Asman v. Ambach

• Citation: 471 N.Y.S.2d 336,98 A.D.2d 847
• Parties: In the Matter of Arnold M. ASMAN, Petitioner, v. Gordon M. AMBACH, as Commissioner of the Department of Education of the State of New York, et al., Respondents.
• Decision Date: 08 December 1983
• Court: New York Supreme Court Appellate Division

Page 336

471 N.Y.S.2d 336

98 A.D.2d 847

In the Matter of Arnold M. ASMAN, Petitioner, v. Gordon M. AMBACH, as Commissioner of the Department of Education of the State of New York, et al., Respondents.

Supreme Court, Appellate Division Third Department.

Dec. 8, 1983.

Abbott & Bushlow, Ridgewood (Philip C. Pinsky, Syracuse, of counsel), for petitioner.

Robert Abrams, Atty. Gen. (John J. O'Grady, Asst. Atty. Gen., of counsel), for respondents.

Before MAHONEY, P.J., and YESAWICH, WEISS, MIKOLL and LEVINE, JJ.

MEMORANDUM DECISION.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law, § 6510, subd. 5) to annul a determination of the Commissioner of Education which revoked petitioner's license to practice accounting.

Following conviction upon a plea of guilty to attempted bribery of an Internal Revenue agent (U.S.Code, tit. 18, §§ 2, 201, subd. [f] ), petitioner, a licensed certified public accountant, was served with notice of hearing, petition and charges by the Department of Education through its State Board for Public Accountancy. The proceedings were conducted in an expedited procedure pursuant to section 6510 (subd. 2, par. d) of the Education Law, which statute was enacted specifically for use when charges are based upon conviction of a crime which is prima facie evidence of professional misconduct (Education Law, § 6509, subd. [5], par. [a], cl. [ii] ). Following submission of voluminous documentary evidence, testimony, a memorandum of law and oral argument, the Regents Review Committee, by a two to one vote, recommended that petitioner be found guilty of the charge and that suspension of license for two years be imposed, the dissenter recommending revocation. A July 30, 1982 vote of the Board of Regents recommending revocation was withdrawn upon stipulation after petitioner commenced a CPLR article 78 proceeding challenging the recommendation. Thereafter, on November 19, 1982, the Board of Regents reconsidered the matter and again recommended revocation. The Commissioner of Education adopted the recommendation and issued an order to such effect on December 1, 1982. In this CPLR article 78 proceeding, petitioner contends (1) that the absence of a transcript of the hearing was a denial of due process, (2) that the participation of Regent Sclafani as a member of the Board of Regents was improper since he had previously acted as chairman of the Regents Review Committee, and (3) that the Board of Regents failed to properly consider the mitigating evidence offered.

Initially, we adhere to our recent decision upholding the propriety of expedited hearing procedures under section 6510 (subd. 2, par. d) of the Education Law in Matter of Landesman v. Board of Regents, 94 A.D.2d 827, 463 N.Y.S.2d 118 (see, also, Matter of Kaplan v. Board of Regents, 87 A.D.2d 952, 451 N.Y.S.2d 223). Since petitioner's conviction of a crime was undisputed, he was automatically in violation of section 6509 (subd. [5] ) of the Education Law and subject to penalty. Petitioner did not object to the expedited proceedings pursuant to section 6510 (subd. 2, par. d), in which the misconduct charges were referred directly to the Regents Review Committee. Subdivision 2 specifies the contents required in a notice of hearing. While contested disciplinary proceedings and other disciplinary proceedings not resolved pursuant to the expedited procedures require a stenographic record of the hearing (Education Law, § 6510, subd. 3, par. a), there appears to be no requirement for a stenographic transcript in the expedited procedure (see Education Law, § 6510, subd. 2, par. d). Nor does the State Administrative Procedure Act support petitioner's argument. Section 401 (subd. 1) of that law applies in licensing matters where the statute requires notice and a hearing on the record. Petitioner has not offered, and we have not found, any statutory requirement for a stenographic transcript in hearings under the expedited procedure authorized by section 6510 (subd. 2) of the Education Law. Rather, there appears to be sound reasoning for the submission of matters where the disciplinary proceedings are based solely upon the conviction of a licensee of a crime under section 6509 (subd. [5] ). The recommendations and ultimate determinations are essentially made expeditiously upon documentary evidence.

