| Matter of Laterza v New York State Racing & Wagering Bd. |
| 2009 NY Slip Op 09585 [68 AD3d 1509] |
| December 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Dennis J. Laterza, Petitioner, v New YorkState Racing & Wagering Board, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold of counsel), forrespondent.
Spain, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Sullivan County) to review a determination of respondent, which,among other things, suspended petitioner's occupational license for five years.
Petitioner, licensed by respondent to own and train race horses since 1973, was the trainer ofrecord for a horse named "Lemon Pepper," which competed in the ninth race at YonkersRaceway on April 27, 2007, finishing in third place. Acting on a tip from a police informant,respondent's director of investigations requested the presiding judge at Yonkers Raceway toorder that post-race double blood and urine samples be taken from Lemon Pepper and tested forthe presence of recombinant human erythropoietin (rhEPO) or Darbepoietin-alfa (DPO)(hereinafter collectively referred to as rhEPO/DPO). These chemically engineereddrugs—which mimic the naturally produced human EPO hormone that has the ability toincrease red-blood cell production and its consequent increased oxygenation—arenot specifically permitted to be administered to horses (see 9 NYCRR 4120.2[a]-[g]). As such, the governing rules provide that they "may [not] be administered by any meanswithin one week of the scheduled post time of the race in which the horse is to compete" (9NYCRR 4120.2 [h]). Under the "trainer responsibility rule," a trainer is held strictly responsiblefor any positive drug test unless the [*2]trainer can refute bysubstantial evidence that neither the trainer nor his or her employee or agent was responsible forthe administration of the drug or restricted substance (see 9 NYCRR 4120.4; see alsoMatter of Mosher v New York State Racing & Wagering Bd., 74 NY2d 688, 689-690[1989]; Matter of Casse v New York State Racing & Wagering Bd., 70 NY2d 589,594-597 [1987]; Matter of Zito v New York State Racing & Wagering Bd., 300 AD2d805, 806 [2002], lv denied 100 NY2d 502 [2003]).
George Maylin, professor of toxicology at the New York State College of VeterinaryMedicine at Cornell University and Director of the New York State Equine Drug Testing andResearch Program, conducted an ELISA[FN1]antibody screening test on the blood sample. The test revealed that the blood sample had animmuno response to an EPO antibody, indicating that rhEPO/DPO may have been present, buthe did not have the means to confirm the actual presence of this restricted substance. To confirmthe actual presence of rhEPO/DPO, Maylin was authorized by respondent to send a separatesample to Cornelius Uboh, Bureau Director of the Pennsylvania Equine Toxicology andResearch Laboratory, for testing.[FN2]Uboh, employing a sequence of well-established scientific tests that he and his researchcolleagues had devised to recover and identify rhEPO/DPO from an equine blood sample,confirmed that the blood sample contained that substance. Based upon Uboh's confirmatory test,Maylin advised respondent of the positive result.
In October 2007, the presiding judge at Yonkers Raceway concluded that petitioner hadviolated 9 NYCRR 4120.2 (h) (administering drug, not authorized, within one week of race) and9 NYCRR 4120.4 (the trainer responsibility rule), suspended him for five years and imposed a$2,500 fine. On petitioner's administrative appeal, hearings were held at which, among others,Maylin and Uboh testified as to their blood test procedures and findings; petitioner also testified,denying ever administering rhEPO/DPO to Lemon Pepper or any knowledge of who may havedone so. The Hearing Officer issued a report recommending that petitioner had violated the citedrules, and respondent affirmed the findings and penalties. Petitioner commenced this CPLRarticle 78 proceeding in Supreme Court, which signed a stay of the suspension order andtransferred the proceeding to this Court.
We reject petitioner's primary claim in this special proceeding, that respondent erred inadmitting Uboh's report and testimony into evidence. At the hearing, petitioner objected to theadmission of Uboh's opinion, arguing that it was based upon novel scientific methods that mustbe analyzed under the Frye standard followed in New York for admissibility of scientificevidence, i.e., acceptance as reliable by the relevant scientific community (see Frye v UnitedStates, 293 F 1013 [DC Cir 1923]; see also Parker v Mobil Oil Corp., 7 NY3d 434,446-447, 447 n 3 [2006]; People v Wesley, 83 NY2d 417, 423 [1994]). Because Ubohused generally accepted scientific methodology—which generated results accepted asreliable within the scientific community—to confirm the presence of rhEPO/DPO, it isunnecessary to address the application of the Frye standard in administrative proceedingsand we decline to do so.
