302use in a criminal trial (see, Matter of King v McMickens, 120 AD2d 351, 353, affd 69 NY2d 840, rearg denied 69 NY2d 985). Moreover, the petitioner’s inconsistent utterances seriously impugned his credibility, while his highly responsible position involving the safety and maintenance of a public transportation network precludes interference with the discipline imposed. Inasmuch as the Authority’s determination was supported by " 'such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ ” (Matter of King v McMickens, supra, at 353, quoting from 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180), that determination, which had a rational basis, should be confirmed and the petition dismissed.
I concur with my colleagues of the majority only to the extent that they have held that the charge that the petitioner, while on duty, was away from his work station without authorization was supported by substantial evidence.