Gaming Commission Rulings Database
| Licensee: RICHARD E. DUTROW JR |
| Licensed As: OWNER-TRAINER |
| Notice Number: MO 44-2011 |
| Racing Type: Thoroughbred |
| Track: Main Office |
| Notice Date: 08/08/2018 |
| Status: CLOSED |
| Ruling Type: Other |
| Rule(s): 4022.23, 4043.2(g)(4),4043.4, 4012.1(a)(1), 4012.1(c) 4003.46 4002.8 4002.9 |
| Ruling Text: YOU ARE HEREBY NOTIFIED TO SHOW CAUSE before the New York State Racing and Wagering Board (“Board”) at its main office at One Broadway Center, Suite 600, Schenectady, New York at 10:00 a.m. on Wednesday and Thursday, March 30 and 31, 2011, whether, pursuant to New York State Racing, Pari-Mutuel Wagering and Breeding Law ("Racing Law") §§ 220(2) and 250, Article 3 of the State Administrative Procedure Act, and 9 NYCRR § 4022.23 and Part 5402: 1. Your license(s) to participate in pari-mutuel racing should be suspended or revoked and you should be fined because the horse "Factus Cactus," trained by you, competed in the 3rd race at Aqueduct Racetrack on November 20, 2010 with the drug butorphanol (a/k/a torbugesic) having been administered within 96 hours before the scheduled post time of its race, in violation of 9 NYCRR §§ 4043.2(g)(4) and 4043.4, for which your trainer license was suspended for 60 days as set forth in AQ 25-2011 (copy annexed); 2. Your license(s) to participate in pari-mutuel racing should be suspended or revoked and you should be fined because you, while not a veterinarian and having no written permission from the stewards, possessed on the premises of a franchised race track equipment usable for infusion and hypodermic injection into a horse, to wit, three syringes in your desk in Room J, Barn 10, at Aqueduct Racetrack on November 3, 2010, in violation of 9 NYCRR § 4012.1(a)(1), for which your trainer license was suspended for 30 consecutive days as set forth in AQ 26-2011 (copy annexed); 3. Your license(s) to participate in pari-mutuel racing should be suspended or revoked and you should be fined because you possessed on the premises of a franchised race track an unlabeled container of drugs, to wit, three unlabeled syringes loaded with the drug xyzaline (a/k/a rompun) in your desk in Room J, Barn 10, at Aqueduct Racetrack on November 3, 2010, in violation of 9 NYCRR § 4012.1(c); 4. You should be expelled from the premises of all pari-mutuel racetracks in New York state because you are a person whose conduct at race tracks in New York state and elsewhere has been improper, obnoxious, unbecoming, and detrimental to the best interests of racing, pursuant to 9 NYCRR § 4003.46, based on the foregoing and your history of rule violations; and 5. Your license(s) to participate in pari-mutuel racing should be suspended or revoked because your character and general fitness are such that your participation in pari-mutuel racing is inconsistent with the public interest, convenience and necessity and with the best interests of racing generally, contrary to Racing Law § 220(2) and 9 NYCRR §§ 4002.8 and 4002.9, based on the foregoing and your history of rule violations. FINDINGS AND ORDER, October 12, 2011, Kristen M. Buckley: ORDERED, that the Board determines that, although the Hearing Officer did not expressly find and conclude that the facts, as he found them, establish that the charged statutes and rules were violated, and only implied this in his Report, the Board, for the sake of clarity and to avoid any ambiguity, hereby expressly finds and concludes that such facts establish that the charged statutes and rules were violated by respondent; ORDERED, that on November 20, 2010, respondent Richard E. Dutrow, Jr. violated 9 NYCRR §§ 4043.2(g)(4) and 4043.4, in that, the horse "Fastus Cactus," trained by him, competed in the 3rd race at Aqueduct Racetrack with the drug butorphanol (a/k/a torbugesic) having been administered within 96 hours before the scheduled post time of its race; and the ruling (AQ 25-2011) of the State Steward at Aqueduct Racetrack that he committed this violation is affirmed; ORDERED, that in addition to the other portion of his penalty, which is set forth below, the Board imposes for this violation a fine of twenty-five thousand dollars ($25,000); ORDERED, that on November 3, 2010, respondent Richard E. Dutrow, Jr. violated 9 NYCRR § 4012.1(a)(1), in that, while not a veterinarian and having no written permission from the stewards, he had and possessed on the premises of a franchised race track equipment usable for infusion and hypodermic injection into a horse, to wit, three syringes in his desk in Room J, Barn 10, at Aqueduct Racetrack; and the ruling (AQ 26-2011) of the State Steward at Aqueduct Racetrack that he committed this violation is affirmed; ORDERED, that on November 3, 2010, respondent Richard E. Dutrow, Jr. violated 9 NYCRR § 4012.1(c), in that, he had and possessed on the premises of a franchised race track an unlabeled container of drugs, to wit, three unlabeled syringes loaded with the drug xyzaline (a/k/a rompun) in his desk in Room J, Barn 10, at Aqueduct Racetrack; ORDERED, that in addition to the other portion of his penalty, which is set forth below, the Board imposes