Matter of Britt v New York State Dept. of Motor Vehs.
Annotate this CaseDecided on May 5, 2009
Supreme Court, New York County
In the Matter of the Application of Johnnie Britt, Jr., Petitioner,
against
New York State Department of Motor Vehicles, Respondents.
400339/09
Paul Keefe
Community Service Society
105 E. 22nd Street
New York, NY 10010
(Attorney for Petitioner)
Elizabeth A. Forman
Office of the New York State Attorney General
120 Broadway,
New York, NY 10271
(Attorney for Respondent)
Eileen A. Rakower, J.
Petitioner Johnnie Britt, Jr. ("Petitioner") brings this Article 78 Petition
seeking an order annulling Respondent New York State Department of Motor Vehicles'
("DMV") determination that Petitioner was statutorily barred from employment as a school bus
driver under Article 19-A of the Vehicle and Traffic Law ("VTL").
According to the Petition, Petitioner applied for a position as a school bus driver at
CBT Para Transit, Inc. in Brooklyn, NY, in or around September of 2008. Petitioner was
accepted into the two-week training program, which he successfully completed. Petitioner also
underwent a physical examination, which found him physically qualified for the position.
[*2]
However, on or around October 23, 2008,
Petitioner received a letter from the DMV advising him that he was disqualified from driving a
school bus under Article 19-A of the VTL, based upon information the DMV received from the
New York State Department of Criminal Justice Services.
In 1992, Petitioner was convicted and sentenced for attempted third degree criminal
sale of a controlled substance (a Class C Felony), in violation of Penal Law §220.39. Five
years later, Petitioner was convicted of fifth degree criminal sale of a controlled substance (a
Class D Felony), in violation of Penal Law §220.39.
On February 23, 2004, Petitioner was issued a Certificate of Good Conduct ("CGC")
by the New York State Board of Parole pursuant to Correction Law §703-b in connection
with the above felony convictions.
Petitioner argues that the DMV's decision to deny Petitioner's application for a
position as a school bus driver pursuant to Article 19-A of the VTL was arbitrary and capricious,
due to the fact that Petitioner possesses a CGC pertaining to his 1992 and 1997 felony
convictions; and the decision denies Petitioner equal protection of the laws. Petitioner has
submitted a Notice of Petition and Verified Petition. Annexed to the Petition as exhibits are the
10/23/08 letter from the DMV advising Petitioner of his disqualification; Petitioner's CGC and a
cover letter from the New York State Division of Parole; the Governor's Approval Memorandum
to legislation amending Article 23-A of the Correction Law in 1976; the Governor's Approval
Memorandum to legislation creating Certificates for Relief from Disabilities ("CRDs") for
first-time offenders in 1976; the Memorandum of Senator Marino regarding 1976 legislation
intended to "revamp" CGCs; a Budget Report on Bills discussing amendments to Article 23 of
the Correction Law and the Public Health Law in 1983; the Memorandum of Senator Levy
regarding 1985 amendments to Article 23 of the Correction Law and the VTL; the Memorandum
of Senator Goodman regarding 2001 amendments to Article 19-A of the VTL; and Session Laws
pertaining to 2007 amendments to Article 23 of the Correction Law and the Penal Law.
The DMV has submitted a Verified Answer and a Memorandum of Law in
opposition to the Petition. Annexed to the Answer as exhibits are the administrative record
pertaining to the instant Petition; and portions of the legislative history of VTL §509-a
et seq and Correction Law §700 et seq. Petitioner has submitted a Reply
Affirmation in response.
VTL §509-cc provides, in pertinent part:
(1)A person... shall be disqualified from operating a school bus...
(a)permanently, if that person
(iii)has been convicted of [inter alia, attempted third degree criminal sale of a
controlled substance]. However, such disqualification shall be waived provided that five years
have expired since the applicant discharged or released from a sentence of imprisonment
imposed pursuant to conviction of an offense that requires disqualification under this paragraph
and that the applicant shall have been granted a certificate of relief from disabilities as provided
for in section seven hundred one of the correction law.
