IN RE: the Application of Michael P. Clancy (2025)

In this CPLR article 78 proceeding, petitioner Michael P. Clancy challenges a determination of respondent New York State Department of Motor Vehicles (DMV) which, following a hearing, revoked petitioner's driver's license pursuant to Vehicle and Traffic Law (VTL) § 1194 for refusal to submit to a chemical breath-alcohol test. Respondent answered and opposed the relief sought in the petition. Petitioner argues that he was denied due process at the hearing because the arresting officer was permitted to testify at the hearing by telephone. For the following reasons, the petition is denied and the proceeding is dismissed.

Facts and Procedural History

In May 2023, claimant was arrested and charged with driving while intoxicated (see VTL § 1192 [3]). In connection with that arrest, respondent issued a report of refusal alleging that petitioner refused to submit to a chemical test at the time of his arrest (see VTL § 1194 [2] [b]). Respondent then served petitioner with a notice of hearing, which provided that an administrative hearing would be held pursuant to VTL § 1194 to determine whether petitioner's driver's license should be revoked. The notice of hearing was also sent to petitioner's counsel and the arresting officer, Trooper Muztafago. The notice states that the hearing would be "held remotely by video/audio" and that "[i]f any party chooses to appear at the hearing by telephone (audio) only, that party foregoes the opportunity to view documents and witnesses on a video screen" (R. at 94). Further, the notice provides instructions for appearing through WebEx videoconferencing technology or, alternatively, by telephone. The hearing was adjourned twice—once because the arresting officer failed to appear, and once upon the request of petitioner's counsel.

Ultimately, the virtual hearing was held in February 2024 before an administrative law judge (ALJ). Petitioner's counsel appeared by video. Petitioner was present but did not testify at the hearing. The only witness to testify was the arresting officer, who appeared by telephone. Immediately after the officer was sworn in, petitioner objected to his testimony. Relying on Matter of Ortiz v New York State Dept. of Motor Vehs. (223 AD3d 438 [1st Dept 2024]), petitioner asserted that he had a right "to directly confront and cross-examine the trooper via a real-time video" instead of by telephone only (R. at 11). The officer stated he did not have access to WebEx and did not know how to get video. The ALJ denied petitioner's objection, noting that the hearing would have the officer's "real-time telephonic audio testimony" (id.).

The trooper testified about the arrest and claimant's alleged refusal to submit to a chemical test. After answering questions from the ALJ, the trooper was vigorously cross-examined by petitioner's counsel. In addition, the ALJ received documents into evidence, including the notices of hearing that were sent to petitioner, his attorney, and the trooper, as well as the report of refusal. At the close of the hearing, petitioner's counsel renewed his objection to the officer's telephonic testimony, asserting that it was important in this case to not only hear the officer, but to be able to see him in order to assess his demeanor. Counsel further argued that the trooper's credibility was at issue because his testimony was evasive and he did not recall significant portions of the events.

The ALJ concluded that respondent met its burden to prove that petitioner violated VTL § 1194 and, thus, revoked petitioner's license effective immediately (see R. at 40). Petitioner appealed to the DMV Board of Appeals (the Board). The Board affirmed the ALJ's determination, holding that the trooper was "subject to meaningful cross examination" despite appearing only by telephone and petitioner otherwise received a full and fair hearing (R. at 3). The Board further noted that neither the VTL nor the DMV Commissioner's regulations prohibit telephonic appearances. Finally, the Board reasoned that, because the State Administrative Procedures Act (SAPA) permits an agency to adopt procedures "for the submission of all or part of the evidence in written form" (SAPA 306 [1])—thereby excluding live witness testimony entirely—then it must be true that an agency may take the less restrictive approach of allowing live witness testimony but limiting it to telephonic audio-only testimony.¹ Petitioner now seeks to annul the Board's determination.

