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In re Agudio

Supreme Court of New York, Third Department

August 2, 2018

In the Matter of ARIEL C. AGUDIO, Petitioner,

          Calendar Date: June 4, 2018

          Law Office of Mark S. Mishler, PC, Albany (Mark S. Mishler of counsel), for petitioner.

          Barbara D. Underwood, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondents.

          Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Aarons, JJ.


          McCarthy, J.P.

         Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent University at Albany, State University of New York finding petitioner guilty of violating said respondent's student code of conduct.

         At approximately 1:00 a.m. on January 30, 2016, petitioner and two other African-American female students at respondent University at Albany, State University of New York (hereinafter SUNY Albany) were involved in an altercation on a public bus traveling from downtown Albany to SUNY Albany's campus. After exiting the bus, petitioner called 911 and reported that she "just got jumped on a bus and no one did anything," that it was a "racial crime" and that people on the bus used racial epithets and slurs against her and her friends. She later provided a similar written statement to police.

         This incident was nationally reported as a racially-motivated crime. However, the ensuing investigation called into question petitioner's account of the incident. SUNY Albany charged petitioner with three violations of its student code of conduct (hereinafter the code): disruptive conduct; threatening or abusive behavior; and forgery, fraud, dishonesty. Following a disciplinary hearing before the Student Conduct Board, at which petitioner did not appear, the Student Conduct Board found her to be in violation of the three charged rules and imposed the sanction of dismissal from SUNY Albany. That determination and penalty were upheld by respondent Laurie Garafola, SUNY Albany's assistant vice-president for student affairs, based on a written recommendation from an Appeal Board. Petitioner commenced this CPLR article 78 proceeding seeking, among other things, to annul that determination.

         A college's determination that a student violated its code of conduct will be upheld if supported by substantial evidence in the record (see CPLR 7803 [4]; Matter of Weber v State Univ. of N.Y., Coll. at Cortland, 150 A.D.3d 1429, 1430 [2017]; Matter of Schwarzmueller v State Univ. of N.Y. at Potsdam, 105 A.D.3d 1117, 1120 [2013]). As relevant here, the code defines threatening or abusive behavior as "[i]ntentionally or recklessly causing physical harm to any person or reasonable fear of such harm." Significantly, "[s]tudents cannot justify such behavior as defensive if: A. The behavior is a physical response to verbal provocation; B. The student has the ability to leave the situation, but instead chooses to respond physically; C. In circumstances where such actions are punitive or retaliatory." The code defines forgery, fraud, dishonesty as, in pertinent part, the "furnishing [of] false information to any [SUNY Albany], local, state or federal official." Disruptive conduct is defined as "[i]mparing, interfering with or obstructing the orderly conduct, processes and functions of [SUNY Albany] or surrounding community" and "includes, but is not limited to, ... boisterous or threatening conduct which is unreasonable in the area, time or manner in which it occurs."

         Although administrative determinations may be based entirely on hearsay evidence as long as "such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted" (Matter of Doctor v New York State Off. of Alcoholism & Substance Abuse Servs., 112 A.D.3d 1020, 1022 [2013] [internal quotation marks and citations omitted]; see Matter of Haug v State Univ. of N.Y. at Potsdam, 149 A.D.3d 1200, 1202 [2017]; Matter of Budd v State Univ. of N.Y. at Geneseo, 133 A.D.3d 1341, 1344 [2015], lv denied 26 N.Y.3d 919');">26 N.Y.3d 919 [2016]), the record contains direct evidence against petitioner, as well as hearsay. In support of the charges, the SUNY Albany police investigator who presented the case submitted recordings of 911 calls made by petitioner and one of her friends, written statements made by petitioner and her two friends and videos of surveillance footage from the bus (see People v Hardy, 26 N.Y.3d 245, 250-251 [2015]). When he played the videos during the hearing, the investigator gave a running commentary based on additional information that he and his office had obtained from interviewing more than 30 people who were on the bus at the time of the altercation, viewing additional videos captured on cell phones and listening to a version of the audio from the surveillance footage that had background noise filtered out. Even though those witness interviews and cell phones videos were not admitted into evidence, the Student Conduct Board could rely on the investigator's hearsay testimony to support the direct evidence.

