Matter of Buckson v. Harris

Full title: In the Matter of RALPH A. BUCKSON, Petitioner, v. JOSEPH HARRIS, as Albany…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Dec 29, 1988

145 A.D.2d 883 (N.Y. App. Div. 1988)

Opinion

December 29, 1988

Casey, J.

In this proceeding in the nature of prohibition, petitioner, who was indicted on charges of driving while intoxicated as a felony and has a number of prior alcohol-related traffic offenses, contends that respondent Albany County Judge lacked the authority to suspend petitioner's privilege to operate a motor vehicle as a condition of the pretrial probation imposed when petitioner was admitted to bail upon arraignment. We hold that the County Judge had the authority to suspend petitioner's privilege to operate a motor vehicle.

Vehicle and Traffic Law § 510 (1) includes "any county judge" among the list of those authorized to suspend a driver's license, and the final sentence of section 510 (3) (i) provides, "A license * * * may, however, be temporarily suspended without notice, pending any prosecution, investigation or hearing." Lower courts have construed this latter provision as authorizing temporary discretionary suspensions pending the prosecution of alcohol-related driving offenses (e.g., Matter of Ryan v Smith, 139 Misc.2d 151, 152; Matter of De Vito v Aylward, 77 Misc.2d 524, 526-527). Furthermore, this court in People ex rel. Moquin v Infante ( 134 A.D.2d 764, 765) recently imposed as an additional condition to bail that the petitioner not operate a motor vehicle while released on bail and that she surrender her driver's license during such time. Accordingly, we are satisfied that the County Judge did not exceed his authorized powers in this case. We note that Vehicle and Traffic Law § 510 (7) treats a suspension under the statute as an administrative act reviewable in Supreme Court.

Since the extraordinary remedy of prohibition lies only where petitioner has established a clear right to relief and where the action taken is clearly without jurisdiction or in excess of authorized powers (see, Matter of Holtzman v Goldman, 71 N.Y.2d 564, 569; Matter of Rush v Mordue, 68 N.Y.2d 348, 352), the petition must be dismissed.

Petition dismissed, without costs. Mahoney, P.J., Kane, Casey, Weiss and Mercure, JJ., concur.