| Matter of Chatelain v New York State Dept. of Health |
| 2008 NY Slip Op 01477 [48 AD3d 943] |
| February 21, 2008 |
| Appellate Division, Third Department |
| In the Matter of Rony Chatelain, Petitioner, v New York StateDepartment of Health et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Scott J. Spiegelman of counsel), forrespondents.
Kavanagh, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant toPublic Health Law § 230-c [5]) to review a determination of the Administrative ReviewBoard for Professional Medical Conduct which revoked petitioner's license to practice medicineas a physician assistant in New York.
Petitioner, a licensed physician assistant, was charged with violating Education Law §6530 (9) (a) (i) by having been convicted of crimes under New York law. Specifically, petitionerwas convicted on September 15, 2005 by a plea of guilty to the crime of driving whileintoxicated, a felony, and aggravated unlicensed operation of a motor vehicle, a misdemeanor. Alittle more than a month later, on October 27, 2005, petitioner was again convicted of operating amotor vehicle under the influence of alcohol, a felony. Following an administrative hearing atwhich petitioner did not contest the charges brought against him, a Hearing Committee of theState Board for Professional Conduct found petitioner guilty of professional misconduct andimposed a three-year suspension of his physician assistant license, with all but the first sixmonths of said suspension stayed, and placed petitioner on probation for five years. The Bureauof Professional Medical Conduct appealed that sanction and, upon review, the Administrative[*2]Review Board for Professional Medical Conduct (hereinafterARB) ordered that petitioner's license be revoked. Petitioner commenced this proceedingpursuant to CPLR article 78 seeking to annul that determination.
It is well within the ARB's powers to impose a harsher penalty than that imposed by theHearing Committee (see Matter of Chenv Administrative Review Bd. of State Bd. for Professional Med. Conduct, 3 AD3d 617,617 [2004]; Matter of Kite v DeBuono, 233 AD2d 783, 786 [1996]), and such penaltywill not be disturbed upon review unless it "is so incommensurate with the offense as to shockone's sense of fairness" (Matter of Jean-Baptiste v Sobol, 209 AD2d 823, 825 [1994]; see Matter of Abraham v Novello, 39AD3d 1039, 1040 [2007]; Matter of Wahba v New York State Dept. of Health, 277AD2d 634, 636 [2000]; Matter of Wolfson v DeBuono, 256 AD2d 939, 939 [1998]).Petitioner has a significant history that covers a period of 10 years where he has admittedengaging in alcohol related criminal conduct. Specifically, he stands convicted on three separateoccasions of driving while intoxicated, two of which were for felonies; he has also pleaded guiltyto driving while his ability was impaired by the consumption of alcohol, a violation, andoperating his motor vehicle in an intoxicated condition knowing that his operator's license hadbeen suspended. Moreover, his most recent convictions both involve felonies and involveconduct which occurred only weeks apart. In addition, petitioner has admitted to consumingalcohol in the morning, prior to leaving for work, and has not, based on the records submitted,fully cooperated in rehabilitative programs designed to address his problem with alcohol abuse.This history provides ample support for the ARB's conclusion that petitioner is unfit to practiceas a physician assistant and that his license should be revoked.
We also reject petitioner's claim that the ARB should not have considered as evidence astatement attributed to him in a presentence report because the author of the report was not calledas a witness at the hearing. Given petitioner's own admission at the hearing that he made thestatement in question, coupled with the fact that he could have subpoenaed the probation officerto testify at the hearing (see Public Health Law § 230 [10] [c]; StateAdministrative Procedure Act § 304 [2]), his claim that he was denied due process isunavailing.
Finally, there is no credible support in the record for petitioner's claim that the decision torevoke his license was unduly harsh or race-based. "Merely alleging bias is not sufficient to setaside an administrative determination. Rather, the party alleging bias must set forth a factualdemonstration supporting the allegation as well as prove that the administrative outcome flowedfrom it" (Matter of Sunnen v Administrative Rev. Bd. for Professional Med. Conduct,244 AD2d 790, 791 [1997], lv denied 92 NY2d 802 [1998] [citations omitted]; see Matter of Yoonessi v State Bd. forProfessional Med. Conduct, 2 AD3d 1070, 1071 [2003], lv denied 3 NY3d 607[2004]). Petitioner fails to provide any factual support for his claim that the decision to revokehis license was imposed by the ARB because of his racial background or nationality. Simplybecause petitioner received a penalty more severe than that imposed in other disciplinaryproceedings is, by itself, an insufficient basis upon which to establish bias. In any event,"penalties imposed in other cases are irrelevant because each case must be judged on its ownpeculiar facts and circumstances" (Matter of Bezar v DeBuono, 240 AD2d 978, 979[1997]). Therefore, we decline to disturb the ARB's determination.
Petitioner's remaining claims have been considered and found to be without merit.
Cardona, P.J., Carpinello, Lahtinen and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.