| Matter of Mannino v Department of Motor Vehs. of State ofN.Y.—Traffic Violations Div. |
| 2012 NY Slip Op 08529 [101 AD3d 880] |
| December 12, 2012 |
| Appellate Division, Second Department |
| In the Matter of Philip M. Mannino,Petitioner, v Department of Motor Vehicles of State of New York—TrafficViolations Division, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Behlolavek, DavidLawrence III, and Richard Dearing of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of the AdministrativeAppeals Board of the New York State Department of Motor Vehicles dated November 30, 2010,confirming a determination of an Administrative Law Judge dated August 12, 2010, which, aftera hearing, found that the petitioner had refused to submit to a chemical test in violation ofVehicle and Traffic Law § 1194, and revoked his driver's license.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding isdismissed on the merits, with costs.
To annul an administrative determination made after a hearing directed by law at whichevidence is taken, a court must conclude that the record lacks substantial evidence to support thedetermination (see Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]; Matter of Pell vBoard of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,Westchester County, 34 NY2d 222, 231 [1974]; Matter of Hildreth v New York State Dept. of Motor Vehs. AppealsBd., 83 AD3d 838, 839 [2011]). Substantial evidence is "such relevant proof as areasonable mind may accept as adequate to support a conclusion or ultimate fact" (300Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]; seeMatter of Hildreth v New York State Dept. of Motor Vehs. Appeals Bd., 83 AD3d at 839). "'The courts may not weigh the evidence or reject the choice made by [an administrative agency]where the evidence is conflicting and room for choice exists' " (Matter of Berenhaus vWard, 70 NY2d 436, 444 [1987], quoting Matter of Stork Rest. v Boland, 282 NY256, 267 [1940]; see Matter of Hildreth v New York State Dept. of Motor Vehs. AppealsBd., 83 AD3d at 839).
A review of the record demonstrates that the findings of the Administrative Law Judge aresupported by substantial evidence (see Matter of Pell v Board of Educ. of Union Free SchoolDist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d at231-[*2]232). The evidence adduced at the hearing demonstratedthat the police officer who arrested the petitioner in a parking lot after the petitioner's motorvehicle was involved in an accident had reasonable grounds to believe that the petitioner hadbeen driving in violation of Vehicle and Traffic Law § 1192 and that the officer lawfullyarrested the petitioner (see Vehicle and Traffic Law § 1194 [2] [c]; Matter of Robinson v Swarts, 82 AD3d986 [2011]; Matter of Sharf v NewYork State Dept. of Motor Vehicles, 74 AD3d 978 [2010]; Matter of Eyrich vJackson, 267 AD2d 237 [1999]; Matter of Leavy v Commissioner of Motor Vehs. ofState of N.Y., 141 AD2d 643 [1988]). The only testimony presented at the administrativehearing was that of the police officer, who arrested the petitioner for a violation of Vehicle andTraffic Law § 1192 (3). The officer testified that, although he did not witness the accidentor the petitioner in his motor vehicle when the officer arrived on the scene, he was told bywitnesses, softball players who were present in the parking lot but were not identified in thepolice accident report, that the petitioner had been driving his vehicle when the accidentoccurred. Contrary to the petitioner's contentions, "[h]earsay evidence can be the basis of anadministrative determination" (Matter of Gray v Adduci, 73 NY2d 741, 742 [1988];see Matter of Andresen v State of N.Y. Dept. of Motor Vehs., 227 AD2d 617, 618[1996]; Matter of Butler v Nassau County Civ. Serv. Commn., 175 AD2d 159, 161[1991]). Further, the officer testified that, at the accident scene, the petitioner admitted that hewas the driver of the vehicle (see Matter of Zwack v Passidomo, 108 AD2d 1009 [1985];Matter of Randall v Passidomo, 101 AD2d 670 [1984]). The petitioner did not testify thathe did not make such an admission to the officer (see 15 NYCRR 127.5 [b]; Matter ofNorthland Transp. v Jackson, 271 AD2d 846, 848 [2000]).
Moreover, in appealing from the Administrative Law Judge's determination, the petitionerdid not contest that there was substantial evidence to support the Administrative Law Judge'sfindings that the police officer gave the petitioner sufficient warning of the consequences ofrefusing to submit to a chemical test, and that the petitioner refused to submit to the chemical test(see Vehicle and Traffic Law § 1194 [2] [c]; Matter of Robinson v Swarts, 82 AD3d 986 [2011]; Matter of Sharf v New York State Dept. ofMotor Vehicles, 74 AD3d 978 [2010]; Matter of Eyrich v Jackson, 267 AD2d237 [1999]; Matter of Leavy v Commissioner of Motor Vehs. of State of N.Y., 141AD2d 643 [1988]).
The petitioner's remaining contention is not properly before this Court, as it was not raised inthe administrative hearing (see Matter of Gonzalez v State Liq. Auth., 30 NY2d 108, 112[1972]; Matter of Sharf v New YorkState Dept. of Motor Vehicles, 74 AD3d 978 [2010]; Matter of Myles v Doar, 24 AD3d677, 678 [2005]; Matter of Ambery v Board of Trustees of N.Y. City Fire Dept., Art. I-BPension Fund, 298 AD2d 582 [2002]). Angiolillo, J.P., Austin, Sgroi and Miller, JJ., concur.