Respondent, a Housing Authority was created by the Legislature to, inter alia, build and operate low-income apartments in New York City. Respondent is required by federal and state law to provide safe, decent, and sanitary housing to public housing tenants. Pursuant to 42 USC § 1437d(l)(6), leases must include the following provision: Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy.
A New York Criminal lawyer said that, by lease, petitioner agreed that in exchange for residing in apartment located at Bronx, New York, neither she nor any member or guest would engage in “any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the development by other residents or by the landlord’s employees” or “any violent or drug-related criminal activity on or off the leased premises or the development,” and that respondent may terminate the lease for “violation of its material terms.”
Thereafter, New York City Police Department Detective searched petitioner’s apartment pursuant to a warrant issued upon proof of secured drug buys from petitioner and her brother, a member of her household. The search yielded two ounces of marijuana split among 37 small plastic bags and two larger bags, $419.00 in cash, all of which were found in a safe in petitioner’s bedroom, and codeine pills, which were found on petitioner’s night stand. He arrested petitioner, who pleaded guilty to disorderly conduct and was sentenced to two days of community service.
By letters, respondent’s manager asked that petitioner meet with the management office in connection to the possible termination of her lease for non-desirability. When she failed to appear, a third letter was sent advising her that her case was being forwarded to the Tenancy Administration Department for review.
On or about March 15, 2010, respondent served petitioner with a notice and specification of charges alleging that she and her brother unlawfully possessed and sold marijuana, conduct constituting non-desirability and a breach of the rules and regulations, and providing that a hearing on these charges would be held.
According to petitioner, she and her brother smoke marijuana, the marijuana seized had been purchased two or three days before, that she keeps the marijuana under lock and key because her brother is “a thief,” she has sold neither marijuana nor pills, the pills found on her night stand were codeine prescribed to her, and she pleaded guilty to disorderly conduct, a violation. Petitioner testified as to the controlled buys and his execution of the search warrant.
By written decision, the hearing officer found detective credible, and that petitioner “was aware that the safe contained marijuana and packaging and that the evidence established that the safe was located in her bedroom, and under tenant’s dominion and control.” Although she determined that there was insufficient evidence to show that petitioner was selling codeine, she concluded that the marijuana and money found during execution of the search warrant and the detective’s testimony about the controlled buys established that petitioner possessed the marijuana for sale or distribution and that her unlawful possession of the marijuana “endangers other residents.” The hearing officer thus sustained the charges against petitioner and terminated her tenancy.
In an Article 78 proceeding, a court may not consider arguments or evidence not presented during the administrative hearing. “To authorize a petitioner to raise issues for the first time in an Article 78 proceeding would deprive the administrative agency of the opportunity ‘to prepare a record reflective of its expertise and judgment’ and would render judicial review meaningless.”
Here, criminal petitioner neither advanced any of her present arguments nor presented any of the documents on which she now relies at the hearing. Therefore, they are waived.
When an administrative determination is made following a hearing required by law, and a claim of substantial evidence is raised, the matter must be transferred to the Appellate Division.
Here, although respondent argues that the hearing officer’s determination is supported by substantial evidence, neither party seeks a transfer to the Appellate Division, nor do the facts warrant it. Moreover, neither party has argued that the informal hearing was required by law or the constitution. Consequently, the court reviewed the proceeding to discern whether the determination reached is arbitrary and capricious.
Judicial review of an administrative agency’s decision is limited to whether the decision “was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed.” In reviewing an administrative agency’s determination as to whether it is arbitrary and capricious under CPLR Article 78, the test is whether the determination “is without sound basis in reason and without regard to the facts.”. Moreover, the determination of an administrative agency, “acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a criminal court may not substitute its judgment for that of the agency when the agency’s determination is supported by the record.”.
Here, the decision to terminate petitioner’s tenancy was rationally based on applicable federal and state law permitting respondent to terminate a tenancy for illegal drug activity, petitioner’s lease, respondent’s Termination of Tenancy Procedures, documentary evidence of petitioner’s marijuana possession and packaging materials, and the hearing officer’s conclusion that detective’s testimony was credible. Although petitioner may have possessed the marijuana solely for her personal use, the hearing officer’s determination may not be disturbed, as it is supported by detective’s testimony and does not shock the conscience.
Accordingly, it is hereby ADJUDGED and ORDERED, that the petition is denied and the proceeding is dismissed.
There were times that police officers go beyond in the usual method in conducting an arrest and search to person arrested. Here in Stephen Bilkis and Associates, our New York Criminal lawyers will help you prosecute these police officers who illegally and irregularly arrested you. We will make it sure that they will be answerable to the acts they commit. We also have New York Marijuana Possession attorneys if the substance involved is marijuana during the time of seizure. Call us now for more information.