05/31/2011 7:57PM

Racing Board witnesses testify, as Dutrow's lawyer questions process during licensing hearing

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Tom Keyser
Trainer Richard Dutrow Jr.'s career may be on the line as the New York State Racing and Wagering Board holds a hearing into whether he should be licensed.

SCHENECTADY, N.Y. - The attorney representing Richard Dutrow Jr. in his fight with the New York State Racing and Wagering Board over his trainer’s license believes there is an impropriety over the way the state is going about penalizing him for his two most recent violations and asked the board not to consider revocation as a punishment.

Michael Koenig, who only took over Dutrow’s case two weeks ago, filed an oral motion with the board “to have stricken the revocation penalty as being sought by the board.” Koenig made his motion Tuesday on the first day of a show cause hearing held by the board at its offices in Schenectady during which it is expected to consider revoking or suspending Dutrow’s license due to a history of rule violations.

“A livelihood and a life are at stake over the next few days,” Koenig said in his opening statement. “A man’s livelihood, his career, and his reputation all deserve better than the penalty the board seeks and the way they’ve gone about it.”

Dutrow, 51, currently faces 90 days worth of suspensions after one of his horses tested positive for a banned substance after winning a race at Aqueduct on Nov. 20 and after a Nov. 3 barn search resulted in three syringes, loaded with the medication xyzaline, being found in his Aqueduct barn office.

Koenig argued that the only reason the board is considering revoking Dutrow’s license is because he has chosen to appeal his two most recent rules violations. Dutrow has appealed those suspensions, which enables him to train in New York, where his license is valid through Aug. 5.

“Seeking revocation is punishment for pursuing his appeal,” Koenig said. “It’s an affront to due process.”

Koenig said the State Racing and Wagering Board only ordered this hearing after Ed Martin, the president of the Association of Racing Commissioners International, sent a letter to the board in February “to show cause as to why his license should not be revoked given what appears to be a lifetime pattern of disregard for the rules of racing.”

Martin claims that since 1979, Dutrow has been sanctioned at least 64 times in nine different states.

Last month, the Kentucky Horse Racing Commission, denied Dutrow a license. With that denial on his record, Dutrow did not even apply for a license in New Jersey where he routinely raced horses at Monmouth Park.

Martin is a former executive director of the State Racing and Wagering Board. John Sabini, the chairman of the State Racing and Wagering Board, is the secretary/treasurer of the Association of Racing Commissioners International as well as a board member. Koenig said the board’s decision to hold the hearing following Martins’s letter is “at best an appearance of impropriety and at worst collusion.”

Dutrow was present at Tuesday’s hearing, and sat mostly silent during the 4 1/2 hours of testimony provided by two State Racing and Wagering Board employees - called by attorney Rick Goodell - who detailed how samples are taken and sent out for testing as well as how investigations are conducted.

Dutrow, dressed in a blue dress shirt and jeans, displayed some light-heartedness at times greeting the state’s first witness, John Jones, a longtime State Racing and Wagering Board assistant supervisor who works at the test barn of New York Racing Association tracks whom Dutrow knows for more than 20 years.

“John, you can’t be tough on me man, we got back a long way John”’ Dutrow said to Jones.

At one point during his testimony, Jones said of Dutrow, “he’s always been straight up with me.”

Jones testified that a shipment of urine and blood samples - which also contained the three syringes that were found in Dutrow’ barn on Nov. 3 - were returned to the track because they had been sent to the wrong address. There was no finding or suggestion that any of that evidence had been tampered with.

The state’s other witness, Angel Gonzalez, was the one who notified Dutrow and his staff that Fastus Cactus had tested positive for butorphanol, a painkiller after the Nov. 20 race. Gonzalez testified that none of the people he interviewed - including veterinarians Dr. Greg Bennett or Bill Keegan - admitted to injecting Fastus Cactus with the medication. He testified that during a phone conversation with Dutrow the trainer told him he’d be crazy to allow a vet to inject a horse that is physically sound with a painkiller, according to testimony read by Koenig and corroborated by Gonzalez.

Gonzalez said that following the notification of the positive he and a member of his staff did a search of Dutrow’s Aqueduct barn on Dec. 18, during which no unauthorized drugs were found.

Koenig attempted to create a shadow of doubt over the chain of custody regarding the processing of the syringes. Gonzalez said he was given the syringes by state investigator Joel Leveson, but Gonzalez’s name doesn’t appear on a chain of custody sheet that was entered as evidence.

In addition to his attorney, Dutrow appeared at the hearing with his assistant trainer, Michelle Nevin, and a publicist, Rachel McEneny.

“I’m hoping that it went good for us,” Dutrow said after the hearing. “I want to be cleared up from everything. I’ve always had a bad reputation - always. Like I’ve told you guys all along I’ve done wrong things in the past so that follows me around.”

The hearing was scheduled to continue Thursday at 9:30 a.m. and will likely go into Friday as well. Dutrow, who drove back downstate following the hearing, is expected to testify on his own behalf. A variety of character witnesses may also testify, including possibly Joe Torre, the former Yankees and Dodgers manager for whom Dutrow has trained a few horses. Torre’s testimony could be done via video-conferencing.