Opinion
381 TP 18–00451
03-22-2019
In the Matter of Gregory THOMPSON, Petitioner, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, Timothy B. Lennon, Deputy Commissioner and Counsel, New York State Department of Motor Vehicles and Eric T. Schneiderman, Attorney General, State of New York, Respondents.
TULLY RINCKEY PLLC, ROCHESTER (ZACHARY T. RUETZ OF COUNSEL), FOR PETITIONER. BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (BRIAN D. GINSBERG OF COUNSEL), FOR RESPONDENTS.
TULLY RINCKEY PLLC, ROCHESTER (ZACHARY T. RUETZ OF COUNSEL), FOR PETITIONER.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (BRIAN D. GINSBERG OF COUNSEL), FOR RESPONDENTS.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination revoking his driver's license and commercial driver's license based on his refusal to submit to a chemical test following his arrest for driving while intoxicated. We confirm the determination.
Contrary to petitioner's contention, the determination is supported by substantial evidence (see Matter of Peeso v. Fiala , 130 A.D.3d 1442, 1443, 13 N.Y.S.3d 742 [4th Dept. 2015], lv. denied 26 N.Y.3d 910, 2015 WL 6457395 [2015] ). The arresting officer's testimony at the hearing established that the officer lawfully stopped the vehicle driven by petitioner for a traffic violation (see generally People v. Grimes , 133 A.D.3d 1201, 1202, 20 N.Y.S.3d 261 [4th Dept. 2015] ), possessed reasonable grounds to believe that petitioner had been driving while intoxicated based on, inter alia, petitioner's failure of field sobriety tests (see Peeso , 130 A.D.3d at 1443, 13 N.Y.S.3d 742 ), and had probable cause to arrest petitioner (see Matter of Sherwood v. New York State Dept. of Motor Vehs. , 153 A.D.3d 1022, 1024–1025, 59 N.Y.S.3d 837 [3d Dept. 2017] ; People v. Lewis , 124 A.D.3d 1389, 1390–1391, 999 N.Y.S.2d 661 [4th Dept. 2015], lv. denied 26 N.Y.3d 931, 17 N.Y.S.3d 94, 38 N.E.3d 840 [2015] ). In addition, the officer's testimony, "along with his refusal report, which was entered in evidence, established that petitioner refused to submit to the chemical test after being warned twice of the consequences of such refusal" ( Matter of Huttenlocker v. New York State Dept. of Motor Vehs. Appeals Bd. , 156 A.D.3d 1464, 1464, 65 N.Y.S.3d 881 [4th Dept. 2017] ). The Administrative Law Judge was entitled to discredit petitioner's testimony to the contrary (see Matter of Bersani v. New York State Dept. of Motor Vehs. , 162 A.D.3d 1553, 1553, 77 N.Y.S.3d 822 [4th Dept. 2018] ).
We have reviewed petitioner's remaining contentions and conclude that they do not require a different result.