New York Codes, Rules and Regulations › Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION › Chapter VI - General Regulations › Part 622 - Uniform Enforcement Hearing Procedures › Section 622.11 - Evidence, burden of proof and standard of proof

Current through Register Vol. 46, No. 28, July 10, 2024
(a) 'Evidence.'
(1) Before testifying, each witness must be
				sworn or make an affirmation.
(2)
				In order to ensure a fair and efficient hearing process, the ALJ may limit the
				repetitious examination or cross-examination of witnesses or the amount of
				corroborative or cumulative testimony.
(3) The rules of evidence need not be
				strictly applied; provided, however, the ALJ will give effect to the rules of
				privilege recognized by New York State law.
(4) Every party has the right to present
				evidence and cross-examine witnesses.
(5) Official notice may be taken of all facts
				of which judicial notice could be taken and of other facts within the
				specialized knowledge of the department. When official notice is taken of a
				material fact not appearing in the evidence in the record and of which judicial
				notice could not be taken, every party must be given notice thereof and must on
				timely request be afforded an opportunity prior to the final order of the
				commissioner to dispute the fact or its materiality.
(6) Hearsay. The proponents of hearsay
				evidence must demonstrate that the evidence offered falls within one of the
				following exceptions:
(i) Any writing or
				record, whether in the form of an entry in a book or otherwise, made as a
				memorandum or record of any act, transaction, occurrence or event, if the ALJ
				finds that it was made in the regular course of any business and that it was
				the regular course of the business to make it, at the time of the act,
				transaction, occurrence or event, or within a reasonable time thereafter. All
				other circumstances of the making of the memorandum or record, including lack
				of personal knowledge by the maker, may be proved to affect its weight, but
				will not affect its admissibility. The term business includes a business,
				profession, occupation and calling of every kind;
(ii) Where a public officer is required or
				authorized by special provision of law, to make a certificate or an affidavit
				to a fact ascertained, or an act performed by the officer in the course of the
				officer's official duty, and to file or deposit it in a public office of the
				State, the certificate or affidavit so filed or deposited is prima facie
				evidence of the facts stated;
(iii)
				A statement signed by an officer or a qualified agent or representative having
				legal custody of specified official records of the United States or of any
				state, county, town, village or city or of any court thereof, or kept in any
				public office thereof, that a diligent search of the records was made and no
				record or entry of a specified nature was found, is prima facie evidence that
				the records contain no such record or entry, but only if the statement is
				accompanied by a certification that legal custody of the specified official
				records belongs to that person. The certification must be made by a person
				described in CPLR 4540;
(iv) All
				maps, surveys and official records affecting real property, which are on file
				in the State in the office of the registrar of any county, any county clerk,
				any court of record or any department of the State or City of New York are
				prima facie evidence of their contents;
(v) All written statements, charts,
				tabulations and similar data offered in evidence at the hearing, upon a showing
				that the evidence offered is reliable, relevant and probative;
(vi) Exceptions provided by CPLR Article 45
				or other law; or
(vii) The evidence
				offered is shown to be reliable, relevant and probative.
(7) By permission of the ALJ, samples may be
				displayed at the hearing and may be described for purposes of the record, but
				need not be admitted in evidence as exhibits.
(8) Where the testimony of a witness refers
				to a statute, a report or a document, the ALJ must, after being satisfied of
				the identity of the statute, report or document, determine whether it will be
				produced at the hearing and physically made a part of the record or if it will
				be incorporated in the record by reference.