Allrich v. Regents Review Comm. Office of Legal Servs.

• Decision Date: 02 January 2020
• Docket Number: 525951
• Citation: 179 A.D.3d 1156,116 N.Y.S.3d 775
• Parties: In the Matter of Jocelyne ALLRICH, Petitioner, v. REGENTS REVIEW COMMITTEE OFFICE OF LEGAL SERVICES et al., Respondents.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 1156
116 N.Y.S.3d 775

In the Matter of Jocelyne ALLRICH, Petitioner,
v.
REGENTS REVIEW COMMITTEE OFFICE OF LEGAL SERVICES et al., Respondents.

525951

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 21, 2019
Decided and Entered: January 2, 2020

116 N.Y.S.3d 776

Zisholtz & Zisholtz, LLP, Mineola (William Mastrogiannis of counsel), for petitioner.

Letitia James, Attorney General, New York City (James M. Hershler of counsel), for respondents.

Before: Garry, P.J., Egan Jr., Lynch and Devine, JJ.

MEMORANDUM AND JUDGMENT

Egan Jr., J.

179 A.D.3d 1157

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Education Law § 6510[5] ) to review a determination of the Board of Regents, among other things, revoking petitioner's license to practice as a licensed practical nurse.

In February 2014, petitioner, a licensed practical nurse, was convicted of one count

116 N.Y.S.3d 777

of scheme to defraud in the first degree and six counts of grand larceny in the third degree based upon her involvement in the operation of an unlicensed nursing school within the state. She was sentenced to a prison term of 1 to 4 years for her conviction of scheme to defraud and concurrent terms of 2 to 7 years for each conviction of grand larceny in the third degree.¹ In June 2015, the Office of Professional Discipline of respondent State Education Department initiated a disciplinary proceeding against petitioner based upon her criminal convictions (see Education Law § 6509[5][a][i] ). Following a July 2017 hearing, the Regents Review Committee (hereinafter the Committee) issued a report finding her guilty of misconduct and recommended the revocation of her nursing license and the issuance of a $10,000 fine. Upon review, the Board of Regents (hereinafter the Board) adopted the Committee's findings of fact, determination of guilt and penalty recommendation. Petitioner thereafter commenced this proceeding in this Court challenging the Board's determination.²

Petitioner contends that revocation of her license was not appropriate under the circumstances. We disagree. The imposition of an administrative penalty in a disciplinary proceeding pursuant to the Education Law "rests within the discretion of the reviewing agency and will not be disturbed unless it is so disproportionate to the offense as to shock one's sense of fairness" ( Matter of Genco v. Mills, 28 A.D.3d 966, 967, 813 N.Y.S.2d 270 [2006] ; see Matter of Epelboym v. Board of Regents of the State of N.Y., 174 A.D.3d 1182, 1183, 107 N.Y.S.3d 172 [2019] ; Matter of Weeks v. State Educ. Department/Univ. of the State of N.Y., 113 A.D.3d 944, 945, 978 N.Y.S.2d 464 [2014] ). Petitioner contends that the revocation of her license was "an unconscionable enhancement of sentence" inasmuch as she has already served a 2½-year prison sentence, one year of probation and been terminated from Medicaid as a result of her underlying criminal convictions. Moreover, she avers that nursing was her only form of employment and, at the time she committed the underlying crimes, she was not acting in her capacity as a licensed practical nurse. Even assuming that the

179 A.D.3d 1158

operation of a fraudulent nursing school constituted misconduct separate and distinct from petitioner's duties as a licensed practical nurse, the imposition of a penalty following a finding of professional misconduct "need not be [directly] related to the practice of one's profession" ( Matter of Gordon v. Commissioner of Educ., 144...