| Matter of Moro v Mills |
| 2010 NY Slip Op 01558 [70 AD3d 1269] |
| February 25, 2010 |
| Appellate Division, Third Department |
| In the Matter of Stephen A. Moro, Petitioner, v Richard P. Mills, asCommissioner of Education of the State of New York, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondent.
Garry, 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 whichrevoked petitioner's teaching certificate.
Petitioner held permanent New York State certification as a music teacher for grades 7through 12. In February 2005, the superintendent of the district where he was employed on aprobationary basis as a teacher of band and marching band advised the Department of Educationthat petitioner had been arrested and charged with endangering the welfare of a child.[FN*]The Department conducted an investigation and determined that, in December 2004, petitionerhad allegedly committed an act of sexual misconduct in the presence of a 14-year-old student towhom he was giving a music lesson. Respondent issued a notice of substantial question of moralcharacter and designated a Hearing Officer, who recommended the revocation of petitioner'steaching certificate following a hearing. Upon appeal, respondent affirmed the recommendation[*2]and revoked the certificate. Petitioner commenced this CPLRarticle 78 proceeding challenging the determination, and Supreme Court transferred theproceeding to this Court.
Petitioner's threshold argument that respondent lacked jurisdiction to determine the appealon the ground that he was also the party who commenced the initial administrative proceedingsis unpreserved, as it was not raised at the administrative level; thus we may not address it(see Matter of Khan v New York State Dept. of Health, 96 NY2d 879, 880 [2001];Matter of World Buddhist Ch'An Jing Ctr., Inc. v Schoeberl, 45 AD3d 947, 951 [2007]).
As to petitioner's substantive claim, we find that the challenged determination is supportedby substantial evidence, that is, proof " 'so substantial that from it an inference of the existence ofthe fact found may be drawn reasonably' " (Matter of Welcher v Sobol, 227 AD2d 770,772 [1996], quoting 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d176, 179 [1978]). In making this evaluation, we " 'may not weigh the evidence and substitute[our] own judgment even in light of conflicting testimony' " (Matter of Rogers vSherburne-Earlville Cent. School Dist., 17 AD3d 823, 824 [2005], quoting Matter ofMalloch v Ballston Spa Cent. School Dist., 249 AD2d 797, 798 [1998], lv denied 92NY2d 810 [1998]). The Hearing Officer's determination was based on the testimony of thestudent, who gave a detailed description of the incident at issue, as well as that of the districtsuperintendent, several other teachers, the investigating police officer, and petitioner, amongothers. The Hearing Officer concluded that the student's testimony was credible, finding that hertestimony was supported by the evidence and by other witnesses, and that petitioner's conflictingtestimony was inconsistent and controverted by the other testimony. This determination wasfully within the Hearing Officer's exclusive province (see Matter of Rogers vSherburne-Earlville Cent. School Dist., 17 AD3d at 824; Matter of Brown v SaranacLake Cent. School Dist., 273 AD2d 785, 786 [2000]). Though the student was the soleeyewitness to the underlying incident, no corroboration was required for her testimony (seeMatter of Welcher v Sobol, 227 AD2d at 772).
Petitioner's challenges to the Hearing Officer's evidentiary rulings lack merit. Theinvestigating police officer was properly permitted to testify regarding certain statements madeby petitioner that were ruled inadmissible at his criminal trial. The exclusionary rule is applied inadministrative proceedings by balancing the deterrent effect of exclusion against its detrimentalimpact on the process of determining the truth. Relevant evidence is not excluded when little orno deterrent benefit will result (see Matter of Boyd v Constantine, 81 NY2d 189, 195[1993]; Matter of Stedronsky v Sobol, 175 AD2d 373, 375 [1991], lv denied 78NY2d 864 [1991]). The testimony in question was clearly relevant to the determination ofpetitioner's moral fitness to teach school children, and petitioner identified no deterrent benefitlikely to result from its exclusion (see generally Matter of Stedronsky v Sobol, 175AD2d at 374-375). Petitioner's further evidentiary objections, to the extent that they werepreserved for our review, are unavailing. The Hearing Officer was not required to followtraditional rules of evidence (see Education Law § 3020-a [3] [c]; Matter ofSoucy v Board of Educ. of N. Colonie Cent. School Dist., 51 AD2d 628, 629 [1976]), andno violation of the "fundamentals of a fair hearing" was shown (Matter of Rudner v Board ofRegents of N.Y. State Dept. of Educ., 105 AD2d 555, 556 [1984]).
Petitioner did not establish bias based upon the adverse evidentiary rulings and unfavorableultimate determination. The mere allegation of bias is not enough to disturb an administrativedetermination (see Matter of Chatelain v New York State Dept. of Health, 48 AD3d 943,944-945 [2008]). Nothing in the record constitutes the requisite "factual [*3]demonstration supporting a claim of bias or that the ultimatedetermination resulted from that bias" (Matter of Kole v New York State Educ. Dept.,291 AD2d 683, 686 [2002]).
Finally, we do not find that the penalty imposed was inappropriate. Revocation ofpetitioner's teaching certificate is not shocking, excessive, or incommensurate with his offense ofinappropriate sexual conduct in the presence of a young female student whom he was engaged inteaching (see Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d at824-825; Matter of Stedronsky v Sobol, 175 AD2d at 375; contrast Matter of Harrisv Mechanicville Cent. School Dist., 45 NY2d 279, 284-285 [1978]).
Cardona, P.J., Peters, Spain and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Petitioner was acquitted of thischarge following trial.