for respondent’s two violations on November 3, 2010, another fine of twenty-five thousand dollars ($25,000); ORDERED, that based on the foregoing and his extensive history of rule violations, respondent Richard E. Dutrow, Jr. is a person whose conduct at race tracks in New York State and elsewhere has been improper, obnoxious, unbecoming, and detrimental to the best interests of racing, pursuant to Racing Law § 220(2) and 9 NYCRR § 4003.46 and, therefore, he shall not enter or remain upon the premises of any licensed New York race track and upon discovery or recognition he shall be forthwith ejected from any such premises; ORDERED, that this exclusion and/or expulsion of respondent Richard E. Dutrow, Jr. from licensed New York race tracks shall take effect on October 18, 2011; ORDERED, that based on the foregoing and his extensive history of rule violations, respondent Richard E. Dutrow, Jr.’s character and general fitness are such that his participation in pari-mutuel racing is inconsistent with the public interest, convenience and necessity and with the best interests of racing generally, contrary to Racing Law § 220(2) and 9 NYCRR §§ 4002.8 and 4002.9; ORDERED, that based on his foregoing violations and his extensive history of rule violations, and as another portion of his penalty herein, respondent Richard E. Dutrow, Jr.’s occupational license(s) to participate in pari-mutuel racing are hereby revoked, and the effective date of his revocation, to permit an orderly transfer of horses by their owners, is October 18, 2011; ORDERED, that based on his foregoing violations and his extensive history of rule violations, and as the last portion of his penalty herein, respondent Richard E. Dutrow, Jr. shall be and hereby is declared ineligible to reapply for any license issued by the Board for ten years, to wit, until October 19, 2021; and that the Board has determined to provide this more lenient period of ineligibility, rather than the permanent license revocation recommended by the Hearing Officer, in order to provide for the possibility that the respondent may rehabilitate himself and deserve reconsideration notwithstanding the severity of his misconduct to date; and ORDERED, that during the period of his revocation, respondent Richard E. Dutrow, Jr. shall not directly or indirectly participate in New York pari-mutuel horse racing, he is denied the privileges and use of the grounds of all racetracks, and he is forbidden to participate in any share of purses or other payment. Every horse is denied the privileges of the grounds and shall not participate in pari-mutuel racing in New York, further, that is (a) owned or trained by him, or any individual who serves as his agent or employee, during his revocation; or (b) for which he, during his revocation, is involved, directly or indirectly, with its training, including but not limited to any arrangements made to care for, train, enter, race, invoice, collect fees or payments, manage funds, employ or insure workers, provide advice or information, or otherwise assist with any aspect of the training of the horse. 10/17/2011, STAY GRANTED BY SCHENECTADY SUPREME COURT 1/17/2013, Upon the Finding and Order of the New York State Racing and Wagering Board (“Board”) Mtr. of Richard E. Dutrow, Jr. (MO 44-2011) dated October 12, 2011, having been stayed by court order upon the filing of an article 78 petition denoted Mtr. of Richard E. Dutrow v. New York State Racing and Wagering Board; the court having confirmed and upheld the Board action on July 19, 2012 (see 97 A.D.3d 1034 [3rd Dep’t 2012]); the Court of Appeals having sua sponte dismissed his appeal upon the ground that no substantial constitutional question was directly involved on October 23, 2012 (see 2012 NY Slip Op 58376); and the Court of Appeals having denied his motion for leave to appeal on January 8, 2013 (Mo. No. 2012-1164); and Mr. Dutrow having been duly served with a copy of the Court of Appeals’ decision and order with notice of entry, it is hereby ORDERED, that the Board determines that, although the Hearing Officer did not expressly find and conclude that the facts, as he found them, establish that the charged statutes and rules were violated, and only implied this in his Report, the Board, for the sake of clarity and to avoid any ambiguity, hereby expressly finds and concludes that such facts establish that the charged statutes and rules were violated by respondent; ORDERED, that on November 20, 2010, respondent Richard E. Dutrow, Jr. violated 9 NYCRR §§ 4043.2(g)(4) and 4043.4, in that, the horse "Fastus Cactus," trained by him, competed in the 3rd race at Aqueduct Racetrack with the drug butorphanol (a/k/a torbugesic) having been administered within 96 hours before the scheduled post time of its race; and the ruling (AQ 25-2011) of the State Steward at Aqueduct Racetrack that he committed this violation is affirmed; ORDERED, that in addition to the other portion of his penalty, which is set forth below, the Board imposes for this violation a fine of twenty-five thousand dollars ($25,000); ORDERED, that on November 3, 2010, respondent Richard E. Dutrow, Jr. violated 