To greatly simplify, Uboh testified that, using commercially purchased antibodies asmagnets to attract the rhEPO/DPO and separate it from horse plasma (immuno affinityseparation), he washed off and recovered the substance itself (from the antibodies) and analyzedit using a mass spectrometer (LC-MS/MS instrument), which broke the substance down intopeptides at specific points using enzymes (tryptic digestion); he then confirmed that the peptideswere the prohibited substance using an internationally recognized database (to identify peptidesthat do not occur naturally in horses). Maylin testified that all of these techniques werescientifically accepted, that immuno affinity separation was "widely used in protein chemistry,"that tryptic digestion was a process "used for 35 years," and that the mass spectrometer was"widely used" in the study of proteins, but very expensive and rare.[FN3] Uboh testified that it was the use of this mass spectrometer instrument for this purpose that wasa first. Further, it was established at the hearing that Uboh's technique—developed afterfour years of collaborative research—had been published in a peer review scientificjournal in June 2007, shortly after this race, and further refined in an April 2008 article publishedjust before his testimony.[FN4]
Under the circumstances here, we are not persuaded that the Hearing Officer erred in rulingthat a Frye hearing was not required, given the uncontroverted expert testimony thatUboh, while the first to employ LC-MS to confirm the presence of rhEPO/DPO in horses, reliedupon tests and instruments whose reliability were well established and commonly relied upon,and which produced results accepted as reliable, in the relevant scientific community.[FN5]We also find that a proper foundation was provided establishing the reliability of the testingprocedures used [*3]by Uboh to recover the substance from theblood sample and confirm its identity (see People v Middleton, 54 NY2d 42, 45 [1981];see also People v Wesley, 83 NY2d at 435-436, 436 and n 2 [Kaye, Ch. J., concurring];cf. Guzman v 4030 Bronx Blvd. Assoc. L.L.C., 54 AD3d 42, 47-51 [2008]).
Turning to our review of the determination, we find that respondent submitted substantialevidence that the horse's blood tested positive for rhEPO/DPO. However, the record fails toestablish, as required, that it was administered within the seven-day proscribed period(see 9 NYCRR 4120.2 [h]). Indeed, Maylin was unable to independently determine,based upon the tests he performed, how recently the substance had been administered prior to therace. While Uboh testified that he had not been able—using his methodology—toconfirm the presence of this substance outside of seven days and opined to a reasonable degreeof scientific certainty that the substance had been administered within seven days of the race, histestimony did not sufficiently disclose the basis for that latter conclusion. Respondent neverelicited from Uboh how he was able to determine that rhEPO/DPO was administered within theseven days. Significantly, the record reflects that respondent retained Uboh solely to confirm thepresence of this substance and not to ascertain the timing of when it was administered. It alsoappears that Uboh was first informed at the hearing—during cross-examination—ofNew York's seven-day rule for this substance, which differs from Pennsylvania's zero tolerancerule. Uboh's report, admitted into evidence, did not offer an opinion as to the timing of when thesubstance was administered here. Questioning of Uboh at the hearing established that he had, inhis recently published research article on these testing techniques for this substance, been able todetect and possibly confirm the presence of the substance in horses more than seven daysafter its administration, depending upon the dose given and other factors. Moreover, Ubohtestified that he did not attempt to ascertain the quantity or dose of the substanceadministered here to Lemon Pepper. Thus, given that respondent failed to lay a foundation forUboh's ultimate conclusion on the timing, we find that respondent failed to adduce proof that thissubstance was administered within the requisite time frame and the determination cannot besustained.
Petitioner's remaining claims need not be addressed in light of the foregoing.
Peters, J.P., Lahtinen, Kane and Malone Jr., JJ., concur. Adjudged that the determination isannulled, without costs, and petition granted.
Footnote 1: ELISA stands forenzyme-linked immunosorbent assay.
Footnote 2: Respondent did not act inexcess of its jurisdiction by utilizing Uboh's Pennsylvania laboratory to conduct the confirmatorytests on which Maylin relied (see Racing, Pari-Mutuel Wagering and Breeding Law§ 902 [1]; 9 NYCRR 4120.1 [b]).
Footnote 3: Maylin explained that Uboh'stechniques were "generic" and should be "valid and reproducible," but his lab at Cornell did nothave the mass spectrometer required to duplicate the process.
Footnote 4: Petitioner's challenges to thereliability of Uboh's testing techniques did not undermine the admissibility of the evidence but,instead, went to the weight to be accorded such evidence and created factual and credibilityissues for the Hearing Officer to resolve (see Matter of Case v New York State Racing &Wagering Bd., 61 AD3d 1313, 1314 [2009], lv denied 13 NY3d 705 [2009]; seealso Jackson v Nutmeg Tech., Inc., 43 AD3d 599, 601-602 [2007]). Likewise, petitioner'sdenials, at most, created a credibility issue (see Matter of Sachs v New York State Racing &Wagering Bd., Div. of Harness Racing, 1 AD3d 768, 772 [2003], lv denied 2 NY3d706 [2004]).
Footnote 5: Petitioner's due process claim isalso meritless (see 9 NYCRR 5402.5; see also Casse v New York State Racing &Wagering Bd., 70 NY2d at 593-594), and the fact that there was no other known laboratorycapable of conducting a duplicate confirmatory test on the sample did not operate to deprive himof due process of law (see Matter of DeVaux v New York State Racing & Wagering Bd.,158 AD2d 892, 893 [1990], appeal dismissed 76 NY2d 772 [1990]).