Opinion
November 27, 1967
Proceeding pursuant to CPLR article 78 to annul a determination of respondent which (1) found that petitioner had suffered or permitted gambling on his licensed premises on three stated days and (2) suspended his off-premises beer license for a period of 10 days plus 10 days previously deferred, for a total of 20 days. Determination annulled, on the law, without costs, and matter remitted to respondent for the purpose of respondent's holding a hearing in accordance with the memorandum herein and making a determination de novo. In our opinion, on the present record, there appears no warrant for respondent to have set aside the determination made by its own hearing officer that no proof was adduced indicative of gambling or policy transactions on the licensed premises on the dates charged. When reversing its hearing officer with the statement that his findings were not adopted, respondent made no new findings of fact but merely reached the conclusion that petitioner had suffered or permitted gambling on the premises as charged. In the face of the ultimate fact that only a piece of paper, betokening policy transactions, was found on the floor of the licensed premises, without any evidence that it had ever been in the custody or dominion of petitioner or his subaltern, or had been prepared by him or for him, there was not sufficient proof to find petitioner guilty of the charge against him. While petitioner was not to be exonerated merely because a criminal charge, based on the same evidence, was dismissed (cf. Matter of Kane v. New York City Tr. Auth., 22 A.D.2d 947), respondent could reach a contrary decision to that of the Criminal Court of the City of New York only if "ample proof" was adduced before it ( Matter of Lynch's Bldrs. Restaurant v. O'Connell, 303 N.Y. 408, 410). On a new hearing, perhaps the minutes of the Criminal Court will be of some aid in deciding whether, despite the result therein shown, the guilt or innocence of petitioner on the instant charge appears. Since these minutes are not part of the present record, that possibility is not now existent. On such new hearing, either party may also offer such additional evidence as may be available. Beldock, P.J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.