9 NYCRR § 4012.1(a)(1), in that, while not a veterinarian and having no written permission from the stewards, he had and possessed on the premises of a franchised race track equipment usable for infusion and hypodermic injection into a horse, to wit, three syringes in his desk in Room J, Barn 10, at Aqueduct Racetrack; and the ruling (AQ 26-2011) of the State Steward at Aqueduct Racetrack that he committed this violation is affirmed; ORDERED, that on November 3, 2010, respondent Richard E. Dutrow, Jr. violated 9 NYCRR § 4012.1(c), in that, he had and possessed on the premises of a franchised race track an unlabeled container of drugs, to wit, three unlabeled syringes loaded with the drug xyzaline (a/k/a rompun) in his desk in Room J, Barn 10, at Aqueduct Racetrack; ORDERED, that in addition to the other portion of his penalty, which is set forth below, the Board imposes for respondent’s two violations on November 3, 2010, another fine of twenty-five thousand dollars ($25,000); ORDERED, that based on the foregoing and his extensive history of rule violations, respondent Richard E. Dutrow, Jr. is a person whose conduct at race tracks in New York State and elsewhere has been improper, obnoxious, unbecoming, and detrimental to the best interests of racing, pursuant to Racing Law § 220(2) and 9 NYCRR § 4003.46 and, therefore, he shall not enter or remain upon the premises of any licensed New York race track and upon discovery or recognition he shall be forthwith ejected from any such premises; ORDERED, that this exclusion and/or expulsion of respondent Richard E. Dutrow, Jr. from licensed New York race tracks, scheduled in the Board’s Findings and Order at the conclusion of his de novo administrative adjudicatory proceeding to begin October 18, 2011, having been stayed by court order from taking effect, shall take effect on this 17th day of January, 2013; ORDERED, that based on the foregoing and his extensive history of rule violations, respondent Richard E. Dutrow, Jr.’s character and general fitness are such that his participation in pari-mutuel racing is inconsistent with the public interest, convenience and necessity and with the best interests of racing generally, contrary to Racing Law § 220(2) and 9 NYCRR §§ 4002.8 and 4002.9; ORDERED, that based on his foregoing violations and his extensive history of rule violations, and as another portion of his penalty herein, respondent Richard E. Dutrow, Jr.’s occupational license(s) to participate in pari-mutuel racing are hereby revoked, and this revocation of his occupational licenses(s), scheduled in the Board’s Findings and Order at the conclusion of his de novo administrative adjudicatory proceeding to begin October 18, 2011, having been stayed by court order from taking effect, shall take effect on this 17th day of January, 2013; ORDERED, that based on his foregoing violations and his extensive history of rule violations, and as the last portion of his penalty herein, respondent Richard E. Dutrow, Jr. shall be and hereby is declared ineligible to reapply for any license issued by the Board for ten years, to wit, until January 18, 2023; the Board having determined to provide this more lenient period of ineligibility, rather than the permanent license revocation recommended by the Hearing Officer, in order to provide for the possibility that the respondent may rehabilitate himself and deserve reconsideration notwithstanding the severity of his misconduct to date; and ORDERED, that during the period of his revocation, respondent Richard E. Dutrow, Jr. shall not directly or indirectly participate in New York pari-mutuel horse racing, he is denied the privileges and use of the grounds of all racetracks, and he is forbidden to participate in any share of purses or other payment. Every horse is denied the privileges of the grounds and shall not participate in pari-mutuel racing in New York, further, that is (a) owned or trained by him, or any individual who serves as his agent or employee, during his revocation; or (b) for which he, during his revocation, is involved, directly or indirectly, with its training, including but not limited to any arrangements made to care for, train, enter, race, invoice, collect fees or payments, manage funds, employ or insure workers, provide advice or information, or otherwise assist with any aspect of the training of the horse.
***SUBSEQUENT HISTORY-8/8/18 FINDINGS AND ORDER ON APPLICATION TO REOPEN***
Respondent Richard E. Dutrow, Jr. moved, by application dated June 8, 2017, to reopen this matter for the limited purpose of reducing the penalty (a license revocation and fine), based on allegations of newly discovered evidence that, if such evidence had been presented at his hearing, would have resulted in a more favorable outcome for him; and for other compelling reasons pursuant to 9 NYCRR §§ 4550.10(b) and (c)(2). Such rule authorizes the Commission to reopen an adjudicatory proceeding on written application of a party who establishes there is newly discovered evidence that, despite due diligence, was not available at the hearing or establishes other compelling reasons to reopen the matter.
