Sasson v. Commissioner of Educ.

• Decision Date: 12 February 1987
• Citation: 127 A.D.2d 875,511 N.Y.S.2d 696
• Parties: In the Matter of Maurice SASSON, Petitioner, v. COMMISSIONER OF EDUCATION et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 696

511 N.Y.S.2d 696

127 A.D.2d 875

In the Matter of Maurice SASSON, Petitioner, v. COMMISSIONER OF EDUCATION et al., Respondents.

Supreme Court, Appellate Division Third Department.

Feb. 12, 1987.

Wood & Scher (William L. Wood, Jr., of counsel), Scarsdale, for petitioner.

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

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

LEVINE, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law § 6510-a[4] ) to review a determination of respondent Commissioner of Education which revoked petitioner's license to practice medicine in New York State.

Petitioner was charged by the Department of Health with various violations of Public Health Law article 33, to wit, that he (1) unlawfully prescribed controlled substances on three occasions; (2) unlawfully prescribed controlled substances not in good faith and not in the course of his professional practice; (3) willfully made a false statement in a record required to be kept under Public Health Law article 33; (4) failed to maintain copies of official State prescription forms issued to him; (5) failed to promptly report to the Commissioner of Health the name of addicts or habitual users of dangerous drugs; and (6) failed to report the theft or loss of several of his official State prescription forms. An administrative hearing was scheduled, prior to which petitioner entered into a stipulation of guilt on each charge. He was assessed a penalty of $7,500 and a five-year suspension of his prescription writing privileges.

Thereafter, a charge of professional misconduct based upon the foregoing stipulation of guilt to the Public Health Law article 33 charges (see, Education Law § 6509[5][c] ) was served upon petitioner and the matter was referred to the Regents Review Committee for a further professional disciplinary proceeding (see, Public Health Law § 230[10][m][iv]; Education Law § 6510-a[1] ). A hearing was held before a three-member panel of the Review Committee, which unanimously recommended that petitioner be found guilty of professional misconduct and voted two to one that his license to practice be revoked. Respondent Board of Regents accepted the findings and recommendations of the Review Committee, and petitioner's license to practice medicine was subsequently revoked by respondent Commissioner of Education. Petitioner then commenced the instant proceeding seeking review of that determination.

We reject petitioner's initial contention that since the charge of professional misconduct was served, and the matter was referred to the Regents Review Committee, by the Director of the Office of Professional Medical Conduct instead of the Commissioner of Health, as required by Public Health Law § 230(10)(m)(iv), the Regents' determination was thereby rendered arbitrary and capricious. Petitioner failed to raise this claim at the administrative proceeding level and thus has not preserved it for our review.

We are similarly unpersuaded by petitioner's claim that his then-attorney's failure to advise him that the stipulation of guilt on the Public Health Law article 33 charges could result in a further proceeding to revoke his license constituted ineffective assistance of counsel and mandates annulment of the Regents' decision. Other than in certain narrowly defined circumstances (see, e.g., Matter of Ella B., 30 N.Y.2d 352, 334 N.Y.S.2d 133, 285 N.E.2d 288; People ex rel. Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238; People ex rel. Rogers v. Stanley, 17 N.Y.2d 256, 270 N.Y.S.2d 573, 217 N.E.2d 636), the right to effective assistance of counsel (U.S....