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Denied Commission Stay, Trainer Noda Fights NYSGC Penalty in Court

In an effort to fight a 90-day suspension and $5,000 fine for “striking a horse excessively” during a 2021 workout at Saratoga Race Course, trainer Orlando Noda has commenced proceedings in Schenectady Supreme Court that he hopes will prove the New York State Gaming Commission (NYSGC) acted unlawfully last month when it rejected an appeal hearing officer's recommendation that his case be dismissed without penalization.

Noda's legal filing is known as an Article 78 review, which pertains to a New York state law by which a petitioner can ask a court to review a decision or action of a state official or administrative agency.

Article 78 filings have a reputation for being costly to litigate and very time consuming, sometimes dragging on for months or even several years in the court system.

Although the two cases are not related, Noda's penalty got handed down during the same Dec. 12 NYSGC meeting as a ruling imposed upon Richie Gazer, the longtime New York Racing Association head clocker who was suspended 30 days and fined $2,500 for “altering a published work of a horse to make the horse eligible to race.”

But taken together, those two same-day adjudications share a commonality in that both decisions by the NYSGC represented a forceful rejection of each hearing officer's months of work in conducting the appeals and writing up the reports.

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 NYRA tracks.

Although such outright rejections are unusual, most racing commissions nationwide are not bound to accept the opinions of hearing officers, who are often attorneys, that they hire to hear appeals.

In both Noda's and Gazer's cases, their respective attorneys had asked the commission for a stay of their penalties pending Article 78 filings. Both were denied last month by the NYSGC.

“I asked the commission for a stay as a courtesy,” Drew Mollica, Noda's attorney, told TDN. “I was denied on Dec. 20. I was in court Dec. 28, and the judge issued a stay. He can continue training. We have filed our Article 78 and we are pursuing a full and fair review of this unjust decision. In this case, the record is clear: There never was, and there is not now, any evidence that Mr. Noda did what they accused him of, and the hearing officer knew that.”

The hearing officer who oversaw Noda's appeal, S. David Devaprasad, wrote in his Nov. 1 report that, “The regulations Respondent is alleged to have violated…are impermissibly vague and [there are no written] standards as to what constitutes the proper or improper use of a crop or whip while training a horse.”

The report continued: “The testimony at the Hearing of the Commission's single eyewitness of the alleged incident was simply not sufficient (nor any more credible than Respondent's testimony in defense) to establish that Respondent engaged in any action detrimental to the best interest of racing generally or was guilty of any improper, corrupt, or fraudulent act or practice…”

Back on Dec. 12 NYSGC chairman Brian O'Dwyer disagreed. In reading Noda's decision into the record, he 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.”

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 in the two cases.

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Trainer, Clocker Stunned as NYSGC Rejects Advice of from Hearing Appeal Officers

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.

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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NYRA Racing Secretary Doleshel to Appeal Fine

Keith Doleshel, fined $2,000 by the New York Gaming Commission for “failing to conduct business in a professional manner,” will appeal that ruling before the commission, and has retained attorney Drew Mollica to represent him, according to Mollica.

The ruling stemmed from an incident at Saratoga in which an unauthorized agent was allowed to claim a horse this past summer. The New York State rules of racing require that an individual be licensed with the Gaming Commission and registered with The Jockey Club. After the claim, NYRA officials informed the Gaming Commission of the error, and Doleshel was fined on October 20.

The fine was one of four levied upon NYRA employees this year: Doleshel was fined $2,000 in April after a horse not fully registered as a New York-bred competed in two New York-bred races; NYRA Senior Vice President of Racing Frank Gabriel was fined $4,000 for failure to follow proper claiming protocol, and clocker Richie Gazer was fined $2,500 for reporting the half-mile time of a five-furlong workout.

“Keith Doleshel is a valued employee who conducts himself with a high degree of professionalism at all times,” said NYRA's Vice President of Communications Pat McKenna. “He has every right to appeal this decision, and NYRA continues to question the rationale for issuing significant financial penalties for alleged errors that are inadvertent and administrative or clerical in nature.”

“Anyone who knows Mr. Doleshel during his tenure at NYRA knows that he always conducts business in a professional manner,” said Mollica, “and he denies that he has not done so in this case. He has never been able to confront this charge, because he has never been told what he did wrong. As such, the scarlet letter of unprofessionalism cannot stand and we must appeal.”

“Mr. Doleshel had a competent person acting as the claims clerk,” said Mollica. “A mistake may have been made in the office or by The Jockey Club, but it had nothing to do with him acting unprofessionally.”

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After Graphics Error, NYRA Starters Run For Purse Money Only

A brief glitch in the NYRA graphics package that covered the days scratches resulted in Striking Melody (Majestic City) running for purse money only, by order of the stewards, in Saturday's first race at Aqueduct.

At 10:32 a.m., 77 minutes before post time for the first race, Striking Melody was listed as a scratch in graphics that appeared in the upper right hand corner of NYRA's television feed. The listing of the scratch appeared for about two seconds before it came off the screen and at no other point during the day was the horse listed as scratched. In addition, the listing of the scratch appeared as track announcer John Imbriale was announcing scratches for the first race. Imbriale never mentioned Striking Melody but did announce that the six horse, Caribbean Breeze (Mendelssohn) was scratched.

But what appeared to be an innocuous mistake was taken seriously by the stewards, who withdrew Striking Melody from the wagering. In addition, with the horse scheduled to run as an entry with Our Rosie Diamonds (Bellamy Road), both horses ran as non-betting interests.

Our Rosie Diamonds finished third and Striking Melody was seventh.

NYRA management said they were frustrated by the decision.

The graphics error appeared for about two seconds, as shown in the clip below.

“At some point, common sense has to come into play,” said a NYRA official who asked not to be named.

NYRA officials estimated that the move by the stewards resulted in a loss of handle between $150,000 and $200,000.

“NYRA would certainly welcome the opportunity to fully review the circumstances of this matter with the Board of Stewards,” said NYRA spokesperson Pat McKenna.

Braulio Baeza Jr., the steward representing the New York Gaming Commission, did not return a phone call seeking comment.

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