For the reasons stated in this Findings and Order, the Commission, in the exercise of its discretion, denies the application to reopen this proceeding by a vote of 4-2. Voting to deny the application were Chair Barry Sample and Commissioners John J. Poklemba, Jerry Skurnik and Todd R. Snyder. Voting to grant the application were Commissioners John A. Crotty and Peter J. Moschetti, Jr. The conclusions set forth in this Findings and Order are the conclusions of the majority.
Procedural Background
In this matter, the agency[1] charged Dutrow, a horse trainer, with impermissibly possessing in his stable on November 3, 2010 three syringes that also contained a drug (xylazine) but were unlabeled; with an equine drug violation (butorphanol within 96 hours of racing) on November 20, 2010; and with a lack of character and fitness based on these violations and his extensive history of horse racing rule violations. The hearings, held on May 31, June 2 and 3, 2011, focused on three issues: the discovery of the loaded syringes in a desk drawer in his office in his barn at Aqueduct Racetrack, the equine drug positive and his history of prior violations. The hearing officer on September 22, 2011 recommended the charges be sustained and recommended a penalty of two fines of $25,000 each and a permanent license revocation. The Commission issued its Findings and Order on October 12, 2011, accepting such recommendations with the exception of the recommended penalty.[2] The agency instead, in addition to the fines totaling $50,000, imposed a period of 10 years of ineligibility to reapply for a license “to provide for the possibility that the respondent may rehabilitate himself.”
Respondent challenged broadly the agency action in a special proceeding brought in New York Supreme Court, pursuant to Article 78 of the Civil Practice Law and Rules (CPLR). He was granted a stay, and the matter was transferred to the Appellate Division, Third Department, which confirmed the agency Findings and Order and held expressly:
[S]ubstantial evidence—in the form of the positive test, the horse’s veterinary records, and the testimony of veterinarian and pharmacologist George Maylin—supports respondent’s determination that Fastus Cactus received a dose of butorphanol less than 96 hours before racing....Respondent..., in our view, properly rejected the speculative testimony of petitioner’s expert regarding possible alternative explanations for the positive test as insufficient to rebut the presumption [of trainer’s responsibility].
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[U]nlabeled syringes containing xylazine were recovered from petitioner’s desk at Aqueduct, and the chain of custody of those syringes was appropriately established through the testimony of the individuals who handled them.
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[W]hile respondent previously renewed petitioner’s license despite his prior disciplinary history, it properly relied upon that history in tandem with the instant violations to determine that petitioner engaged in conduct that was improper and inconsistent with the public interest and best interests of racing.
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[W]e conclude that the revocation of petitioner’s license for a period of at least 10 years and the imposition of a fine was not so disproportionate to his proven, recurrent misconduct as to shock one’s sense of fairness.
Matter of Dutrow v. New York State Racing and Wagering Bd., 97 A.D.3rd 1034, 1036-37 (3rd Dep’t 2012). The Court of Appeals dismissed an appeal of right upon finding no substantial constitutional questions were involved. 19 N.Y.3d 1064 (2012). Dutrow’s request for leave to appeal was denied. 20 N.Y.3d 855 (2013). The agency then ordered his revocation and period of ineligibility to reapply to begin on January 17, 2013.
Respondent next challenged the agency action in federal court, alleging a violation of his civil rights pursuant to 42 U.S.C. § 1983. The United States District Court for the Eastern District of New York dismissed his complaint because the issues decided in the New York state court proceedings precluded liability of the agency or former members of the Racing and Wagering Board. Dutrow v. New York State Gaming Comm’n, 2014 U.S. Dist. LEXIS 185942 (E.D.N.Y. 2014). The United States Court of Appeals for the Second Circuit affirmed the dismissal. 607 Fed. Appx. 56, 58 (2nd Cir. 2015) (“because Dutrow had a full and fair opportunity to litigate that issue (and did litigate that issue) in the Article 78 proceeding, he was collaterally estopped from relitigating it before the district court”).
Standard to Reopen
The Commission’s rule on reopening an adjudicatory proceeding is, in relevant part:
§ 4550.10. Application to reopen.
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(b) The commission may reopen an adjudicatory proceeding…upon written application made by a party, subsequent to the commission's determination.
(c) Such applications shall be determined in accordance with the following:
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(2) Where a party has appeared at the hearing, the party must establish that there is newly discovered evidence that, despite due diligence by the party, was not available at the time of the hearing or establish other compelling reasons for reopening. This paragraph shall also apply to counsel to the commission.
At the outset, the Commission notes that the decision to reopen is discretionary. The Commission, in exercising its discretion, will determine whether the application demonstrates previously unavailable evidence unknown to Dutrow at the time of the hearing (despite Dutrow’s due diligence) and such unavailable evidence would more likely than not have resulted in a lesser penalty for him.
