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

22
TP 11-01466
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF PENNELLA L. LINTON, PETITIONER,

                    V                              MEMORANDUM AND ORDER

STATE OF NEW YORK DEPARTMENT OF MOTOR VEHICLES
APPEALS BOARD, RESPONDENT.


PENNELLA L. LINTON, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARLENE O. TUCZINSKI
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 [Evelyn
Frazee, J.], dated July 18, 2011) to review a determination of
respondent. The determination revoked 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 her driver’s license based
on her refusal to submit to a chemical test following her arrest for
driving while intoxicated. The record establishes that a police
officer stopped the vehicle driven by petitioner based on her failure
to yield the right-of-way, to maintain her lane and to stop at a red
light. Although the officer warned petitioner of the consequences of
refusing to submit to a chemical test, she nevertheless refused to do
so.

     Contrary to petitioner’s contention, the determination is
supported by substantial evidence. “ ‘Hearsay evidence is admissible
in administrative hearings’ . . ., ‘and if sufficiently relevant and
probative may constitute substantial evidence’ ” (Matter of
Mastrodonato v New York State Dept. of Motor Vehicles, 27 AD3d 1121,
1122; see Matter of Gray v Adduci, 73 NY2d 741, 742). Here, the
documentary evidence submitted at the hearing established that the
officer had reasonable grounds to believe that petitioner had been
driving while impaired or intoxicated, that the officer made a lawful
arrest of petitioner and “that petitioner refused to submit to the
chemical test after being warned of the consequences of such refusal”
(Gray, 73 NY2d at 742; see Vehicle and Traffic Law § 1194 [2] [c]).
                                 -2-                            22
                                                         TP 11-01466

“[T]he Administrative Law Judge [(ALJ)] was entitled to discredit
petitioner’s testimony to the contrary” (Mastrodonato, 27 AD3d at
1122), and the record as a whole does not support petitioner’s further
contention “that the [ALJ] was prejudiced or biased or had
predetermined the case” (Matter of Donlick v Hults, 13 AD2d 879, 880;
see Matter of Wai Lun Fung v Daus, 45 AD3d 392).




Entered:   February 10, 2012                    Frances E. Cafarell
                                                Clerk of the Court
