SCACCIA v. MARTINEZ (2004)

 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 A.D.2d 237, 699 N.Y.S.2d 316;  Matter of Dykeman v. Jackson, 262 A.D.2d 877, 694 N.Y.S.2d 187;  Matter of Galante v. Commissioner of Motor Vehs. of State of N.Y., 253 A.D.2d 763, 677 N.Y.S.2d 483).   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 A.D.2d 237, 699 N.Y.S.2d 316), whose findings of fact and implicit determination of credibility are not to be disturbed (see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193;  Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 230, 356 N.Y.S.2d 833, 313 N.E.2d 321;  see also Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280, rearg. denied 96 N.Y.2d 854, 729 N.Y.S.2d 670, 754 N.E.2d 773).   As we determined on the prior appeal by petitioner from the judgment convicting him of, inter alia, driving while intoxicated as a class E felony (People v. Scaccia, 4 A.D.3d 808, 808-809, 771 N.Y.S.2d 772), 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 A.D.2d 853, 738 N.Y.S.2d 913;  Matter of Rivera v. New York State Racing & Wagering Bd., 201 A.D.2d 922, 607 N.Y.S.2d 772;  Matter of Leon's Collision Shop v. Adduci, 167 A.D.2d 986, 562 N.Y.S.2d 316), and such evidence may serve as “the basis of an administrative determination” without violating those rights (Matter of Gray v. Adduci, 73 N.Y.2d 741, 742-743, 536 N.Y.S.2d 40, 532 N.E.2d 1268;  see generally Matter of Robert OO. v. Dowling, 217 A.D.2d 785, 786, 629 N.Y.S.2d 494, affd. 87 N.Y.2d 1043, 644 N.Y.S.2d 139, 666 N.E.2d 1052;  Matter of Prodromidis v. McCoy, 292 A.D.2d 769, 770, 738 N.Y.S.2d 630;  Matter of St. Lucia v. Novello, 284 A.D.2d 591, 593, 726 N.Y.S.2d 488;  Matter of O'Hara v. Brown, 193 A.D.2d 564, 565, 598 N.Y.S.2d 207).   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 A.D.2d 746, 747, 702 N.Y.S.2d 189;  Matter of Eckler [Commissioner of Labor], 254 A.D.2d 672, 673, 679 N.Y.S.2d 202;   Matter of Carota Enters. v. Jackson, 241 A.D.2d 667, 669, 659 N.Y.S.2d 581).

We have considered petitioner's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: