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Hearing Officer Miller commenced the administrative hearing

A New York Marijuana Possession Criminal Lawyer said that, petitioner in this CPLR Article 78 proceeding, moves by order to show cause to annul and vacate the October 14, 2009 determination by respondent New York City HOUSING AUTHORITY (NYCHA), which terminated her tenancy in the Red Hook West House, at Apartment 2A, 80 Bush Street, Brooklyn New York. The NYCHA Board approved the September 28, 2009 decision of NYCHA Hearing Officer which found petitioner ineligible for continued occupancy of her apartment. Petitioner claims that NYCHA is discriminating against her because she “self-medicates” with marijuana possession to alleviate her epilepsy disability and NYCHA failed to provide her with an accommodation for her disability.

A New York Drug Possession Criminal Lawyer said that, respondent NYCHA opposes the instant order to show cause and seeks dismissal of petitioner’s petition, alleging that: (1) NYCHA terminated petitioner’s tenancy after establishing that in the three years prior to her administrative hearing petitioner pled guilty five times to criminal possession of a controlled substance in the seventh degree; (2) petitioner has not established that she has a disability; and, (3) petitioner is not entitled to an accommodation for her ongoing illegal drug use. Further, NYCHA claims that its determination to terminate petitioner’s tenancy is: consistent with the law; not arbitrary, capricious or an abuse of discretion; supported by substantial evidence and, proportionate to petitioner’s offenses.

A New York Criminal Lawyer said that, petitioner and her family have been residents of Apartment 2A, 80 Bush Street, Brooklyn, New York for a number of years. The apartment is located in public housing owned and operated by respondent NYCHA. NYCHA charged Petitioner several times in the last decade with non-desirability and breach of her lease. Petitioner and respondent, on May 22, 2006, executed a stipulation of settlement of various charges against petitioner with respect to the February 8, 2006 specification of charges against petitioner. These charges alleged, among other things: that petitioner violated her previous stipulated tenancy probation, because her sons, unlawfully possessed or possessed controlled substances with intent to sell from petitioner’s apartment, on various dates; and, petitioner unlawfully possessed crack cocaine at her apartment on February 3, 2004. In her May 22, 2006 stipulation, petitioner agreed that: her sons are not authorized to reside in her apartment, at 80 Bush Street; her probation would continue until September 26, 2011; and, that she “understands that any violation of the Rules, Regulations, Policies or Procedures of the Authority shall constitute a violation of this Stipulation and will subject the Tenant to additional penalties, up to and including termination.” NYCHA approved the Stipulation on June 22, 2006. Subsequently, NYCHA charged petitioner with non-desirability, breach of its rules and regulations, and chronic rent delinquency, on April 27, 2009. Respondent, among other things, charged petitioner with: unlawful possession of marijuana with intent to sell and acting with others, including a third son, to do so on November 21, 2008; permitting illegal drug activity in her apartment; unlawfully possessing at her apartment controlled substances on October 6, 2006, December 6, 2006, February 20, 2009 and April 20, 2007; allowing unauthorized occupants to reside in her apartment; violating terms of her lease by failing to refrain from illegal activities at her apartment; and, failing to have individuals on the premises with petitioner’s consent refrain from illegal activities referred to in petitioner’s lease.

A New York Criminal Possession of Marijuana said that, on August 20, 2009, NYCHA added a supplemental charge that petitioner unlawfully possessed a controlled substance at her apartment, on July 2, 2009, and the controlled substance was seized by the police pursuant to their execution of a search warrant at petitioner’s apartment]. Hearing Officer Miller commenced the administrative hearing on the charges against petitioner on August 11, 2009. The hearing was continued on September 22, 2009. NYCHA appointed a guardian ad litem to assist petitioner with her defense and he was present at the hearing. After the hearing, Hearing Officer, in her September 28, 2009 decision, sustained the charges listed above, while other charges were dismissed. Petitioner, by her guardian ad litem, admitted to violation of her probation. Numerous documents were introduced into evidence, including certificates of disposition for petitioner’s five guilty pleas to PL § 220.03, criminal possession of a controlled substance in the seventh degree, a Class A misdemeanor, on October 8, 2006, December 6, 2006, April 20, 2007, February 20, 2009 and July 2, 2009. Petitioner, at the hearing, asserted that she suffers from epilepsy and uses criminal marijuana to avoid having seizures. She and her guardian ad litem argued that she needs to “self-medicate because doctors are afraid to prescribe the correct medicine.”