Analysis

Petitioner's sole argument in support of the petition is that he was denied his constitutional right to due process at the hearing because the trooper was permitted to testify by telephone.² Specifically, petitioner argues that it is "crucial" for an effective cross-examination that an ALJ be able to see the witness's demeanor, so that the ALJ could properly assess the witness's credibility (Petition, ¶ 58). Respondent counters that the right of cross-examination is limited in administrative proceedings and argues that, here, petitioner had adequate opportunity to cross-examine the trooper and otherwise present his case.

It is well established that, "[u]nlike the constitutional right to confrontation in criminal matters, parties in administrative proceedings have only a limited right to cross-examine adverse witnesses as a matter of due process" (Matter of Hildreth v New York State Dept. of Motor Vehs. Appeals Bd., 83 AD3d 838, 840-841 [2d Dept 2011], citing Matter of Gordon v Brown, 84 NY2d 574, 578 [1994]). Indeed, hearsay evidence alone—such as an officer's written report of refusal in a DMV chemical test refusal hearing—may serve as the basis for an administrative revocation determination in certain circumstances (see Matter of Gray v Adduci, 73 NY2d 741, 742-743 [1988] [recognizing motorist's right to call arresting officer as a witness at hearing, but finding that the petitioner there had made a tactical choice not to object and subpoena the officer]).

Independent research reveals no New York cases holding that a party's right to due process in an administrative hearing is violated when an adverse witness is permitted to testify and be cross-examined by telephone, and at least one case stands for the opposite proposition. In Matter of Hoffman (Roberts) (138 AD2d 785 [3d Dept 1988]), a case involving an appeal from a determination of the Unemployment Insurance Appeal Board disqualifying an individual from unemployment insurance benefits, the Third Department considered whether the claimant's due process right of cross-examination was violated when the ALJ permitted a representative of the employer to testify by telephone. The Court concluded, under the circumstances, "that the use of the telephonic conference sufficiently allowed [the] claimant to cross-examine the witness against him and that he was not deprived of his constitutional right to due process" (id. at 787). In so holding, the Court took account of the fact that there were "no representatives of the employer within the vicinity of the hearing who could testify," and that claimant was "afforded an opportunity to question the employer's representative at length" (id.).

In other jurisdictions, telephonic testimony has survived due process challenges even where substantial interests are at stake—for example, in deportation proceedings (see Beltran-Tirado v I.N.S., 213 F3d 1179, 1185-1186 [9th Cir. 2000]), proceedings challenging the denial of Social Security Disability benefits (see Hepp v Astrue, 511 F3d 798, 805-806 [8th Cir. 2008]), and supervised release revocation proceedings (see United States v Leeth, 471 Fed Appx 755, 757 [9th Cir. 2012]).

Here, as in Hoffman, petitioner's counsel was provided the opportunity to conduct a thorough cross-examination of the arresting officer. Indeed, petitioner does not contend that the ALJ limited the scope or duration of petitioner's questioning. And although there was no opportunity for the ALJ to see the witness's demeanor, petitioner was nevertheless able to attack the witness's credibility by highlighting his evasiveness and lack of recall. In addition, there was uncontroverted testimony that the trooper did not have access to WebEx videoconferencing technology at the time of the hearing. Petitioner now argues that the trooper's explanation for failing to appear by video was "inadequate in light of the fact that the hearing notice provides simple instructions explaining how to attend the hearing via WebEx" (Petition, ¶ 24), but petitioner ignores the fact that the notice also specifically permitted audio-only telephonic appearances. Petitioner never objected to these instructions before the hearing and, as such, the officer would not have had reason to secure the ability to appear by video. Petitioner also insists that the ALJ should have further adjourned the hearing and directed the officer "to figure out how to appear via WebEx next time" (id. ¶ 25), but petitioner did not request a further adjournment after discovering that the officer could not appear by video. Thus, the Court concludes that petitioner's constitutional right to due process was not violated by the ALJ's decision to permit the trooper to testify by telephone under these circumstances.

