Martin v. Adduci

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Department of Motor Vehicles, dated June 26, 1986, which sustained the finding of an Administrative Law Judge that the petitioner had violated Vehicle and Traffic Law § 1180 (b), and which imposed a $100 fine and a 60-day suspension of the petitioner’s driver’s license.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The determination that the petitioner violated Vehicle and Traffic Law § 1180 (b) is supported by substantial evidence on the record and must be confirmed (see, Matter of McKenzie v Fisher, 39 NY2d 103). Opinion evidence of the police officer that the petitioner was driving at a speed nearly twice the legal limit need not be corroborated by mechanical devices and is itself sufficient to sustain a speeding conviction (People v Olsen, 22 NY2d 230). The petitioner’s challenge to the administrative determination rests primarily upon an issue of credibility which was primarily for the fact finder to resolve (see, Matter of Silberfarb v Board of Coop. Educ. Servs., 60 NY2d 979; Matter of Collins v Codd, 38 NY2d 269, 270-271). The testimony of the police officer who issued the summons to the petitioner was not incredible as a matter of law, and was sufficient by itself to sustain the respondent’s burden of proving by clear and convincing evidence (see, Vehicle and Traffic Law § 227 [1]) that the petitioner violated Vehicle and Traffic Law § 1180 (b) by driving at a speed of 95 miles per hour.

The $100 fine and 60-day license suspension was not an excessive penalty. The Administrative Law Judge set this penalty after reviewing the petitioner’s driving record, which contained numerous other moving violations, and after considering the great speed at which the petitioner was driving prior to being stopped by police. A 60-day license suspension was a permissible disposition (see, Vehicle and Traffic Law § 510 [3] [a]). In light of all the circumstances, the punishment handed down is not " ' "so disproportionate to the offense * * * as to be shocking to one’s sense of fairness” ’ ” (Kostika v Cuomo, 41 NY2d 673, 674). Lawrence, J. P., Eiber, Harwood and Balletta, JJ., concur.