Opinion
2 TP 22-01494
03-17-2023
In the Matter of John DOE, Petitioner, v. Suny BROCKPORT, Respondent.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JILL L. YONKERS OF COUNSEL), FOR PETITIONER. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (CHRIS LIBERATI-CONANT OF COUNSEL), FOR RESPONDENT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JILL L. YONKERS OF COUNSEL), FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (CHRIS LIBERATI-CONANT OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, BANNISTER, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: In this CPLR article 78 proceeding transferred to this Court pursuant to CPLR 7804 (g), petitioner seeks to annul a determination finding him responsible for violations of respondent's code of student conduct and, inter alia, suspending him for a period of two years. We confirm the determination.
In reviewing the determination here, this Court "must accord deference to the findings of the administrative decision-maker" and has " ‘no right to review the facts generally as to weight of evidence, beyond seeing to it that there is substantial evidence’ " ( Matter of Haug v. State Univ. of N.Y. at Potsdam , 32 N.Y.3d 1044, 1045, 87 N.Y.S.3d 146, 112 N.E.3d 323 [2018] ; see generally CPLR 7803 [4] ). Substantial evidence is "less than a preponderance of the evidence ... and demands only that a given inference is reasonable and plausible, not necessarily the most probable" ( Haug , 32 N.Y.3d at 1045-1046, 87 N.Y.S.3d 146, 112 N.E.3d 323 [internal quotation marks omitted]). Where there is substantial evidence to support a determination, the "determination must be sustained, irrespective of whether a similar quantum of evidence is available to support other varying conclusions" ( Matter of Collins v. Codd , 38 N.Y.2d 269, 270, 379 N.Y.S.2d 733, 342 N.E.2d 524 [1976] ; see Haug , 32 N.Y.3d at 1046, 87 N.Y.S.3d 146, 112 N.E.3d 323 ). Further, in considering whether a determination is supported by substantial evidence, it is "the province of the hearing board to resolve any conflicts in the evidence and make credibility determinations" ( Haug , 32 N.Y.3d at 1046, 87 N.Y.S.3d 146, 112 N.E.3d 323 ).
Here, the question is not whether petitioner violated a law or regulation of the State of New York, but whether petitioner violated respondent's code of student conduct, with which petitioner agreed to comply when he enrolled as a student. Contrary to petitioner's contention, respondent's determination after a hearing that petitioner violated certain provisions of the code governing sexual contact between students is supported by substantial evidence. In finding petitioner responsible for the alleged violations, respondent applied the code's definition of "[a]ffirmative consent," which provides that consent must be "active, not passive" and must consist of "words or actions [that] create clear permission regarding [a person's] willingness to engage in the sexual activity." As defined, affirmative consent does not include "[s]ilence or lack of resistance" and a person may be unable to affirmatively consent depending upon the degree of their intoxication due to alcohol, drugs, or other intoxicants. Further, the code provides that the charged student's own intoxication is not a defense to an allegation of sexual misconduct. Here, after affording due deference to respondent's credibility determinations and its weighing of the conflicting evidence, we conclude that there is substantial evidence in the record to support respondent's determination and, thus, we "may not substitute [our] judgment for that of [respondent], even if [we] would have decided the matter differently" ( id. ).
Contrary to petitioner's further contention, we conclude that respondent substantially adhered to its own procedural rules during the disciplinary proceeding and did not otherwise fail to act as a fair and detached factfinder (see Matter of Alexander M. v. Cleary , 205 A.D.3d 1073, 1078, 168 N.Y.S.3d 162 [3d Dept. 2022] ; Matter of Mavrogian v. State Univ. of N.Y. at Buffalo , 186 A.D.3d 975, 975, 129 N.Y.S.3d 560 [4th Dept. 2020] ; see also Matter of Agudio v. State Univ. of N.Y. , 164 A.D.3d 986, 991-992, 83 N.Y.S.3d 343 [3d Dept. 2018] ).
We also reject petitioner's contention that the sanctions imposed by respondent were "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness" ( 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, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] [internal quotation marks omitted]). Petitioner's additional challenge to the sanctions imposed was not raised during the administrative process or on the administrative appeal and, thus, it is not properly before us (see Mavrogian , 186 A.D.3d at 977, 129 N.Y.S.3d 560 ; see generally Matter of Khan v. New York State Dept. of Health , 96 N.Y.2d 879, 880, 730 N.Y.S.2d 783, 756 N.E.2d 71 [2001] ).