        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

527
TP 14-01847
PRESENT: CENTRA, J.P., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF RICHARD H. PEESO, PETITIONER,

                    V                             MEMORANDUM AND ORDER

BARBARA J. FIALA, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF MOTOR VEHICLES, RESPONDENT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH 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, Monroe County [Ann Marie
Taddeo, J.], entered October 10, 2014) to review a determination
revoking the driver’s license of petitioner.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination revoking his driver’s license based
on his refusal to submit to a chemical test following his arrest for
driving while intoxicated. Petitioner contends that the determination
was affected by an error of law because the report of refusal did not
indicate that petitioner’s intoxication was voluntary and the report,
thus, was insufficient to establish reasonable grounds that he was
driving while intoxicated. We reject that contention. We conclude
that the report of refusal submitted at the hearing established that
the police officer had reasonable grounds to believe that petitioner
had been driving while intoxicated based upon his observations of
petitioner, including petitioner’s failure of field sobriety tests
(see Gagliardi v Department of Motor Vehs., 144 AD2d 882, 883-884, lv
denied 74 NY2d 606; Matter of Smith v Commissioner of Motor Vehs., 103
AD2d 865, 866). At the hearing, the arresting officer’s report of
refusal was received in evidence and read into the record. That
report establishes that the officer stopped the vehicle driven by
petitioner based on the vehicle’s speed, which exceeded the posted
limit by 22 miles per hour, and a lane violation. After stopping the
vehicle, the officer observed petitioner to have, among other things,
a strong odor of alcoholic beverage on his breath, a flushed
complexion, and poor coordination and balance. Petitioner thereafter
                                 -2-                           527
                                                         TP 14-01847

failed five standard field sobriety tests, and the officer arrested
him for driving while intoxicated. Contrary to petitioner’s further
contention, the determination is supported by substantial evidence in
the record, i.e., the report of refusal (see Matter of Gray v Adduci,
73 NY2d 741, 743). Petitioner’s reliance on People v Cruz (48 NY2d
419, 427, appeal dismissed 446 US 901) is misplaced inasmuch as that
case involved a criminal conviction for driving while intoxicated.

     We reject petitioner’s further contention that the Department of
Motor Vehicles Appeals Board improperly relied upon an adverse
inference from petitioner’s failure to testify at the hearing. Such
an inference was permissible (see 15 NYCRR 127.5 [b]; see generally
Matter of Northland Transp. v Jackson, 271 AD2d 846, 848). We have
considered petitioner’s remaining contention and conclude that it is
without merit.




Entered:   July 2, 2015                         Frances E. Cafarell
                                                Clerk of the Court