Significantly, Dutrow does not seek to reopen this proceeding in regard to culpability. For purposes of this application, he accepts that culpability for his violations of New York law has been established. Accordingly, Dutrow does not challenge, that:
The Commission therefore considers, with respect to the alleged newly discovered evidence, the following:
The second and third questions are consistent with the standards for vacating a civil judgment in the New York courts. With a motion to vacate a civil judgment, courts consider whether unavailable evidence would likely have changed the outcome. CPLR § 5015(a)(2) (permitting motion to vacate based on “newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time”). A well-established corollary of this principle is that new evidence that is merely a collateral attack on a witness’s credibility, without establishing new direct, material facts, is generally insufficient to set aside a judgment. Trapp v. American Trading & Prod. Corp., 66 A.D.2d 515, 518 (1st Dep’t 1979).[3] In addition, procedure in civil cases in court allow for reopening of a case upon a showing of “fraud, misrepresentation, or other misconduct of an adverse party.” CPLR § 5015(a)(3). In considering that issue, courts “weigh the likelihood and degree of the false testimony, the affront to the court, and the probability of changing the result against the degree of diligence exercised by the moving party and the time and manner in which the new trial is sought.” McCarthy v. Port of New York Auth., 21 A.D.2d 125, 128 (1st Dep't 1964); see, e.g., Trapp, 66 A.D.2d at 518 (expert witness gave egregiously false background and qualifications); McCarthy, 21 A.D.2d at 128 (testimony shown to be conclusively false); Corley v. New York & H. R. Co., 12 A.D. 409, 410 (App. Div. 1896) (“fictitious and fraudulent display before the jury of [witness’s] alleged infirmities”).
Finally, the Commission considers whether there are other compelling reasons for reopening the proceeding as to penalty.
Having considered all of these questions, the Commission concludes, in its sound discretion, that Dutrow has shown none of the circumstances that would be required for us to exercise our discretion to reopen this proceeding.
Evidence Proffered as Newly Discovered
McDonnell interview
Dutrow alleges that a May 5, 2013 interview of New York Racing Association, Inc. (NYRA) investigator John McDonnell, who was present when Dutrow’s barn was searched on November 3, 2011, indicates that (1) agency investigator Joel Leveson was not truthful when he said McDonnell had selected the barn to be searched in a training exercise conducted by Leveson; (2) McDonnell believed it was highly unusual, based on his 22 years in the New York State Police, “to find evidence so quickly during a search;” and (3) McDonnell, and the other two NYRA investigators, recalled the search ending after the syringes were found, not continuing inside the barn for another hour as Leveson testified.
This evidence does not present any basis for reopening this proceeding. First, the evidence goes only to culpability, which Dutrow does not challenge. For purposes of this application, Dutrow has effectively admitted the violations. Evidence that calls into question whether the violations were committed is not relevant to potential reconsideration of the penalties imposed, which is the relief Dutrow seeks in his application.
Second, Dutrow fails to show why he could not have obtained this evidence by the exercise of due diligence, before or at his hearing. Members of Dutrow’s staff were present at the time of the search and therefore Dutrow knew or should have known that McDonnell was a potential witness. The agency also provided disclosure to Dutrow in February 2011, putting him on notice of persons present at the search. McDonnell could have been subpoenaed to testify at the hearing. See Racing Pari-Mutuel Wagering and Breeding Law § 245. Instead, though, McDonnell states that Dutrow did not contact him before the hearing. Nor is there any valid explanation for the lengthy delay before the application to reopen was made. Dutrow’s legal representatives instigated the interview of McDonnell after McDonnell spoke with Dutrow’s private investigator in early 2013, after the hearing concluded. Although McDonnell asserted, strangely, that he would voluntarily provide his story only to “law enforcement,” McDonnell said that he would give a statement pursuant to a subpoena. Subpoenas are available to obtain the testimony of a non-party witness. Id.
Third, the interview of McDonnell does not contradict the direct, material facts in the record of this adjudicatory proceeding. According to McDonnell’s interview, he was present during the search and he saw Leveson open a desk drawer and move some papers in the drawer, which exposed a cigar-size box. McDonnell saw Leveson open the box and pull out three syringes containing fluid. While McDonnell “was a little uncomfortable with the sudden discovery of the syringes,” he says he did not see Leveson plant them.
The question of who selected the barn, and whether a further search was done after the syringes were found and stored in Leveson’s car, are collateral issues to the penalty, which is all that Dutrow seeks have reconsidered. Again, the application under consideration does not challenge the findings as to his conduct. In any event, the selection of the barn was not an important factor in the evidence against respondent, and Leveson was unsure whether it was McDonnell who had made the selection, as Leveson testified during cross-examination:
Q: Who told you to go to Mr. Dutrow’s barn?
A: It was probably John McDonnell.
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Q: Did you ask him why?
A: I just made assumptions.
Q: Okay. What assumptions did you make?
A: The assumptions were that I asked them to pick or choose anybody they wanted to—for the group to go to somebody who is an active trainer who has a lot of horses and runs a decent barn. Those are the parameters.
