| Matter of Yezek v State of N.Y. Dept. of Motor Vehs. AppealsBd. |
| 2009 NY Slip Op 04253 [62 AD3d 1017] |
| May 26, 2009 |
| Appellate Division, Second Department |
| In the Matter of Charles J. Yezek, Jr., Petitioner, v State ofNew York Department of Motor Vehicles Appeals Board et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Peter Karanjia and Patrick J. Walshof counsel), for respondents.
Proceeding pursuant to CPLR article 78 to review a determination of the State of New YorkDepartment of Motor Vehicles Appeals Board dated June 20, 2007, which confirmed the findingof an Administrative Law Judge dated June 22, 2006, that the petitioner violated Vehicle andTraffic Law § 1180 (b), upon the petitioner's plea of guilty, imposed a penalty, and deniedhis application to vacate his plea of guilty, or in the alternative, to issue him a restricted-uselicense.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
On June 22, 2006, the petitioner appeared before an Administrative Law Judge and pleadedguilty to speeding in violation of Vehicle and Traffic Law § 1180 (b). The petitionerthereafter requested that he be permitted to withdraw his plea on the ground that he had not beenadvised that his driver's license could be revoked as a result of the plea or, in the alternative, thathe be issued a restricted-use license. The petitioner commenced this proceeding after his requestwas denied.
The Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804(g) since the determination to be reviewed was not made after a hearing held pursuant todirection of law at which evidence was taken (see CPLR 7803 [4]; Matter of Sasso vOsgood, 86 NY2d 374, 384 n 2 [1995]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 769[2005]; Matter of Milt-Nik Land Corp.v City of Yonkers, 24 AD3d 446, 447 [2005]). Nevertheless, in the interest of judicialeconomy, we will decide the case on the merits (see Matter of Silvera v Town of Amenia Zoning Bd. of Appeals, 33AD3d 706, 707-708 [2006]; Matter of Halperin v City of New Rochelle, 24 AD3d at772-773; Matter of Milt-Nik Land Corp. v City of Yonkers, 24 AD3d at 447; Matterof Country Glen Assoc. v Newburger, 305 AD2d 594, 595 [2003]).
Contrary to the petitioner's contention, he was advised at the time of his plea that he would[*2]be notified of a six-month revocation of his license. Since therecord indicates that the petitioner's plea was otherwise made knowingly, voluntarily, andintelligently (see People v Hill, 9NY3d 189 [2007], cert denied 553 US —, 128 S Ct 2430 [2008]); Peoplev Lopez, 71 NY2d 662 [1988]), the denial of the petitioner's request to withdraw his pleawas not arbitrary and capricious or an abuse of discretion. Similarly, in light of the petitioner'sdriving record, the State of New York Department of Motor Vehicles Appeals Board actedproperly and within its discretion in denying the petitioner's request for a restricted use license(see Vehicle and Traffic Law § 530; 15 NYCRR 135.7). The determination,therefore, must be confirmed (see Matter of Pell v Board of Educ. of Union Free School Dist.No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231[1974]). Spolzino, J.P., Fisher, Miller and Balkin, JJ., concur.