Matter of Parsons v. New York State Dept. of Motor Vehs. Appeals Bd.

Matter of Parsons v New York State Dept. of Motor Vehs. Appeals Bd. (2024 NY Slip Op 00533) Matter of Parsons v New York State Dept. of Motor Vehs. Appeals Bd. 2024 NY Slip Op 00533 Decided on February 2, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on February 2, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department PRESENT: SMITH, J.P., BANNISTER, OGDEN, AND GREENWOOD, JJ. 872 TP 23-00666 [*1]IN THE MATTER OF STEVEN J. PARSONS, PETITIONER, v NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES APPEALS BOARD, RESPONDENT. LEONARD CRIMINAL DEFENSE GROUP, PLLC, ROME (JOHN G. LEONARD OF COUNSEL), FOR PETITIONER. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENT. Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Oneida County [Scott J. DelConte, J.], entered November 30, 2022) to review a determination of respondent. The determination revoked petitioner's driver's license. 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 based on his refusal to submit to a chemical test. We confirm the determination. Petitioner contends that he was denied due process because the refusal report lacked reasonable grounds for the arrest, including details to support the claim of impairment or intoxication and the claim that petitioner refused the test. Petitioner did not preserve that contention for our review inasmuch as he did not raise an objection based on his due process rights before the Administrative Law Judge (see Matter of Gorman v New York State Dept. of Motor Vehs., 34 AD3d 1361, 1361 [4th Dept 2006]). We have no discretionary authority to review that contention in this CPLR article 78 proceeding (see Matter of Khan v New York State Dept. of Health, 96 NY2d 879, 880 [2001]). Finally, we conclude that the determination is supported by substantial evidence (see Matter of Geary v Commissioner of Motor Vehs. of State of N.Y., 92 AD2d 38, 41 [4th Dept 1983], affd 59 NY2d 950 [1983]; see also Matter of Huttenlocker v New York State Dept. of Motor Vehs. Appeals Bd., 156 AD3d 1464, 1464 [4th Dept 2017]). Entered: February 2, 2024 Ann Dillon Flynn Clerk of the Court