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Q: And on the morning of the 3rd you were told to go to the Dutrow barn?
A: Correct.
Q: You were told by Mr. McDonnell?
A: I believe it was him.
Hearing transcript of June 2, 2011 (“TR”), at 250, 250, 251-52. It is also immaterial whether a further search (which found nothing) was conducted at the barn on November 3, 2011, or whether Leveson was confusing the barn searches he had conducted with the same NYRA investigators the day before. Leveson testified:
Q: And what were your duties that day?
A: Actually, I’d been asked by NYRA chief of investigations, they had two new—new to the backstretch investigations...and he just wanted me to go with them and show them what was entailed in working in the backstretch, particularly in the field of drugs and drug intervention and how we, you know, worked on the backstretch.
Q: And in the course of doing that did you conduct any barn searches?
A: We did. We actually started the day before the 3rd, on the—on November 2nd I met with the investigators in sort of an informal classroom [then] at the end—the middle of that morning, I think, at Belmont that day, we probably went to two or three trainers’ barns. We took, basically, large barns...barns that were well organized so that...we would see drugs that were allowable on shelves, training drugs or non-veterinarian type paraphernalia and so that I could discuss with them what was allowed and what was disallowed.
Q: On November 3, 2010 did there come a time that you went with them to do a barn search at Aqueduct?
A: Yes. I think I met them at Belmont that morning. We spent about an hour at Belmont talking about the day before. And then they traveled in their vehicle, I traveled in mine...and we met at Barn 10, Aqueduct.
TR at 197-98. Whether the search ended after the syringes were found and secured in Leveson’s vehicle on November 3, 2010, or not, is a collateral issue. Further, Leveson testified the NYRA investigators left before he was finished (TR 210). At best, this evidence tends, if anything, to impeach or contradict other record evidence, which is an insufficient basis for a motion to reopen. See People v. Taylor, 246 A.D.2d 410, 411 (1st Dep’t 1998) (citing People v. Salemi, 309 N.Y. 208 (1955) (citing People v. Priori, 164 N.Y. 459 (1900))) (among standards for reopening criminal proceeding); Trapp, 66 A.D.2d at 518 (collateral attack generally insufficient to reopen civil lawsuit).
Gonzalez interview
Dutrow further alleges that an interview on August 5, 2013 of Daniel Gonzalez, who was respondent’s assistant trainer at the time of the search, indicates that NYRA investigator Danice Vasquez had visited the Dutrow barn unaccompanied for 40 minutes earlier on November 3, 2011, a different NYRA official had selected the barn to be searched and NYRA officials were biased against Dutrow for criticizing other trainers. Gonzalez further alleges that Vasquez was fired by NYRA a short time later.
This evidence does not present an adequate basis for reopening this proceeding. Evidence that calls into question whether the violations were committed is not relevant to potential reconsideration of the penalties imposed for what is now, for purposes of this application, deemed to be admitted illegal conduct.
Second, Dutrow fails to show how he did not have Gonzalez’s evidence before the hearing. Dutrow should have known Gonzalez was present at his barn on November 3, 2011. Dutrow provides no explanation for not having presented Gonzalez’s testimony at the time of the hearing. Furthermore, according to Vazquez’s interview, Dutrow did not contact her before the hearing. Even if this evidence were relevant to penalty, there is no reason why it could not have been presented at the original hearing in this proceeding.
Third, the Gonzalez statement does not contradict any direct, material facts in the record of this proceeding. Gonzalez does not allege that he observed Vasquez doing anything improper, only that she was there earlier in the day. There was evidence that the box in which the syringes were found was not planted—another assistant trainer admitted that the box that was found in Dutrow’s desk drawer had been present for about one week (TR 202). There is no evidence that Vazquez’s departure from NYRA had anything to do with the Dutrow search; indeed, NYRA investigator John Clyne, a former detective in the New York City Police Department, was interviewed on May 17, 2013 and stated that he did not suspect any improper activities during the search, was familiar and directly involved with the subsequent termination of Vasquez, and said such termination had “absolutely” nothing to do with the barn search. See Taylor, 246 A.D.2d at 411; Trapp, 66 A.D.2d at 518.
Other Compelling Reasons
Dutrow’s application also asserts a litany of other reasons to reopen. Among them were the following issues, each of which the Commission squarely considered and the Appellate Division rejected as a basis to overturn the agency’s Findings and Order:
Once again, each of these arguments goes to culpability for the violations, not to penalty. These arguments are not relevant here, where, for purposes of this application, Dutrow admits to culpability. In addition, mere denials of knowledge are an insufficient basis to question either a trainer’s responsibility for a drug positive, Matter of Belanger v. N.Y. State Racing & Wagering Bd., 114 A.D.2d 609, 609 (3rd Dep't 1985) (“lack of knowledge on the part of petitioner and his employees is insufficient to overcome the higher standard of liability than that of merely personal knowledge, which the trainer's responsibility regulation imposed on petitioner”), or possession of unlawful paraphernalia at a race track. Matter of Spano v N.Y. State Racing & Wagering Bd., 72 A.D.3d 404, 405 (1st Dep't 2010). Finally, the Commission did not rely upon any proof of knowledge when it decided on the appropriate penalty to impose.
