Putorti v. Safir

—Determination of respondent Police Commissioner of the City of New York, dated March 28, 1996, which dismissed petitioner from his position as a police officer, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Marylin Diamond, J.], entered January 24, 1997) dismissed, without costs. Petitioner’s argument that evidence adduced against him was unconstitutionally obtained was never advanced by him at his administrative hearing and we decline to consider it for the first time on article 78 review (see, Matter of Sowa v Looney, 23 NY2d 329, 333; Matter of Jemrock Realty Co. v New York State Div. of Hous. & Community Renewal, 245 AD2d 92). Had the argument been appropriately preserved, however, we would find it to be without merit. Nor is there merit to petitioner’s argument that the reviewed determination should be annulled because of the Hearing Commissioner’s decision not to exclude certain evidence as to which an unbroken chain of custody had not been established. The Hearing Commissioner’s decision upon this evidentiary matter did not deprive petitioner of a fair hearing (see, Matter of Cacchillo v Perales, 172 AD2d 98, 101-102). Finally, our review of the hearing record indicates that the challenged determination is supported by substantial evidence (see, Matter of Miller v DeBuono, 90 NY2d 783, 793). Concur — Milonas, J. P., Ellerin, Wallach, Williams and Mazzarelli, JJ.