IN RE: MICHAEL P. CLANCY JR. (2026)

MEMORANDUM AND ORDER

Calendar Date:  September 10, 2026

Appeal from a judgment of the Supreme Court (Zainab Chaudhry, J.), entered April 1, 2025 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent revoking petitioner's driver's license.

In May 2023, petitioner was arrested following a traffic stop and charged with driving while intoxicated.  Petitioner's driver's license was subsequently suspended based upon his refusal to submit to a chemical breath test (see Vehicle and Traffic Law § 1194[2][c] ).  Petitioner thereafter received notice that a virtual hearing pursuant to Vehicle and Traffic Law § 1194 would be conducted to determine whether revocation of his license was required.  In February 2024, a revocation hearing was held before an Administrative Law Judge (hereinafter ALJ).  The arresting state trooper testified at the hearing telephonically, without video.  Petitioner's objection to the trooper's audio-only testimony – based upon claimed due process violations – was overruled.  Following the hearing, the ALJ found that petitioner had refused a chemical test after proper warnings and revoked petitioner's license, and that determination was affirmed upon petitioner's subsequent administrative appeal.  Petitioner then commenced this CPLR article 78 proceeding to review the revocation of his license, arguing that he was deprived of his due process right to visually assess the trooper's demeanor and credibility.  Supreme Court dismissed the petition, finding that the trooper's telephonic testimony did not violate petitioner's due process rights.  Petitioner appeals.

In challenging the revocation of his driver's license, petitioner's sole contention is that his due process right to confront an adverse witness was violated by the trooper having been permitted to testify by telephone, rather than by video.  At the outset, we are mindful that “[a]lthough due process protections in administrative contexts are less than those applicable to criminal prosecutions, where the government seeks to deprive an individual of a protected interest the due process right to cross-examine adverse witnesses in administrative proceedings is the same as in a civil proceeding” (Matter of Monaghan v. Schroeder, 45 NY3d 543, 553 [2025] ).  Nevertheless, the State Administrative Procedure Act, though providing that a party has the right to cross-examination in administrative proceedings, does not require that witness testimony or cross-examination occur in any specific format (see State Administrative Procedure Act § 306[3] ).  “To determine whether a petitioner has been afforded due process in an administrative proceeding, we must balance three factors:  (1) the nature of the private interest affected by the State's action;  (2) the risk of an erroneous deprivation and the effect of additional procedural safeguards;  and (3) the governmental interest” (Matter of Monaghan v. Schroeder, 45 NY3d at 553 [internal quotation marks and citation omitted];  see Matter of Spence v Office of the N.Y. State Comptroller, 240 AD3d 1067, 1071 [3d Dept 2025] ).

Under the circumstances presented here, although we agree that petitioner had the right to cross-examine the trooper at the hearing, we do not find that he was deprived of such right by the trooper's audio-only testimony.  In balancing the three competing due process factors, we recognize that petitioner's “private interest in retaining his driver's license and the government's interest in public safety are both significant” (Matter of Monaghan v. Schroeder, 45 NY3d at 554).  Our determination thus turns upon the “benefit and burden” of requiring witness testimony at a virtual license revocation hearing to be given with both audio and video components (id.).

The record here reflects that petitioner was on notice that the hearing was to be conducted by “video/audio” and that participation by “telephone (audio) only” was permitted.  As to the challenged testimony, after first being placed under oath, the trooper testified in real time by telephone, explaining then that he did not have the ability to attend the hearing by video and did not know how to do so.  Notably, despite objecting to the format of the trooper's testimony, nothing in the record indicates that petitioner sought a further adjournment for the trooper to obtain access to a video conference program.  Instead, petitioner's attorney proceeded to engage in extensive cross-examination of the trooper, in which he raised concerns as to the trooper's evasiveness and ability to recall certain details of the traffic stop and arrest.  As such, contrary to petitioner's arguments on appeal, the hearing transcript reveals that the trooper's account of events and credibility were fully explored and placed before the ALJ. Even so, it is significant that the revocation of a driver's license based upon the refusal to submit to chemical testing does not require the testimony of the arresting officer and may instead be supported by relevant documentation alone (see Vehicle and Traffic Law § 1194;  15 NYCRR 127.9[c];  Matter of Martinez–Martinez v. Schroeder, 236 AD3d 1124, 1125 [3d Dept 2025];  Matter of Reuss v. Schroeder, 217 AD3d 1083, 1085–1086 [3d Dept 2023] ), and the sufficiency of the trooper's refusal report here is not challenged.

We accordingly perceive no risk of an erroneous deprivation of petitioner's due process rights nor justification for the significant cost and administrative burden of ensuring that adverse witnesses have access to and training with video conference programs in administrative hearings (see Matter of Monaghan v. Schroeder, 45 NY3d at 554–555;  Matter of Hoffman [Roberts], 138 A.D.2d 785, 787 [3d Dept 1988], appeal dismissed 77 N.Y.2d 987 [1991];  see also Matter of Martinez–Martinez v Schroeder, 236 AD3d at 1125;  Matter of Reuss v. Schroeder, 217 AD3d at 1085–1086;  Matter of State of New York v. John T., 195 AD3d 102, 106–107 [3d Dept 2021] ).  Petitioner's remaining arguments have been considered and found to be unpersuasive.

Aarons, J.P., Reynolds Fitzgerald and Powers, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

Mackey, J.