| Matter of Shearer v Fiala |
| 2015 NY Slip Op 00051 [124 AD3d 1291] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of Jeffrey A. Shearer, Appellant, vBarbara J. Fiala, Commissioner, New York State Department of Motor Vehicles,Respondent. |
Arthur J. Rumizen, Williamsville, for petitioner-appellant.
Eric T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of counsel), forrespondent-respondent.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County(Diane Y. Devlin, J.), entered March 19, 2014 in a proceeding pursuant to CPLR article78. The judgment denied the petition.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Petitioner's New York State driver's license was revoked in June2011, as part of the sentence imposed upon his conviction of driving while intoxicatedunder Vehicle and Traffic Law § 1192. In February 2013, he applied forrelicensing pursuant to Vehicle and Traffic Law § 510 (5), and he appealsfrom a judgment denying his CPLR article 78 petition seeking to annul respondent'sdenial of that application.
Petitioner contends that the 25-year look-back period set forth in 15 NYCRR part136 is unenforceable and that respondent therefore erred in applying it to his application.Specifically, petitioner contends that the look-back period is legislative in nature and isinconsistent with the Vehicle and Traffic Law, which contains look-back periods of 10years or less. Thus, petitioner contends that he is entitled to be relicensed immediately.We reject those contentions.
We conclude that 15 NYCRR 136.5 is not legislative in nature, inasmuch as theLegislature delegated its authority to administer the relicensing process to theCommissioner of the Department of Motor Vehicles (see Vehicle and TrafficLaw §§ 215 [a]; 510 [5], [6]; see generally Boreali v Axelrod,71 NY2d 1, 8-11 [1987]). Therefore, in promulgating 15 NYCRR part 136, theCommissioner has not "act[ed] inconsistently with the Legislature, or usurp[ed] itsprerogatives" (Clark v Cuomo, 66 NY2d 185, 189 [1985]).
We further conclude that 15 NYCRR 136.5 is not in conflict with any look-backperiod in the Vehicle and Traffic Law (see Matter of Acevedo v New York StateDept. of Motor Vehs., 2014 NY Slip Op 30422[U], *13 [2014]; see generallyMatter of Hauptman v New York State Dept. of Motor Vehs., 158 AD2d 600, 601[1990], appeal dismissed 75 NY2d 1004 [1990], lv denied 76 NY2d 706[1990]). Indeed, the look-back periods in the Vehicle and Traffic Law to whichpetitioner refers do not control here, inasmuch as they are inapplicable, set only minimumrevocation periods, or concern the enhancement of criminal charges and punishments(see Acevedo, 2014 NY Slip Op 30422[U], *13; see generally Matter ofBarnes v Tofany, 27 NY2d 74, 75-79 [1970]).
Petitioner further contends that, even if 15 NYCRR part 136 applies, he cannot beconsidered a "persistently dangerous driver" under the 25-year look-back period becausehis prior offenses were not sufficiently egregious. We reject that contention. Theregulation states in [*2]relevant part that theCommissioner "shall" deny a request for relicensing where, within the 25-year look-backperiod, "the person has three or four alcohol- . . . related driving convictions. . . in any combination . . . and, in addition, has one or moreserious driving offenses" (15 NYCRR 136.5 [b] [2]). Here, within the 25 years precedingpetitioner's most recent revocable offense (see 15 NYCRR 136.5 [a] [4]), i.e.,driving while intoxicated, petitioner has two other alcohol-related driving convictions,i.e., driving while intoxicated and driving while ability impaired, both under Vehicle andTraffic Law § 1192 (see 15 NYCRR 136.5 [a] [1] [i]). Furthermore,respondent properly concluded that petitioner committed a serious driving offense withinthe meaning of the regulation because the regulation defines a serious driving offense asoccurring where a driver has accumulated "20 or more points from any violations" (15NYCRR 136.5 [a] [2] [iv]), and petitioner had accumulated 21 points from other trafficviolations. Respondent was therefore required to deny petitioner's application forrelicensing. Present—Smith, J.P., Centra, Fahey, Lindley and Whalen, JJ.