Summary
holding that trial court erred in granting petition to set aside order of cancellation issued by respondent; court "had no authority to review respondent's determination sustaining the charges against petitioner" because, "[b]y entering [his] 'no contest' plea, petitioner waived [his] right to a review of the facts upon which the punishment was imposed"
Summary of this case from Wolfe v. City of RochesterOpinion
February 2, 1996
Appeal from the Supreme Court, Cayuga County, Corning, J.
Present — Denman, P.J., Lawton, Doerr, Balio and Boehm, JJ.
Judgment unanimously reversed on the law without costs and petition dismissed. Memorandum: Supreme Court erred in granting the petition to set aside the order of cancellation issued by respondent. The court "had no authority to review respondent's determination sustaining the charges against petitioner. By entering [his] `no contest' plea, petitioner waived [his] right to a review of the facts upon which the punishment was imposed" (Matter of Desiderio's Parklane Pizzeria v. Duffy, 143 A.D.2d 508, 509; see, Matter of Colony Liq. Distribs. v. State Liq. Auth., 46 A.D.2d 703, appeal dismissed 36 N.Y.2d 755, rearg denied 37 N.Y.2d 741). Petitioner's no contest plea "amounted to a waiver of a hearing and an admission of the facts as charged" (Matter of Barotti v. New York State Liq. Auth., 82 A.D.2d 1004, 1005). We reject the contention that the penalty of cancellation of petitioner's license is so disproportionate to the offense as to be shocking to one's sense of fairness (see, Matter of Pell v Board of Educ., 34 N.Y.2d 222, 233). Petitioner has a prior record of gambling and was aware that gambling on the premises was a ground for revocation or cancellation of his license (see, 9 NYCRR 53.1 [m]). Additionally, respondent considered the mitigating circumstances and did not impose the maximum penalty.