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

1216
CA 14-00589
PRESENT: SMITH, J.P., CENTRA, FAHEY, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF JEFFREY A. SHEARER,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

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


ARTHUR J. RUMIZEN, WILLIAMSVILLE, FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JEFFREY W. LANG OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (Diane Y. Devlin, J.), entered March 19, 2014 in a
proceeding pursuant to CPLR article 78. The judgment denied the
petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner’s New York State driver’s license was
revoked in June 2011, as part of the sentence imposed upon his
conviction of driving while intoxicated under Vehicle and Traffic Law
§ 1192. In February 2013, he applied for relicensing pursuant to
Vehicle and Traffic Law § 510 (5), and he appeals from a judgment
denying his CPLR article 78 petition seeking to annul respondent’s
denial of that application.

     Petitioner contends that the 25-year look-back period set forth
in 15 NYCRR part 136 is unenforceable and that respondent therefore
erred in applying it to his application. Specifically, petitioner
contends that the look-back period is legislative in nature and is
inconsistent with the Vehicle and Traffic Law, which contains look-
back periods of 10 years or less. Thus, petitioner contends that he
is entitled to be relicensed immediately. We reject those
contentions.

     We conclude that 15 NYCRR 136.5 is not legislative in nature,
inasmuch as the Legislature delegated its authority to administer the
relicensing process to the Commissioner of the Department of Motor
Vehicles (see Vehicle and Traffic Law §§ 215 [a]; 510 [5], [6]; see
generally Boreali v Axelrod, 71 NY2d 1, 8-11). Therefore, in
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                                                         CA 14-00589

promulgating 15 NYCRR part 136, the Commissioner has not “act[ed]
inconsistently with the Legislature, or usurp[ed] its prerogatives”
(Clark v Cuomo, 66 NY2d 185, 189).

     We further conclude that 15 NYCRR 136.5 is not in conflict with
any look-back period in the Vehicle and Traffic Law (see Matter of
Acevedo v New York State Dept. of Motor Vehs., 2014 NY Slip Op
30422[U], *13; see generally Matter of Hauptman v New York State Dept.
of Motor Vehs., 158 AD2d 600, 601, appeal dismissed 75 NY2d 1004, lv
denied 76 NY2d 706). Indeed, the look-back periods in the Vehicle and
Traffic Law to which petitioner refers do not control here, inasmuch
as they are inapplicable, set only minimum revocation periods, or
concern the enhancement of criminal charges and punishments (see
Acevedo, 2014 NY Slip Op 30422[U], *13; see generally Matter of Barnes
v Tofany, 27 NY2d 74, 75-79).

     Petitioner further contends that, even if 15 NYCRR part 136
applies, he cannot be considered a “persistently dangerous driver”
under the 25-year look-back period because his prior offenses were not
sufficiently egregious. We reject that contention. The regulation
states in relevant part that the Commissioner “shall” deny a request
for relicensing where, within the 25-year look-back period, “the
person has three or four alcohol- . . . related driving convictions .
. . in any combination . . . and, in addition, has one or more serious
driving offenses” (15 NYCRR 136.5 [b] [2]). Here, within the 25 years
preceding petitioner’s most recent revocable offense (see 15 NYCRR
136.5 [a] [4]), i.e., driving while intoxicated, petitioner has two
other alcohol-related driving convictions, i.e., driving while
intoxicated and driving while ability impaired, both under Vehicle and
Traffic Law § 1192 (see 15 NYCRR 136.5 [a] [1] [i]). Furthermore,
respondent properly concluded that petitioner committed a serious
driving offense within the meaning of the regulation because the
regulation defines a serious driving offense as occurring where a
driver has accumulated “20 or more points from any violations” (15
NYCRR 136.5 [a] [2] [iv]), and petitioner had accumulated 21 points
from other traffic violations. Respondent was therefore required to
deny petitioner’s application for relicensing.




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