Scaccia v. Martinez

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Onondaga County [Anthony J. Paris, J.], entered January 20, 2004) to review a determination of respondents. The determination revoked petitioner’s driving license for refusal to submit to a chemical test.

It is hereby ordered that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Substantial evidence supports the determination revoking the driver’s license of petitioner based on his refusal to submit to a chemical test to determine his blood alcohol level after being clearly and unequivocally provided with the warning prescribed by Vehicle and Traffic Law § 1194 (2) (b) (see Matter of Eyrich v Jackson, 267 AD2d 237 [1999]; Matter of Dykeman v Jackson, 262 AD2d 877 [1999]; Matter of Galante v Commissioner of Motor Vehs. of State of N.Y., 253 AD2d 763 [1998]). The variance between the testimony of the arresting officer and that of petitioner and his father presented an issue of credibility to be resolved by the Administrative Law Judge (ALJ) (see Eyrich, 267 AD2d 237 [1999]), whose findings of fact and implicit determination of credibility are not to be disturbed (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230 [1974]; see also Matter of Kelly v Safir, 96 NY2d 32, 38 [2001], rearg denied 96 NY2d 854 [2001]). As we determined on the prior appeal by petitioner from the judgment convicting him of, inter aha, driving while intoxicated as a class E felony (People v Scaccia, 4 AD3d 808, 808-809 [2004]), petitioner was not deprived of his right to consult meaningfully with counsel before deciding whether to submit to a chemical test.

Also contrary to the contention of petitioner, he was not deprived of his due process rights or his right of confrontation. Hearsay evidence is admissible in administrative hearings (see Matter of Danielle G. v Schauseil, 292 AD2d 853 [2002]; Matter of Rivera v New York State Racing & Wagering Bd., 201 AD2d 922 [1994]; Matter of Leon’s Collision Shop v Adduci, 167 AD2d 986 [1990]), and such evidence may serve as “the basis of an administrative determination” without violating those rights (Matter of Gray v Adduci, 73 NY2d 741, 742 [1988]; see generally Matter of Robert OO. v Dowling, 217 AD2d 785, 786 [1995], affd 87 NY2d 1043 [1996]; Matter of Prodromidis v McCoy, 292 AD2d 769, 770 [2002]; Matter of St. Lucia v Novello, 284 AD2d 591, 593 [2001]; Matter of O’Hara v Brown, 193 AD2d 564, 565 [1993]). In addition, there is no indication in the record that the ALJ was not impartial in conducting the hearing (see Matter of Murray [Commissioner of Labor], 268 AD2d 746, 747 [2000]; Matter of Eckler [Commissioner of Labor], 254 AD2d 672, 673 [1998]; Matter of Carota Enters. v Jackson, 241 AD2d 667, 669 [1997]).

We have considered petitioner’s remaining contentions and conclude that they are without merit. Present—Green, J.P., Hurlbutt, Kehoe, Martoche and Hayes, JJ.