Due to Petitioner's 1992 conviction, he cannot be employed as a school bus driver
unless he [*3]obtains a CRD. Correction Law §§ 702
and 703 allow for the issuance of CRDs by courts or the New York State Board of Parole to
"eligible offenders." An "eligible offender" is defined by Correction Law §700 as "a person
who has been convicted of a crime or of an offense, but who has not been convicted more than
once of a felony." Since Petitioner was convicted of two separate felonies in 1992 and 1997, he
does not meet the statutory criterion for an "eligible offender" and thus cannot receive a CRD.
Petitioner claims that the DMV's denial of Petitioner's application to be a school bus
driver on the grounds of VTL Article 19-A was arbitrary and capricious because CGCs must
logically be read into VTL §509-cc alongside CRDs. Petitioner argues that this is the case
because, since CRDs and CGCs confer essentially the same relief, the legislature clearly
intended that CGCs would also remove the barrier of a permanently disqualifying offense such
as the one for which Petitioner was convicted in 1992.
The court is unpersuaded by Petitioner's argument that the legislature intended that
CGCs also operate to waive a permanently disqualifying offense under VTL §509-cc
because the statute plainly sets forth the criterion for such waiver: the passage of five years from
the applicant's discharge or release from his/her prison sentence in connection with the
permanently disqualifying offense;"and that the applicant shall have been granted a certificate of
relief from disabilities as provided for in section seven hundred one of the correction law." There
is simply no indication that the legislature intended to use the term "certificate of relief from
disabilities" so as to mean, "certificate of relief from disabilities or certificate of good conduct."
Petitioner also argues that, pursuant to Hodes v. Axelrod, 56 NY2d 930
[1982], his CGC supersedes the statutory disqualification of his 1992 conviction, in the absence
of clear statutory language to the contrary. This argument fails because VTL §509-cc is
clear; it plainly sets forth that permanent disqualification for certain offenses is waived only
if Petitioner: (1) has been released/discharged from his/her prison sentence pertaining to the
disqualifying offense for a period of at least five years; and (2) has been granted a CRD. Failing
to meet both criteria, Petitioner is statutorily barred from being employed as a school bus driver.
Were the statute totally silent as to waiver of permanent disqualifying offenses (as was the
statute in Hodes), Petitioner could argue that his CGC supersedes his statutory
disqualification under Hodes. However, where, as here, the legislature has provided that
waiver of the statutory disqualification occurs only if the applicant has a CRD, the statute's
silence as to an applicant who possess a CGC but not a CRD mandates the conclusion that the
possession of a CGC does not permit waiver of the statutory bar under the principle of
expressio unius est exclusio alterius (see Arons v. Jutkowitz, 9 NY3d 393, 417-18 [2007]).
Nor does the DMV's adherence to, and application of VTL §509-cc violate
Petitioner's right to equal protection of the laws. The legislature's drawing a distinction between
individuals who have committed only one felony (allowing them to obtain a CRD) and those
who have committed two or more felonies (thereby preventing them from obtaining a CRD)
neither targets a suspect class nor implicates a fundamental right. Accordingly, the only question
for the court herein is whether a rational basis exists for Petitioner's statutory disqualification,
D'Amico v. Crosson, 93 NY2d 29, 31-32 [1999], and clearly one does. It is rational for
the legislature to conclude that an individual who [*4]has
committed only a single felony (and has otherwise met the statutory qualifications for a CRD)
may be considered for a position as a school bus driver; while a person who has committed
felonies on two or more separate occasions may be disqualified from a position in which they are
responsible for the safety and well-being of children and other vulnerable persons.
Wherefore it is hereby
ORDERED that Petitioner's Article 78 Petition is dismissed.
This constitutes the decision and order of the court. All other relief requested is
denied
Dated: May 5, 2009______________________________
Eileen A. Rakower, J.S.C.
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