Pietranico v. Ambach , 82 A.D.2d 625 ( 1981 )

OPINION OF THE COURT

Weiss, J.

Petitioner was a licensed practical nurse and worked from 1957 to 1968 when she interrupted her practice for 10 years during which period her registration lapsed. On January 23, 1979, she filed a statement of practice form required to be filed biannually by all licensed practical nurses. She disclosed that she had, on August 12, 1972, been convicted of the crime of possession of gambling records in the second degree (Penal Law, §225.15), a class A misdemeanor, and was fined $100. In April, 1979, the State Board for Nursing, Committee on Professional Conduct, held a hearing on a charge of professional misconduct as defined in section 6509 (subd [5], par [a], cl [i]) of the Education Law. The panel found her guilty of the charge and recommended censure and reprimand. The Regents Review Committee recommended that the punishment be a three-year suspension of her license with execution of the last two years stayed, during which time petitioner would be placed on probation. The Board of Regents adopted this recommendation and the Commissioner of Education made his order to such effect on November 5,1980. This proceeding ensued.

Central to petitioner’s argument is the issuance of a certificate of relief from disabilities pursuant to article 23-A of the Correction Law on March 5, 1980 (about one year after the license revocation proceedings were commenced), which she urges is an effective bar to consideration of the conviction. This premise is erroneous. “Article 23-A by its terms applies only to the ‘application’ for a license by a person previously convicted of a crime (see Correction Law, § 751); it has no bearing on disciplinary proceedings against persons already licensed” (Matter of Mosner v Ambach, 66 AD2d 912; see, also, Matter of Durante v Board of Regents of State Univ. of N. Y., 70 AD2d 692, app dsmd 48 NY2d 654). This court has held it could not find the Legislature intended to supercede the disciplinary provisions prescribed in the Education Law by enacting article 23-A of the Correction Law, especially in view of the long-settled rule that unprofessional conduct need not be limited to acts directly connected with the treatment of patients (Matter of Mosner v Ambach, 66 AD2d 912, supra; Matter of Pepe v Board of Regents of Univ. of State of N. Y., 31 AD2d 582, mot for lv to app den 24 NY2d 741).

The undisputed facts show that petitioner was convicted of a crime and the determination of the commissioner, being supported by substantial evidence, should not be disturbed (Matter of Pell v Board of Educ., 34 NY2d 222). The standard of review of an administrative decision by the Commissioner of Education is limited, and we may not substitute our judgment for that of the commissioner unless the decision reviewed is arbitrary and capricious or lacks a rational basis (Matter of Chauvel v Nyquist, 43 NY2d 48, 52; Matter of Kelley v Ambach, 83 AD2d 733). Moreover, “it is not the prerogative of a reviewing court to substitute its judgment for that of the agency’s determination when the record reasonably supports the agency’s conclusion” (Matter of Freyman v Board of Regents of Univ. of State of N. Y., 79 AD2d 719, 720; see, also, Matter of Major v Connelie, 81 AD2d 718).

Finally, we cannot say the punishment may be characterized as shocking to one’s sense of fairness or unreasonably harsh and excessive (Matter of Pell v Board of Educ., 34 NY2d 222, supra). Our powers to review an administrative sanction are limited, particularly when considering suspension of a license as a measure of punishment (Matter of Robinson v Board of Regents of Univ. of State of N. Y., 79 AD2d 1067; Matter of Tartack v New York State Educ. Dept., 75 AD2d 953, mot for lv to app den 50 NY2d 805). The mere fact that others guilty of such transgressions have escaped with lighter penalties does not justify a modification here (Matter of Raguseo v Ambach, 67 AD2d 738, 739).

The determination should be confirmed, and the petition dismissed, without costs.