Dutrow also raises arguments that do go to the issue of penalty. Again, the Appellate Division rejected each as a basis to overturn the agency’s Findings and Order:
We see no reason to exercise our discretion to reconsider the initial imposition of penalties that our predecessor agency duly determined and that have been considered and affirmed through full and fair litigation in the courts of New York.
Dutrow makes other arguments in his application, which we now address, that bear upon his penalties.
Butorphanol
Dutrow asserts that New York now permits butorphanol to be used within 96 hours of racing at the concentration that was found against him in this proceeding. This assertion is inaccurate. The Commission continues to prohibit the use of butorphanol within 96 hours of racing. 9 NYCRR § 4043.2(g)(4). The Commission rules state expressly that abiding by a threshold does not disprove a violation of other rules, 9 NYCRR § 4043.3(b) (per se threshold rules); rather, the per se threshold rules are an additional means of proving an illegal administration, along with the restricted time periods.[4] Dr. George Maylin testified in this proceeding that this drug had the potential to affect the race and is 10 times more potent than morphine, contrary to Dutrow’s assertion that his butorphanol violation was inconsequential. There is no compelling reason to reopen this proceeding on the basis of the adoption of per se thresholds that have not obviated the existing restricted time period rules.
Administration of xylazine
Dutrow also inaccurately claims his horses were never given xylazine. The record in this proceeding is otherwise. See TR 276, 294. The Commission did not charge or find, moreover, that Dutrow administered xylazine, but rather that he possessed hypodermic equipment and an unlabeled container of xylazine at Aqueduct Racetrack. See supra at pp. 4-5 and Spano, 72 A.D.3d at 405:
Substantial evidence supports respondent's determination that petitioner possessed hypodermic equipment on race track grounds and that the needles contained unidentified liquid substances….Moreover, petitioner's attempt to apply the high burden of proof imposed by the Penal Law, which makes it a criminal offense to knowingly possess, for example, a controlled substance (see Penal Law § 10.00[8]; § 220.03), to the violation of the rule promulgated by respondent, which prohibits persons other than certain veterinarians to "have or possess [hypodermic equipment] in or upon the premises of a licensed harness race track"...is unavailing....
There is no compelling reason to reopen this proceeding on the basis of an inaccurate factual assertion of only collateral significance.
Additional character witnesses
Dutrow indicated in his application to reopen that he could present additional character witnesses. Subsequently, one of his attorneys submitted some letters of support, an online petition to give him a second chance in racing signed electronically by more than 2,400 persons and supportive articles written by a racing journalist.[5] There was no showing that such evidence of Dutrow’s excellent horsemanship, his skill in caring for horses and the importance of horseracing to his life was not available, through the exercise of due diligence, for him to present at his hearing in 2011. On the contrary, Dutrow presented character witnesses who gave similar testimony—including that Dutrow took fine care of his horses—that was part of the Board’s original record in in this proceeding. The Board employees who testified at his hearing, in fact, praised Dutrow as an outstanding trainer who took tremendous care of his horses. The Hearing Officer concluded, notwithstanding Dutrow’s attributes, that his numerous past equine drug violations showed he would continue to commit such violations and recommended that Dutrow never again be issued a trainer license in New York. The Board members modified this recommendation to permit Dutrow to reapply after 10 years, despite his extensive history of rule violations, to afford Dutrow the opportunity to demonstrate his rehabilitation and that he deserved reconsideration after such time. The submission of additional character evidence would not have affected the Board’s decision in 2011.
Dutrow makes none of the required showings to warrant a reopening of his proceeding. He does not demonstrate such witnesses were unavailable at his hearing. He did present character witnesses at his hearing and additional ones would unlikely alter the outcome. There is no compelling reason to allow repetitive collateral evidence.
