N.Y. Comp. Codes R. & Regs. tit. 15 § 127.5

Current through Register Vol. 46, No. 43, October 23, 2024

Section 127.5 - Conduct of hearings; recusal

(a) A respondent or designated representative may request recusal of an assigned hearing officer. The request and the reason for it must be made to the assigned hearing officer at the beginning of the hearing or as soon thereafter as the requestor receives information which forms the basis for such request. Denial of a request for recusal shall be reviewable by the Administrative Appeals Board or Repair Shop Review Board under procedures established pursuant to articles 3-A and 12-A of the Vehicle and Traffic Law, provided a final, adverse determination is subsequently made which is appealable by the requestor to the appropriate board.

(b) At the hearing, the respondent or his or her designated representative may admit or deny any allegation made in the notice of hearing. Any matter which has been stipulated to or admitted on the open record by the respondent shall be deemed proven. Failure to respond to any allegation shall be deemed a denial of such allegation, and under no circumstances shall the respondent be compelled to testify. However, the hearing officer may draw a negative inference from the failure to testify.

(c) The order of proof at a hearing shall be determined by the hearing officer. Testimony shall be given under oath or affirmation. The hearing officer, in his or her discretion, may exclude any witnesses, other than a respondent or a representative of the department, if one is present, during other testimony. The hearing officer may also admit any relevant evidence in addition to oral testimony. Any witness may be questioned and/or cross-examined by the hearing officer, by his or her own counsel or representative, and by the party who did not call the witness.

(d) At the conclusion of all proceedings necessary to determine whether the respondent has violated any of the provisions of the Vehicle and Traffic Law or these regulations, the hearing officer must, as provided in section 127.10 of this Part, either render or reserve decision. At such time, the hearing officer shall advise the respondent that, for the sole purposes of establishing an appropriate penalty, the respondent may offer any relevant comments or testimony regarding respondent's prior record as provided by or revealed to the hearing officer.

(e) The provisions of sections 124.1(b), 124.2(b) and 124.4(a) through (e) of this Title shall be applicable to hearings held under section 1194-a of the Vehicle and Traffic Law relating to a charge of a violation of section 1192-a of such law.

N.Y. Comp. Codes R. & Regs. Tit. 15 § 127.5