| Matter of Hildreth v New York State Dept. of Motor Vehs. AppealsBd. |
| 2011 NY Slip Op 03066 [83 AD3d 838] |
| April 12, 2011 |
| Appellate Division, Second Department |
| In the Matter of Wilbur Hildreth, Petitioner, v New YorkState Department of Motor Vehicles Appeals Board et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek andSudarsana Srinivasan of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent NewYork State Department of Motor Vehicles Appeals Board dated September 29, 2009, whichaffirmed a decision of an Administrative Law Judge dated January 9, 2009, following a hearing,to revoke the petitioner's driver's license pursuant to Vehicle and Traffic Law § 1194 forrefusal to submit to a chemical blood-alcohol test.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
On May 24, 2008, the petitioner was arraigned on charges of refusal to submit to a chemicalblood-alcohol test (see Vehicle and Traffic Law § 1194 [2]) following his arrest onsuspicion of driving while intoxicated. Pursuant to Vehicle and Traffic Law § 1194 (2) (b)(3), the petitioner's driver's license was suspended pending a revocation hearing; however, thenext day, the New York State Department of Motor Vehicles (hereinafter the DMV) stayed thesuspension until the hearing date. On January 9, 2009, after a hearing, an Administrative LawJudge (hereinafter the ALJ) found that the statutory conditions mandating administrativerevocation of the petitioner's license were met (see Vehicle and Traffic Law § 1194[2] [c]), and revoked the petitioner's driving privileges for a period of one year. The petitionerappealed to the DMV's Appeals Board, and the revocation of his license was again stayedpending the determination. The Appeals Board upheld the ALJ's decision. Thereafter, thepetitioner commenced this CPLR article 78 proceeding to review the determination revoking thelicense. We deny the petition and dismiss the proceeding.
" 'In order to annul an administrative determination made after a hearing, a court mustconclude that the record lacks substantial evidence to support the determination' " (Matter of Ammann v Odestick, 73AD3d 915, 915 [2010], quoting Matter of Ward v Juettner, 63 AD3d 748, 748 [2009]; seeMatter of Kelly v Safir, 96 NY2d 32, 38 [2001]). Substantial evidence is "such relevantproof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact"(300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). "'The courts may not weigh the evidence or reject the [*2]choicemade by [an administrative agency] where the evidence is conflicting and room for choice exists'" (Matter of Berenhaus v Ward, 70 NY2d 436, 444 [1987], quoting Matter of StorkRest. v Boland, 282 NY 256, 267 [1940]; see Matter of Scara-Mix, Inc. v Martinez,305 AD2d 418 [2003]).
Here, the petitioner argues that the ALJ's finding that the arresting officer had reasonablegrounds to believe that the petitioner was driving in violation of Vehicle and Traffic Law §1192 is unsupported by the record, asserting that there was no proof that he was driving on a"public highway" or in a "parking lot" within the purview of the statute (Vehicle and Traffic Law§ 1192 [7]). Contrary to the petitioner's contention, the record does contain such evidence.The arresting officer testified at the hearing that he observed the petitioner pull into a parking lot.Under the circumstances, it was reasonable to infer that prior to pulling into the parking lot, thepetitioner had been driving on the public roadway. Accordingly, the officer's testimony wassufficient to sustain the ALJ's determination (see Matter of Craig v Swarts, 68 AD3d 1407, 1409 [2009];Matter of Pernick v New York State Dept. of Motor Vehs., 217 AD2d 630 [1995];Matter of Miranda v Adduci, 172 AD2d 526 [1991]).
We also reject the petitioner's claim that the proceeding should have been dismissed forfailure to hold a hearing within a reasonable time as required under the State AdministrativeProcedure Act § 301 or within six months from the date the DMV received notice of hischemical test refusal as required under 15 NYCRR 127.2 (b) (2). Time limitations imposed onadministrative agencies by their own regulations are not mandatory (see Matter of Dickinson v Daines, 15NY3d 571, 575 [2010]). Absent a showing of substantial prejudice, a petitioner is notentitled to relief for an agency's noncompliance (id. at 577). Accordingly, a petitionermust demonstrate substantial prejudice in order to challenge a delayed chemical test refusalhearing under section 301 (1) of the State Administrative Procedure Act (see Matter of Gearyv Commissioner of Motor Vehs. of State of N.Y., 92 AD2d 38, 40 [1983], affd 59NY2d 950 [1983]; Matter of Pitta v Commissioner of Motor Vehs. of State of N.Y., 121AD2d 545 [1986]; Matter of Correale v Passidomo, 120 AD2d 525 [1986]). As thepetitioner retained his driving privileges while awaiting the hearing, he was not prejudiced by thedelay (see Matter of Geary v Commissioner of Motor Vehs. of State of N.Y., 92 AD2d at40; Matter of Pitta v Commissioner of Motor Vehs. of State of N.Y., 121 AD2d at 545;Matter of Mullen v New York State Dept. of Motor Vehs., 144 AD2d 886, 888 [1988]).
Unlike the constitutional right to confrontation in criminal matters, parties in administrativeproceedings have only a limited right to cross-examine adverse witnesses as a matter of dueprocess (see Matter of Gordon v Brown, 84 NY2d 574, 578 [1994]; Matter of Sookhu v Commissioner ofHealth of State of N.Y., 31 AD3d 1012, 1014 [2006]). The ALJ providently exercisedher discretion in limiting the petitioner's cross examination of the arresting officer on questionsthat he had previously answered or were irrelevant to the proceeding (see Matter of Friedel vBoard of Regents of Univ. of State of N.Y., 296 NY 347, 352-353 [1947]; Matter of Yoonessi v State Bd. forProfessional Med. Conduct, 2 AD3d 1070, 1072 [2003]).
The petitioner's remaining contention is without merit. Rivera, J.P., Dickerson, Lott andCohen, JJ., concur.