         According to the videos, the investigator's commentary and petitioner's written statement, an intoxicated passenger was singing loudly at the back of the bus and, after petitioner's friend objected, tensions escalated. A verbal spat ensued between petitioner and her friends and the fellow passengers. During the verbal confrontation, petitioner's friend was called "ignorant" and petitioner told one passenger not to mess with her. Petitioner, in her written statement, also alleged that racial epithets and slurs were directed against her and her friends. After petitioner's friend was told to "get a job," a physical altercation erupted. Petitioner quickly joined in the fight by climbing over a seat and repeatedly striking a female. Several males attempted to separate the fighting women, but petitioner continued to engage in the fight. A short while later, petitioner can be seen on the video attacking a male who was using his phone to record the fight. This bystander never fought back against petitioner and, in her statement, petitioner acknowledged hitting this individual. According to the investigator, both the video evidence and witness statements illustrated that no males fought back against or struck petitioner or her friends at any point and petitioner never fell to the ground, as she had alleged. Furthermore, after viewing the surveillance footage, petitioner's friend admitted that petitioner was never held down as also alleged by petitioner. Once the bus stopped and the doors opened, petitioner and her friends “who were closer to the doors than the women they were fighting ” could have exited but instead stayed on the bus and continued to fight.

         In petitioner's 911 call, she stated that she was the victim of a "racial crime" during which some people directed racial epithets at her and her friends and 10 or 20 "white people," including several males, jumped them. In her written statement, petitioner admitted that she angrily stood up and told one of the passengers not to mess with her, intending to scare the woman into silence for the remainder of the bus ride. Petitioner stated that several males held her down and started hitting her, preventing her from leaving the bus.

         The bus surveillance footage, 911 calls and petitioner's statement “on their own” provide substantial evidence to support the three violations. Even if petitioner was provoked by racial epithets and slurs as she claimed, the surveillance videos nonetheless show that petitioner and her friends were involved in a physical altercation and that, at the end, petitioner continued to fight when she could have safely exited the bus. Petitioner also attacked the male bystander who was recording the altercation despite him not fighting back at all. Petitioner admitted trying to scare one of the women. This evidence supported the charge for threatening or abusive behavior. The same evidence showed her disruptive conduct, as did proof that SUNY Albany police and administrative staff spent an exorbitant amount of time dealing with investigating petitioner's allegations of a racial attack. Regarding the rule prohibiting fraud or dishonesty, the video reveals that petitioner was not "jumped" or physically attacked on the bus as she had represented in her statement and 911 call. Additionally, the evidence does not support her allegations to the police that she was held down and beaten by numerous individuals. Although petitioner claims that some of the comments made on the bus were racially motivated, the Student Conduct Board reasonably concluded, based on the record before it, that, other than an assertion from one of her friends who was involved in the incident, there was "no evidence to support [petitioner's] claim that anyone on the bus directed any racial epithets toward her or [her friends]." Thus, substantial evidence supports the determination that petitioner violated the charged provisions of the code.

         Petitioner's due process rights were not violated by SUNY Albany's disciplinary hearing procedures. Generally, due process requires that the accused student in a college disciplinary proceeding be given written notice of the charges prior to a hearing, the names of the witnesses against him or her, an opportunity to hear and confront evidence against him or her and to present a defense and to be advised in writing of the factual findings and discipline imposed (see Matter of Lambraia v State Univ. of N.Y. at Binghamton, 135 A.D.3d 1144, 1146 [2016]; Matter of Schwarzmueller v State Univ. of N.Y. at Potsdam, 105 A.D.3d at 1119; Matter of Mary M. v Clark, 100 A.D.2d 41, 43-44 [1984]). However, "there is no general constitutional right to discovery in... administrative proceedings" (M ...

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