| Matter of Dewitt v New York State Bd. of Law Examiners |
| 2011 NY Slip Op 09569 [90 AD3d 1457] |
| December 29, 2011 |
| Appellate Division, Third Department |
| In the Matter of Rose Dewitt, Petitioner, v New York State Boardof Law Examiners, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of counsel), forrespondent.
Rose, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of misconduct during the July 2009 bar examination.
Petitioner took the New York State bar exam in July 2009 and was thereafter charged withviolating respondent's misconduct rule by copying, or seeking to copy, another candidate'sanswers to multiple choice questions during each day of the exam (see 22 NYCRR6000.9 [a] [former (8)]).[FN*] Following a hearing, respondent sustained the charges and, among other things, nullifiedpetitioner's exam results. Petitioner then commenced this CPLR article 78 proceeding.
We must disagree with petitioner's contention that the determination is not supported bysubstantial evidence. Substantial evidence is defined as "such relevant proof as a reasonable mindmay accept as adequate to support a conclusion or ultimate fact" (Matter of Berenhaus vWard, [*2]70 NY2d 436, 443 [1987] [internal quotationmarks and citation omitted]; see 300 Gramatan Ave. Assoc. v State Div. of HumanRights, 45 NY2d 176, 179 [1978]; Matter of Goldsmith v DeBuono, 245 AD2d 627,628 [1997]). Here, a proctor testified that she observed petitioner repeatedly craning her neck tolook at the exam of the candidate seated next to her during the multiple choice session on thefirst day of the exam. The same proctor and her three supervisors all testified that they observedpetitioner doing the same thing on the second day. Respondent also offered expert proof of strongstatistical evidence that petitioner succeeded in copying answers from the other candidate.Although petitioner denied copying and presented her own expert proof challenging the statisticalevidence against her, the resolution of conflicting evidence and determination of the witnesses'credibility are within the sole province of respondent and will not be disturbed (see Matter of Rogers v Sherburne-EarlvilleCent. School Dist., 17 AD3d 823, 824 [2005]; Matter of Mirrer v Hevesi, 4 AD3d 722, 723-724 [2004];Doolittle v McMahon, 245 AD2d 736, 738 [1997]).
Petitioner's claim that she was denied due process because she was not provided with theaddress of the other candidate and the data underlying the report of respondent's expert areunpreserved for our review as petitioner did not seek a ruling at the hearing on either issue (see Matter of Moro v Mills, 70 AD3d1269, 1269-1270 [2010]; Matter ofJohnson v Department of Correctional Servs., 53 AD3d 746, 747 [2008]; Matter of Brennan v New York State &Local Empls. Retirement Sys., 50 AD3d 1374, 1377 [2008]).
Spain, J.P., Kavanagh, Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: The regulations were amendedin October 2010 and subdivision (8) was renumbered to subdivision (9).