Gray v. Adduci

• Decision Date: 27 October 1988
• Citation: 532 N.E.2d 1268,536 N.Y.S.2d 40,73 N.Y.2d 741
• Parties: , 532 N.E.2d 1268 In the Matter of Dale F. GRAY, Respondent, v. Patricia B. ADDUCI, as Commissioner of Motor Vehicles of the State of New York, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 40

536 N.Y.S.2d 40

73 N.Y.2d 741, 532 N.E.2d 1268

In the Matter of Dale F. GRAY, Respondent, v. Patricia B. ADDUCI, as Commissioner of Motor Vehicles of the State of New York, Appellant.

Court of Appeals of New York.

Oct. 27, 1988.

Robert Abrams, Atty. Gen. (Daniel Smirlock, O. Peter Sherwood and Peter H. Schiff, Albany, of counsel), for appellant

Melvin L. Olver and Timothy Maloney, Rochester, for respondent.

OPINION OF THE COURT MEMORANDUM.

The judgment of the Appellate Division, 132 A.D.2d 943, 518 N.Y.S.2d 272, should be reversed, with costs, and the determination of the Commissioner of Motor Vehicles reinstated.

Hearsay evidence can be the basis of an administrative determination (see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 495 N.Y.S.2d 332, 485 N.E.2d 997; Matter of Lahey v. Kelly, 71 N.Y.2d 135, 524 N.Y.S.2d 30, 518 N.E.2d 924; Matter of National Basketball Assn. v. New York State Div. of Human Rights, 68 N.Y.2d 644, 505 N.Y.S.2d 63, 496 N.E.2d 222; see also, People ex rel. McGee v. Walters, 62 N.Y.2d 317, 322, 476 N.Y.S.2d 803, 465 N.E.2d 342). Here, the arresting officer's written report of petitioner's refusal is sufficiently relevant and probative to support the findings of the Administrative Law Judge that petitioner refused to submit to the chemical test after being warned of the consequences of such refusal (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 181, 408 N.Y.S.2d 54, 379 N.E.2d 1183). The quantum of evidence before the Administrative Law Judge was substantial since a reasonable mind could accept the report as "adequate to support a conclusion or ultimate fact" (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183, supra; National Labor Relations Bd. v. Remington Rand, 2nd Cir., 94 F.2d 862, cert. denied 304 U.S. 576, 58 S.Ct. 1046, 82 L.Ed. 1540).

Petitioner's additional claim that the Commissioner's determination was made without cross-examination in violation of the State Administrative Procedure Act § 306(3), and of petitioner's right to due process is without merit. Petitioner had the right to call the officer as a witness (see, State Administrative Procedure Act § 304 Matter of Eagle v. Paterson, 57 N.Y.2d 831, 455 N.Y.S.2d 759, 442 N.E.2d 56; Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842). Even though the Administrative Law Judge had adjourned the hearing on prior occasions due to the absence of the police officer, this inconvenience cannot be determinative as a matter of law. Petitioner always had it within his power to subpoena the officer at any time. Even after the Administrative Law Judge decided to introduce the written report on his own motion and proceed with the hearing, petitioner's sole objection voiced was on hearsay grounds. He never claimed on the record before the Administrative Law Judge who was in the best position to afford him a remedy, that he had been misled, prejudiced or biased by the Judge's actions. Indeed, petitioner could have sought an adjournment to subpoena the officer. That he chose not to, was a tactical decision, which is not dispositive of the outcome.

KAYE, Judge (dissenting).

In a license revocation proceeding, a hearing was scheduled to take place on December 14, 1984 before an Administrative Law Judge (ALJ) to determine whether the arresting officer had reasonable grounds to believe that petitioner was operating a motor vehicle in violation of Vehicle and Traffic Law § 1192, and whether he actually refused to submit to a chemical test to determine blood alcohol content (Vehicle and Traffic Law § 1194). Without excuse or explanation, the officer made no appearance. The ALJ denied petitioner's dismissal motion and adjourned the proceeding without date. Petitioner was then summoned to appear for the adjourned hearing on August 15, 1985. Again the officer without excuse or explanation failed to appear, again petitioner's motion to dismiss was denied, and again the ALJ adjourned the proceeding. However, the ALJ announced, and noted on his disposition sheet, that the appearance of the arresting officer would be required. But on the next adjourned hearing date--September 24, 1985--the officer again failed to appear without excuse or explanation. Petitioner's motion to dismiss again was denied. This time, however, the ALJ proceeded to open the hearing and introduce into evidence, on his own motion and over petitioner's objection, the report of refusal to submit to chemical test--a one-page, undated, preprinted form apparently completed by the arresting officer. The form set forth the alleged "reasonable grounds" of the indicated charges and that, after appropriate warning, petitioner had refused to submit to a breath test for alcohol. The ALJ then adopted as his findings all of the allegations of the report, and he ordered petitioner's license revoked.

The court now overturns the Appellate Division's eminently sensible conclusion that petitioner's rights were violated. I cannot agree that reversal is warranted, either on these...