IN RE: Timothy CASE

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Timothy CASE, Petitioner, v. NEW YORK STATE RACING & WAGERING BOARD, Respondent.

Decided: April 30, 2009

Before:  CARDONA, P.J., MERCURE, SPAIN, LAHTINEN and MALONE JR., JJ. Marvin Newberg, Monticello, for petitioner. Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent which revoked petitioner's license to participate in pari-mutuel racing.

A random blood test in May 2006 on a horse trained by petitioner tested positive for a level of total carbon dioxide (hereinafter TC02) that exceeded the level allowed by the pertinent regulation (see 9 NYCRR former 4120.16, now codified at 9 NYCRR 4120.13).   Two charges were brought against petitioner;  first, that his horse had a TC02 level that violated the controlling regulation and, second, that petitioner's history of rule violations-including multiple drug violations since 2000-revealed that his participation in horse racing was inconsistent with the best interests of horse racing (see 9 NYCRR 4119.7 [b];  see also Racing, Pari-Mutuel Wagering and Breeding Law § 309[2] ).   Following a hearing that included testimony from several experts and other witnesses, the Hearing Officer issued a thorough report finding that both charges had been established and recommending that petitioner's license be revoked.   Respondent adopted the findings of the Hearing Officer, revoked petitioner's license and declared him ineligible to reapply for his license for a period of five years.   This proceeding ensued.

 We consider first petitioner's argument that the test result obtained for his horse was not reliable because of flawed procedures in the chain of custody and testing.   Respondent must make an initial showing that a properly conducted test resulted in a positive finding of a prohibited substance (see Matter of Mosher v. New York State Racing & Wagering Bd., 74 N.Y.2d 688, 690, 543 N.Y.S.2d 374, 541 N.E.2d 403 [1989];  Matter of Guarino v. New York State Racing & Wagering Bd., 45 A.D.3d 1096, 1097, 845 N.Y.S.2d 858 [2007], lv. denied 10 N.Y.3d 730, 852 N.Y.S.2d 826, 882 N.E.2d 396 [2008] ).   Here, the testimony of the raceway's supervising inspector (Dana Bogdan) and the pharmacology professor (George Maylin) from Cornell University where the blood sample was tested provided ample proof that the sample was collected, labeled, preserved, transported and tested in compliance with accepted and established procedures.   While petitioner produced evidence challenging the reliability of both the methods of gathering blood samples and the testing thereof, this gave rise to credibility issues for the Hearing Officer to resolve (see Matter of Pedersen v. New York State Racing & Wagering Bd., 46 A.D.3d 1072, 1073, 848 N.Y.S.2d 388 [2007];  Matter of Sachs v. New York State Racing & Wagering Bd., Div. of Harness Racing, 1 A.D.3d 768, 772, 767 N.Y.S.2d 144 [2003], lv. denied 2 N.Y.3d 706, 780 N.Y.S.2d 312, 812 N.E.2d 1262 [2004] ).   The Hearing Officer addressed the credibility issues and resolved them in favor of the proof presented by respondent.   There is substantial evidence of a properly obtained positive test, which petitioner failed to rebut, and respondent's determination is adequately supported in all respects by the record (see Matter of Mosher v. New York State Racing & Wagering Bd., 74 N.Y.2d at 690, 543 N.Y.S.2d 374, 541 N.E.2d 403;  Matter of Zito v. New York State Racing & Wagering Bd., 300 A.D.2d 805, 806-807, 752 N.Y.S.2d 109 [2002], lv. denied 100 N.Y.2d 502, 760 N.Y.S.2d 765, 790 N.E.2d 1194 [2003] ).

 Petitioner's challenge to the severity of the penalty is unavailing.   He was charged and found to have violated not only the regulation regarding a horse's TC02 level, but, in light of his ignominious history of drug violations, petitioner was also charged and found to have violated the regulation broadly permitting “the penalties as prescribed by law” for activities inconsistent with the best interests of racing (9 NYCRR 4119.7 [b] ).  Under the circumstances, “the penalty of revocation of petitioner's license is not ‘so disproportionate to the offense as to be shocking to one's sense of fairness' ” (Matter of Leggio v. Hogan, 59 A.D.3d 967, 968, 872 N.Y.S.2d 321 [2009], quoting 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, 237, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.



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