N.Y. Comp. Codes R. & Regs. tit. 15 § 124.4

Current through Register Vol. 46, No. 22, May 29, 2024

Section 124.4 - Conduct of hearing; procedure; recusal

(a) The administrative law judge will call the police officer, the motorist, and the attorney or other representative, if any, to the dais. After the charge is read, the police officer will testify. The burden of proving the charge rests with the police officer, who has the obligation to present evidence which is sufficient to establish each material element of the charge by clear and convincing evidence. Other testimony in support of the charge may then be given.

(b) The administrative law judge may question the police officer for the purpose of clarifying evidence already presented; leading questions addressed to material elements of the charge which have been omitted from the police officer's testimony may not be asked.

(c) After the people's case has been presented, the motorist may then testify on his or her own behalf and call witnesses. Any person who testifies may be examined by the administrative law judge and cross- examined by the adverse party. All testimony shall be given under oath or affirmation. The administrative law judge may exclude any witness, except the motorist or police officer, during the testimony of another person. Documentary evidence may be introduced by any party.

(d) When the administrative law judge has received all of the evidence, the police officer and motorist or his or her representative may make a closing statement. The administrative law judge will then consider all the evidence in the record and announce whether or not the charge has been sustained by clear and convincing evidence.

(e) The motorist may request recusal of a presiding administrative law judge. The request and the reason for it must be stated to the presiding administrative law judge at the commencement of the hearing or as soon after the beginning as the motorist receives information which forms the basis for such request. An administrative law judge's denial of a request for recusal is appealable provided a hearing determination is subsequently made which is appealable by the requestor to the Traffic Violations Appeals Board pursuant to article 2-A of the Vehicle and Traffic Law.

N.Y. Comp. Codes R. & Regs. Tit. 15 § 124.4