Summary
In Ortenberg v Commissioner of Motor Vehicles (191 AD2d 898, 595 NYS2d 127 [3d Dept 1993]), a 45-day suspension was imposed by the Commissioner of Motor Vehicles, where the driver violated VTL § 1102 by failing to comply with lawful direction of police officer directing traffic.
Summary of this case from Schiass v. SwartsOpinion
March 11, 1993
Appeal from the Supreme Court, Albany County.
In our view, the Administrative Law Judge correctly rejected petitioner's contention that the Department of Motor Vehicles was required to prove petitioner's guilt under the "clear and convincing" standard set forth in Vehicle and Traffic Law § 227 (1). That statute applies to hearings held under Vehicle and Traffic Law article 2-A. Petitioner's hearing, however, was held pursuant to Vehicle and Traffic Law article 3-A (see, Vehicle and Traffic Law § 510). Thus, the clear and convincing standard was not applicable (compare, Matter of Lovenheim v Foschio, 93 A.D.2d 986; Rosenthal v. Giustiniani, 64 A.D.2d 697; Matter of Sulli v. Appeals Bd. of Admin. Adjudication Bur., 55 A.D.2d 457; see generally, Matter of Silverstein v. Appeals Bd. of Parking Violations Bur., 100 A.D.2d 778, lv denied 62 N.Y.2d 606).
There is also substantial evidence in the record to support respondent's conclusion that petitioner failed to comply with a lawful direction of a police officer in violation of Vehicle and Traffic Law § 1102 (see, Matter of Fazzone v. Adduci, 155 A.D.2d 540; Matter of Ballen v. Commissioner of Motor Vehicles, 147 A.D.2d 560). Police Officer William Robinson testified that while he was directing traffic on the day in issue, he raised his hand to allow a child and school crossing guard to cross the street. A light-colored mid-sized vehicle ignored Robinson's signal and kept going. The license plate number taken down by Robinson matched petitioner's vehicle and petitioner fit Robinson's description of the driver. Although petitioner and one of his employees testified that he was never at the scene of the incident, this merely raised a question of credibility for the Administrative Law Judge to resolve (see, Matter of Halstead v Adduci, 125 A.D.2d 846). Finally, we find that the 45-day suspension was not so disproportionate to the offense as to be shocking to one's sense of fairness (see, Matter of Fazzone v Adduci, supra; Matter of Draper v. Passidomo, 122 A.D.2d 564). Robinson testified that the vehicle almost struck the child. In view of this conclusion, the arguments raised by respondent in this regard need not be reached.
Mikoll, J.P., Levine, Crew III, Casey and Harvey, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.