by T.D. Thornton & Bill Finley
The New York State Gaming Commission (NYSGC) on Monday adjudicated two unrelated penalty appeals by a clocker and a trainer by flat-out rejecting two separate hearing officers' recommendations that those cases be dismissed without penalization.
In both instances, the commissioners voted unanimously to impose the original penalties that had been handed down by Braulio Baeza, Jr., the NYSGC state steward at the three New York Racing Association (NYRA) tracks.
Monday's vote means trainer Orlando Noda now must pay a fine of $5,000, serve a 90-day suspension, and complete an anger management course prior to being reinstated for “for striking a horse excessively while working the horse out at Saratoga Race Course on Aug. 5, 2021,” according to the NYSGC.
And Richard Gazer, a longtime NYRA clocker, has been fined $2,500 and suspended 30 days “for altering a published work of a horse to make the horse eligible to race,” the NYSGC ruled.
The outright rejections of the officers' combined days of conducting the hearings and their months spent writing up the reports is somewhat unusual. But in a number of jurisdictions, racing commissioners are not bound to accept the opinions of the officers they hire to hear appeals.
Drew Mollica, who represents Noda, told TDN in a phone interview he was stunned by the NYSGC's decision.
“This is crazy. I was just telling my colleagues, 'I win, but I lose,'” Mollica said.
“This is madness. The hearing officer is the one who heard the evidence. On what basis, what evidence, did the commission use to overturn the hearing officer's recommendation?” Mollica asked rhetorically.
Noda, who has been training since 2019, is also licensed as an exercise rider.
In his reading into the record of the decision, NYSGC chairman Brian O'Dwyer said that, “The commission duly deliberated and considered this matter, and determined by a 6-0 vote to reject the hearing officer's report and recommendations. In doing that, commissioners reviewed the entire record, and established by a preponderance of evidence that Noda's conduct was improper and detrimental to the best interest of racing, and determined that the appropriate penalty was that which was given by the stewards.”
Mollica said he will confer with Noda about using “every legal remedy at his disposal” to fight the commission's order, “because the hearing officer vindicated him and found that he did nothing wrong.”
Gazer's penalty stems from a May 19, 2022, ruling in which the commission stated he “alter[ed] a horse's workout time while training at Belmont Park.”
The horse in question, Papi On Ice (Keen Ice), was initially credited with a five-furlong work in 1:04.60. The work was later changed to a half-mile in :51.33.
Because Papi On Ice had been beaten more than 25 lengths in a previous start, that result triggered a precautionary placement on NYRA's “poor performance” list. In order to get off that list, a horse must work a half-mile in :53 or faster. But the rule does not allow for a workout farther than a half mile.
Because Papi On Ice's workout was initially published as a five-furlong move, the racing office would not accept the colt's entry for a race.
Gazer told DRF.com back in May that the time of the work was not changed, but that the distance was shortened to comply with NYRA's rule. He did not time Papi On Ice himself, but a subordinate clocker told him the horse did work a properly timed half mile as part of the longer five-eighths breeze.
“This is a joke. It really is,” Gazer told TDN Dec. 12. “I've been doing this for 40 years. The horse was on the other training track, went a half-mile, and galloped out five-eighths and the trainer, Randi Persaud, wanted the five-eighths time. But they have that rule where he had to have a half-mile workout. It's a stupid rule. They called me up and I said I would change it. It was no big deal. It was either :51 for the half or 1:04 and something for five-eighths.”
Gazer continued: “We had a seven-hour hearing, [the hearing officer] recommended that they drop all the charges. And then they do this. It doesn't make any sense.”
Chairman O'Dwyer said Monday that the commissioners saw it differently.
“The commission reviewed the entire record [and] established the violation as a matter of fact,” O'Dwyer said. “And in particular, found that the conduct was improper in relation to commission rule 4042.1(f).”
That rule prohibits “improper, corrupt or fraudulent” acts or practices in relation to racing or conspiring or assisting others in such acts or practices.
Along with O'Dwyer, NYSGC commissioners John Crotty, Peter Moschetti, Jr., Christopher Riano, Marissa Shorenstein and Jerry Skurnik all voted in favor of rejecting the hearing officers' recommendations not to penalize the two licensees.
The commissioners did not debate or discuss the details of the two cases during the open, public meeting, which is standard for the way the NYSGC usually issues appeal outcomes after a hearing officer issues a report.
Based on past practice, the NYSGC generally receives such reports and takes its vote on the hearing officer's recommendation at some point before the meeting, and the chairman then reads the results into the record when the meeting goes into session, explaining the vote in one or two sentences.
Karen Murphy, an attorney who represents Gazer, told TDN in an email that, “In the 30 years that I have been practicing before the Gaming Commission (and its predecessor) this has never happened….The decision in this matter was dependent on the credibility of the proffered witnesses. In recommending that all the charges be dismissed, including a 'fraudulent, corrupt act' charge, the designated Hearing Officer made a determination in favor of Mr. Gazer's credibility. Today, the Commission rejected that credibility [and] did so without giving any specific reasons or findings…”
Murphy added that the NYSGC's ruling against her client amounted to a failure of the open-government test, “and in doing so abjectly failed in its obligations under law to Mr. Gazer. We look forward to righting this wrong.”
The penalties for Noda and Gazer will go into effect within a few days upon formal issuance of the commission's findings and order.
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