Here, although petitioner, his witnesses and attorney offered oral testimony to the Regents Review Committee, the purpose was in mitigation of the penalty and not to controvert the misconduct charges or any issue of fact. Careful examination of the notice of hearing here discloses that petitioner was notified that he himself should be prepared to respond to inquiries: (1) concerning the relationship between the crime and his practice of accountancy; (2) his background and character as an individual and professional; (3) drug or alcohol abuse (not here applicable); and (4) his current professional practice and the relationship between the crime and his practice. The very nature of the expedited procedure envisions that petitioner would submit his evidence on these matters in written form prior to the hearing. The record includes voluminous evidence in documentary form to demonstrate mitigating circumstances in support of leniency in the imposition of a penalty, all of which was before respondents and this court. Since respondents did not dispute this character evidence, and petitioner was not precluded from submitting additional documentary evidence, the failure to provide a stenographic record of testimony worked no constitutional deprivation (Matter of Economico v. Village of Pelham, 50 N.Y.2d 120, 128, 428 N.Y.S.2d 213, 405 N.E.2d 694; see, also, Matter of Wallace v. Murphy, 21 N.Y.2d 433, 288 N.Y.S.2d 613, 235 N.E.2d 759; Matter of Forrest v. Ambach, 93 A.D.2d 965, 463 N.Y.S.2d 84; Matter of Brennin v. Kirby 79 A.D.2d 396, 436 N.Y.S.2d 896, mot. for lv. to app. dsmd. 54 N.Y.2d 830, cert. den. 456 U.S. 908, 102 S.Ct. 1757, 72 L.Ed.2d 166). The cases cited by petitioner in support of his contention are wholly distinguishable in that in each instance, the applicable statutes required a stenographic transcript of a truly adversarial hearing where contested issues were presented. Here, the Legislature specifically provided for a nonadversarial expedited procedure when the predicate for misconduct charges is the conviction of a crime and only the degree of punishment remains to be determined. No requirement for a transcript was made.

Petitioner next contends that the participation of Regent Sclafani, both on the Regents Review Committee (where he was the sole dissenter and recommended revocation instead of suspension) and as a voting member of the Board of Regents, was improper, citing Matter of Lowcher v. New York City Teachers' Retirement System, 54 N.Y.2d 373, 445 N.Y.S.2d 696, 429 N.E.2d 1167. We do not disagree with the Lowcher decision, which held that "it is, indeed, improper for an impartial reviewer of an issue of fact to sit in review of his own prior determination of fact" (id. at 377, 445 N.Y.S.2d 696, 429 N.E.2d 1167). Here, unlike Lowcher, there is no disputed issue of fact. Implicit in its decision in that case, the Court of Appeals found that the circumstances prevailing in a heavily contested factual situation required reversal "[o]n the facts and circumstances of this case" (id. at 375, 445 N.Y.S.2d 696, 429 N.E.2d 1167). Section 6510 (subd. 4) of the Education Law states that at least one member of the Regents Review Committee must be a member of the Board of Regents, and nowhere in the statute is such dual participation proscribed. Nor do we find error in respondents' failure to recite whether consideration was given to petitioner's cooperation with the government as a mitigating factor. It is now well established that promises by prosecutorial agencies to make defendant's cooperation known to licensing bodies in subsequent disciplinary proceedings are neither binding upon such bodies nor divest such bodies of their right to exercise discretion in the imposition of a penalty (Matter of Chaipis v. State Liq. Auth., 44 N.Y.2d 57, 404 N.Y.S.2d 76, 375 N.E.2d 32; Matter of Sreter v. Board of Examiners of Nursing Home Administrators, Dept. of Health, State of N.Y., 92 A.D.2d 973, 460 N.Y.S.2d 648; Matter of Greco v. Board of Examiners of Nursing Home Administrators, 91 A.D.2d 1108, 458 N.Y.S.2d 343). Moreover, there is nothing in the record to suggest that petitioner's license would not be revoked in return for his cooperation. Rather, the sentencing minutes in the Federal court show that both petitioner and his attorney expected that he would lose his license.

Finally, the punishment cannot be said to be so disproportionate as to be shocking to one's sense of fairness (Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321; see, also, Schaubman v. Blum, 49 N.Y.2d 375, 426 N.Y.S.2d 230, 402 N.E.2d 1133). Petitioner admitted negotiating a bribe in the sum of $22,500 to influence his client's income tax audit. Matter of Pell (supra ) tells us that bribery is a gravely moral crime, for which this court has confirmed revocation of certified public accountants' licenses (see Matter of Landesman v. Board of Regents, 94 A.D.2d 827, 463 N.Y.S.2d 118, supra; Matter of Stubenhaus v. State Educ. Dept., 88 A.D.2d 1102, 453 N.Y.S.2d 69; Matter of Dachowitz v. Board of Regents of Univ. of State of N.Y., 72 A.D.2d 651, 421 N.Y.S.2d 434).

Determination confirmed, and petition dismissed, without costs.

MAHONEY, P.J., and YESAWICH and WEISS, JJ., concur.

MIKOLL and LEVINE, JJ., dissent and vote to annul in the following memorandum by LEVINE, J.

LEVINE, Justice (dissenting).

We respectfully dissent. We may assume, arguendo, that New York constitutionally could have elected to provide for automatic revocation of a professional's license to practice upon conviction of a felony. However,...