| Matter of Hickey v New York State Dept. of MotorVehs. |
| 2016 NY Slip Op 05862 [142 AD3d 668] |
| August 24, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Jane Hickey, Petitioner, v NewYork State Department of Motor Vehicles, Respondent. |
Edelstein & Grossman, New York, NY (Jonathan I. Edelstein of counsel), forpetitioner.
Eric T. Schneiderman, Attorney General, New York, NY (Michael S. Belohlavekand Eric Del Pozo of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of the New YorkState Department of Motor Vehicles Administrative Appeals Board dated December 30,2014, affirming a determination of an administrative law judge dated January 22, 2014,which, after a hearing, found that the petitioner had refused to submit to a chemical testin violation of Vehicle and Traffic Law § 1194, and revoked her driverlicense.
Adjudged that the determination is confirmed, the petition is denied, and theproceeding is dismissed on the merits, with costs.
Contrary to the petitioner's contention, the New York State Department of MotorVehicles Administrative Appeals Board properly refused to consider the petitioner'shospital records since they were not submitted to or considered by the administrative lawjudge at the hearing (see 15 NYCRR 155.4; Matter of Tornheim v Appeals Bd. of N.Y. State Dept. of MotorVehs., 82 AD3d 1253 [2011]). Moreover, the petitioner failed to show that therecords were newly discovered evidence unavailable at the time of the hearing, and couldnot have been obtained in the exercise of due diligence (see Matter of Morrissey vSobol, 176 AD2d 1147 [1991]). Despite her awareness of these records prior to thehearing, the petitioner neither sought an adjournment of the hearing for the purpose ofobtaining them (see 15 NYCRR 127.7), nor attempted to subpoena those records(see 15 NYCRR 127.11 [b]; CPLR 2302).
The findings of the administrative law judge are supported by substantial evidence inthe record (see Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]; Matter of Pellv Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale &Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; Matter of Mannino v Departmentof Motor Vehs. of State of N.Y.—Traffic Violations Div., 101 AD3d 880[2012]; Matter of Hildreth vNew York State Dept. of Motor Vehs. Appeals Bd., 83 AD3d 838, 839 [2011]).The evidence adduced at the hearing, including the testimony of two police officers andtheir written report, demonstrated that the police had reasonable grounds to believe thatthe petitioner had been driving in violation of Vehicle and Traffic Law§ 1192, that the police lawfully arrested the petitioner, that after thepetitioner's arrest and at the hospital the police gave the petitioner sufficient warning ofthe consequences of refusing to submit to a chemical test, and that the petitioner refused[*2]the officer's request to submit to the chemical testthree times (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. of Motor Vehicles, 74AD3d 978 [2010]). Moreover, the Appeals Board properly relied upon an adverseinference from the petitioner's failure to testify at the hearing (see 15 NYCRR127.5 [b]; Matter of Peeso vFiala, 130 AD3d 1442, 1443 [2015]; Matter of Mannino v Department ofMotor Vehs. of State of N.Y.—Traffic Violations Div., 101 AD3d at881).
Contrary to the petitioner's contention, the fact that a chemical test was eventuallyperformed at the hospital does not "suffice to undo" her prior chemical test refusal(see Matter of Nicol v Grant, 117 AD2d 940, 941 [1986]; Matter of O'Brien vMelton, 61 AD2d 1091 [1978]). We also reject the petitioner's contention that her"altered state" rendered her incapable of a chemical test refusal. Vehicle and Traffic Law§ 1194 (2) does not require a knowing refusal by the petitioner. Thepetitioner's interpretation of the statute "would lead to the absurd result that the greaterthe degree of intoxication of an automobile driver, the less the degree of his [or her]accountability" (Matter of Carey v Melton, 64 AD2d 983, 983 [1978]; seePeople v Kates, 53 NY2d 591, 596 [1981]). Mastro, J.P., Hall, Sgroi and Barros, JJ.,concur.