History of violations
Dutrow presents an incomplete recitation of his extensive history of rule violations and alleges the hearing evidence of his violations was deficient. The New York records establish: four equine drug violations since 2001; an unlawful possession of injectable materials on the backstretch in 2001; a claiming rule violation involving deceptive behavior in 2005; and a license suspension violation by training while he was suspended in 2007. The ARCI records evince nine other equine drug violations since 2004, and Florida records show an additional violation that had not been reported to ARCI. The ARCI records showed licensing actions for falsifying his applications in California (1979), New York (1995), Delaware (2010) and Kentucky (2011), and for participating without a valid license in Maryland (2004), Delaware (2004) and Kentucky (2009). The transcript of Dutrow’s licensing interview in Kentucky revealed that he falsely had a horse on the grounds of a NYRA track (despite being suspended as a trainer by New York) and, to avoid being detected, obtained a false timed workout for the horse by taking a different horse to Monmouth Park and working under its name (which had major consequences when the first horse won the Queens Plate at long odds), for which the ARCI and New Jersey records show he was sanctioned by New Jersey (2007). At the hearing in this proceeding (TR 524-26), Dutrow falsely denied his misconduct during his claiming violation in New York, despite his previous stipulation to the facts. In addition, there are numerous other violations in Dutrow’s extensive history of horse racing rule violations. Respondent’s comparisons to other penalties, which include more than one license sanction for 10 or more years and fines greater than his, and fail to explain why New York should be required to follow the sentencing practices of other states, are unavailing. Further, the appellate division expressly upheld his minimum 10-year revocation. There is nothing in Dutrow’s violations history to suggest that there is any compelling reason to reopen this proceeding to reconsider penalties.
Post-revocation conduct
Finally, Dutrow presents some evidence of his post-revocation conduct and argues that this provides a basis for reconsideration of his penalties. Dutrow asserts that he participates with the charitable entity Horse Abilities, which exposes disabled persons to horses. This participation is admirable, but Dutrow provides no specific substantiation of his volunteer activity other that an electronic mail message from horse owner Michael Dubb, who discovered inadvertently that Dutrow was donating his time, which an official at the charity told him was for three hours a day, two times per week, in November 2015, and a belated letter from the charity that Dutrow came to them in 2015 and his assistance turned out to be wonderful. This is less than compelling evidence of Dutrow’s involvement at a significant level in volunteer activities, much less of rehabilitation or actions showing he ought to be relicensed more quickly than after the minimum of 10 years of ineligibility, which the Board, when departing from the permanent license revocation recommended by the Hearing Officer, provided him “in order to provide for the possibility that the respondent may rehabilitate himself and deserve reconsideration notwithstanding the severity of his misconduct to date.” Findings and Order dated October 12, 2011.
Respondent has litigated the merits of the charges against him to the fullest, in this agency proceeding and in every court available to him on review. The charges against him have been established, with a full and fair opportunity provided to him to challenge the charges and present his arguments against them. Dutrow states that he is not contesting culpability in this application, yet the bulk of his arguments here are, in fact, another attempt to litigate the merits of this matter. Dutrow’s application fails to demonstrate that there is any newly discovered evidence that was not available to him at the time of hearing despite his diligence. To the contrary, the evidence he now proffers as newly discovered could have been presented at his hearing had he been diligent to discover it. The alleged new evidence also does not constitute a sufficient basis to reopen or modify his penalty. Furthermore, Dutrow’s application presents no evidence of compelling interest to revisit his penalties, which the New York courts have already determined are lawful. Accordingly, it is hereby ORDERED that Respondent’s application to reopen is denied.
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1. The New York State Racing and Wagering Board was merged into the Gaming Commission on February 1, 2013. See L. 2012, c. 60, part A; Racing, Pari-Mutuel Wagering and Breeding Law §§ 117 (former racing and Wagering Board functions transferred to Gaming Commission); 120 (functions of Racing and Wagering Board transferred to and assumed by Gaming Commission); 121 (completion of unfinished business); 122 (continuation of rules and regulations); 125 (pending actions and proceedings).
2. Dutrow’s application failed to note that he had not yet paid the fine imposed upon him. Dutrow subsequently paid the fine while this application was pending, with a cover letter from his counsel dated November 11, 2017.
3. Similarly, in a motion to vacate a criminal judgment, pursuant to the Criminal Procedure Law, newly discovered evidence must be, among other things, “of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant.” CPL § 440.10(1)(g). More specifically,
in order to satisfy the statute, the proffered evidence must meet six criteria: it must be of such nature that it would probably change the result if a new trial were held; it must have been discovered after trial; it must have been undiscoverable prior to or during trial notwithstanding defendant's exercise of due diligence; it must be material to the issue; it must not be merely cumulative; and it must not merely impeach or contradict evidence given at trial….
People v. Taylor, 246 A.D.2d 410, 411 (1st Dep’t 1998) (citing People v. Salemi, 309 N.Y. 208 (1955) (citing People v. Priori, 164 N.Y. 459 (1900))).
4. Dutrow makes a similar assertion concerning the validity of his mepivacaine (2003) and clenbuterol (2004) past violations in New York and is wrong for the same reasons, including that the adoption of per se thresholds has not obviated the existing restricted time period rules, which is explicitly acknowledged at 9 NYCRR § 4043.3(b).
5. The decision to license is entrusted to the disinterested judgment of the state agency that regulates horse racing, of course, not to the members of the racing community. Matter of Fink v. Cole, 302 N.Y. 216 (1951). |
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