Petitioner's reliance on Ortiz for the proposition that the right of cross-examination in an administrative hearing necessarily includes the witness' visual appearance is misplaced. That case held that virtual chemical test refusal hearings are consistent with due process and noted that "nothing in [SAPA] or any other applicable law prohibits a virtual chemical test refusal hearing where there is real-time transmission of video testimony allowing for counsel to cross-examine a witness and allowing for counsel and the court to visually assess the witness's demeanor and credibility" (223 AD3d at 439-440). Thus, as respondent argues, Ortiz provides only that video hearings are permissible; whether telephone appearances are also permissible was not an issue before the Court. Telephone appearances, like video appearances, are not prohibited by SAPA or the regulations cited by the Ortiz Court (see SAPA 306 [3]; 15 NYCRR 127.5 [c]; 127.9 [b]) and, as explained above, the Third Department has upheld the use of telephonic testimony against a due process challenge (see Hoffman, 138 AD2d at 787). Although the language in Ortiz certainly suggests that the ability to visually assess a witness' demeanor is important, the case does not support the position that visual assessment is an indispensable component of the "limited" due process right of cross-examination (Gordon, 84 NY2d at 578; see Hoffman, 138 AD2d at 787).

Petitioner's reliance on criminal cases to support a broader construction of the right of cross-examination in administrative proceedings is similarly misguided (see Reply, ¶ 28, citing People v Ramirez, 41 NY3d 406, 413 [2024], People v Wrotten, 14 NY3d 33, 39 [2009], People v Cintron, 75 NY2d 249, 260 [1990], and People v Kraft, 148 NY 631, 634 [1896]). A criminal defendant's right of cross-examination is protected by the confrontation clause of the Sixth Amendment, which has been construed generally to require a " 'face-to-face' encounter between accuser and accused" (Cintron, 75 NY2d at 258, quoting Coy v Iowa, 487 US 1012, 1019-1020 [1988]). But as explained above, the confrontation clause does not apply to civil proceedings, and the applicable right of cross-examination under the auspices of due process is much more circumscribed (see Gordon, 84 NY2d at 578). Accordingly, it is hereby

ORDERED and ADJUDGED that the petition is DENIED and the proceeding is DISMISSED.

This shall constitute the decision, order, and judgment of the Court. The original decision, order, and judgment is being transmitted to the respondent's attorney. A copy is being sent to petitioner, and all other original papers on the petition will be delivered to the County Clerk. The signing of this decision, order, and judgment, and delivery to the parties, shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule respecting entry, filing, and service.

SO ORDERED AND ADJUDGED.

Dated: March 26, 2025

Albany, New York

ZAINAB A. CHAUDHRY

Acting Supreme Court Justice

Papers Considered:

1. Notice of Petition and Petition with Exhibits A - G, filed September 18, 2024;

2. Answer with Bates-Stamped Record, Affirmation of John J. Kenefick, Esq., in Support of 3. Answer, and Memorandum of Law in Support of Answer, filed December 27, 2024; and

3. Reply Affirmation of Eric H. Sills, filed January 28, 2025.

FOOTNOTES

1.   The Board had initially concluded, in error, that SAPA does not apply to chemical test refusal hearings (see Ortiz, 223 AD3d at 439, citing SAPA 102 [1]).

2.   Respondent's request to transfer the proceeding to the Appellate Division is denied because no issue of substantial evidence is raised in the petition (see CPLR 7804 [g]). Indeed, petitioner here expressly disavows that he has raised any such question, and confirms that he is only asserting the argument that DMV's determination was made in violation of lawful procedure or affected by an error of law (see Reply Affirmation, ¶¶ 5-8, citing CPLR 7804 [3]). Accordingly, this Court is considering only the question whether the trooper's participation at the hearing via telephonic means, rather than by video, violated petitioner's constitutional right to cross-examination as a matter of law.

Zainab A. Chaudhry, J.