Opinion
572 TP 22-00180
07-08-2022
In the Matter of Robert L. MALVESTUTO, Petitioner, v. Mark J.F. SCHROEDER, in His Official Capacity as Commissioner, New York State Department of Motor Vehicles, Respondent.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (ALEXANDER E. BASINSKI OF COUNSEL), FOR PETITIONER. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENT.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (ALEXANDER E. BASINSKI OF COUNSEL), FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 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 (DWI). We confirm the determination.
Contrary to petitioner's contention, the determination is supported by substantial evidence. The arresting officer's testimony at the hearing established that the officer possessed reasonable grounds to believe that petitioner had been driving while intoxicated inasmuch as the hood of the vehicle in question was warm when the officer arrived at the scene, there was a single set of footprints in the snow leading away from the driver's side of the vehicle following the path that petitioner was alleged by the complaining witness to have taken, petitioner admitted that he had been in the vehicle, petitioner exhibited signs of alcohol consumption and impairment, and petitioner refused to perform field sobriety tests (see Matter of Thompson v. New York State Dept. of Motor Vehs. , 170 A.D.3d 1657, 1657-1658, 94 N.Y.S.3d 916 [4th Dept. 2019] ; see also People v. Barnes , 137 A.D.3d 1571, 1571-1572, 27 N.Y.S.3d 745 [4th Dept. 2016], lv denied 27 N.Y.3d 1128, 39 N.Y.S.3d 110, 61 N.E.3d 509 [2016] ; People v. Annis , 126 A.D.3d 1525, 1526, 6 N.Y.S.3d 363 [4th Dept. 2015] ). In addition, the officer's testimony, along with his refusal report, which was entered in evidence, established that petitioner refused to submit to the chemical test after he was arrested for DWI and warned three times of the consequences of such refusal (see Vehicle and Traffic Law § 1194 [2] [a] [1] ; Matter of Huttenlocker v. New York State Dept. of Motor Vehs. Appeals Bd. , 156 A.D.3d 1464, 1464, 65 N.Y.S.3d 881 [4th Dept. 2017] ).