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Decision No. 13,227

Appeal of LUIS OLIVERA, on behalf of his son, SEQUAWN OLIVERA, from action of the Board of Education of the Brentwood Union Free School District concerning student discipline.

Decision No. 13,227

(July 22, 1994)

Lerner & Phin, Esqs., attorneys for petitioner, Teresa D. Phin, Esq., of counsel

Bernard T. Callan, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals the decision of the Board of Education of the Brentwood Union Free School District ("respondent") to suspend his son for the remainder of the school year. The appeal must be dismissed.

On December 20, 1993, Sequawn, with two other students, was accused of assaulting a fourth student. Pursuant to Education Law '3214(3)(c), a hearing was held on December 20, 1993. Subsequently, the hearing officer issued his report finding that Sequawn was guilty of the charge. The hearing officer recommended suspension from respondent's regular day school for the remainder of the school year. The hearing officer also recommended that Sequawn be permitted to enroll in respondent's alternative evening high school and summer school to enable him to complete his diploma requirements by August 1994. By letter dated January 13, 1994, respondent's superintendent notified petitioner that he had accepted the hearing officer's findings and recommendations. Respondent affirmed the decision of the superintendent on February 9, 1994. Notice of respondent's determination was given to petitioner by letter dated February 10, 1994. Petitioner commenced this appeal on March 10, 1994.

Petitioner contends that the decision to suspend Sequawn is contrary to the evidence presented at the hearing. Respondent denies that contention. The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Pierrot, 33 Ed Dept Rep 67; Appeal of Kittell, 31 id. 419; Appeal of Ezard, 29 id. 135). A review of the record indicates that the findings of the hearing officer were based on the testimony of the victim and another student who witnessed the assault. Both students testified that Sequawn participated in the assault. Other witnesses for petitioner testified that Sequawn was either not at the scene of the assault or was at the scene but not involved in the assault. However, the testimony of these witnesses was contradictory, and the hearing officer found such testimony to lack credibility.

Regarding the hearing officer's determination of the credibility of the witnesses, the hearing officer was in the best position to assess the credibility of those who testified at the hearing. The hearing officer, after reviewing the demeanor of all the witnesses, apparently found respondent's witnesses credible and petitioner's witnesses unreliable. Unless there is clear and convincing evidence that this determination of credibility is inconsistent with the facts, the Commissioner of Education will not substitute his judgment for that of the trier of fact (Appeal of Newman, 33 Ed Dept Rep 613; Appeal of LePore, 28 id. 425). The record does not provide a basis for concluding that the hearing officer incorrectly credited or failed to credit the testimony of any of the witnesses or that the conclusions drawn from the testimony were unreasonable or contrary to the weight of the evidence. In any event, the determination of credibility of the witnesses was substantiated when, subsequent to the commencement of this appeal, two of petitioner's alibi witnesses recanted their testimony regarding Sequawn's whereabouts at the time of and involvement in the assault. Accordingly, there is no basis for overturning respondent's determination in this matter.