A New York Cultivating Marijuana said that, petitioner offered several documents, into evidence, including: the report of an annual physical examination, conducted the day before the hearing, on September 21, 2009, by South Brooklyn Medical Administrative Services, which noted that petitioner has a “significant opiate/opioid abuse history, concomitant with other drug use indices within a reasonable degree of medical certainty”; and, a letter, dated September 22, 2009, also from South Brooklyn Medical Administrative Services, stating that petitioner was currently enrolled in their methadone maintenance program. Petitioner and her guardian ad litem never specifically addressed petitioner’s illegal use of drugs and her five misdemeanor convictions in the past three years for violation of PL § 220.03, criminal possession of a controlled substance in the seventh degree. Further, petitioner Moore and her guardian ad litem failed to present any medical evidence that petitioner suffers from epilepsy. The above-referenced September 21, 2009 physical examination report never mentions epilepsy and the doctor finds her neurological system “WNL” (within normal limits). Hearing Officer, in her findings, sustained the charges that petitioner possessed controlled substances on October 8, 2006, December 6, 2006, April 20, 2007, February 20, 2009 and July 2, 2009. In her Findings and Conclusions, she wrote that: The argument that Tenant used marijuana possession for medicinal purposes is not persuasive as a defense or mitigation. The charges that are sustained established that Tenant possessed a controlled substance, not marijuana. Furthermore, possession of marijuana is illegal in New York and as such, Tenant’s criminal possession of it could not have been deemed lawful conduct in this forum.

A New York Criminal Lawyer said that, NYCHA, on October 14, 2009, approved “the Hearing Officer’s decision and disposition in this proceeding finding the tenant ineligible for continued occupancy. The tenancy shall therefore be terminated.” Petitioner commenced the instant Article 78 proceeding on December 11, 2009. Her order to show cause to stay her eviction, pending the determination of the instant petition, was signed by another Justice of this Court, in Part 72, the ex parte part, on December 15, 2009. The case was then assigned to my Individual Assignment Part, Part 27. The parties appeared before me for oral arguments on March 12, 2010 and April 9, 2010.

The issue in this case is whether the petitioner is allowed to move by order to show cause to annul and vacate the October 14, 2009 determination by respondent New York City HOUSING AUTHORITY (NYCHA),

The Court’s function in a CPLR Article 78 proceeding is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious. If the reviewing court finds that the agency determination has a rational basis, supported by substantial evidence, such determination must be sustained. When the decision under review is not arbitrary and capricious, the reviewing court in an Article 78 proceeding is prohibited from substituting its own judgment for that of the agency.

It is clear that there is substantial evidence to support NYCHA’s administrative determination to terminate petitioner’s tenancy. Petitioner’s lease obligated her to refrain from criminal activity. Further, petitioner agreed, in the May 22, 2006 stipulation to settle the February 8, 2006 specification of charges that she “understands that any violation of the Rules, Regulations, Policies or Procedures of the Authority shall constitute a violation of this Stipulation and will subject the Tenant to additional penalties, up and including termination.” At the September 22, 2009 hearing, petitioner admitted, by her guardian ad litem, that she violated the terms of her probation. Moreover, certificates of disposition were introduced at the hearing demonstrating that on five previous occasions during the three prior years she pled guilty to criminal possession of a controlled substance in the seventh degree. “A criminal conviction, whether by plea or after trial, is conclusive proof of its underlying facts in a subsequent civil action and collaterally estops a party from relitigating the issue.

Petitioner agreed in her May 22, 2006 stipulation with respondent, “that any violation of the Rules, Regulations, Policies or Procedures of the Authority shall constitute a violation of this Stipulation and will subject the Tenant to additional penalties, up to and including termination.” In the instant proceeding, petitioner MOORE pled guilty to PL § 220.03, criminal possession of a controlled substance in the seventh degree, on five separate occasions during the three years prior to her hearing. Appellate courts have affirmed tenancy terminations of NYCHA tenants convicted of violating PL § 220.03. “The tenant’s plea of guilty to criminal possession of a controlled substance in the seventh degree was sufficient to support the hearing officer’s determination and the penalty of termination was not so disproportionate as to shock the conscience.” The Court upheld the tenancy termination of a woman who violated an agreement to exclude her husband from her apartment, after the husband was arrested for the possession of crack cocaine in a neighboring NYCHA building. “The penalty imposed does not shock the conscience” when “the petitioner knowingly permitted the possession and sale of drugs on the premises.”

Moreover, “the penalty of termination does not shock our sense of fairness” when police executing a search warrant found a gun, drugs and drug paraphernalia in an apartment. NYCHA’s tenancy termination “determination was supported by substantial evidence” “after a search of [tenant’s] apartment, pursuant to a search warrant, recovered inter alia, 159 ziplock bags of crack cocaine possession.” Termination of tenancy in public housing has been found not to shock the conscience when the tenant was involved in drug-related activity.

Finally, we note that petitioner’s claim that she was unaware of the criminal drug activity taking place in her apartment strains all bounds of credulity since petitioner was placed on probation before as a result of her son’s drug involvement. In any event, all residents of public housing have a right to live in a safe, drug-free environment, which right is not diminished by the length of petitioner’s tenancy, or her claim of blind ignorance

In this Article 78 proceeding, the relief demanded by petitioner in both the instant order to show cause and the petition is similar, namely annulling and vacating petitioners’ tenancy in the Red Hook West House. Petitioner did not seek summary judgment. My denial of the instant order to show cause will not dispose of the petition and might compel NYCHA to move for summary judgment and dismissal of the petition. This possible prospective and superfluous motion practice will consume scarce judicial resources. Therefore, the procedural posture of the instant Article 78 proceeding allows the Criminal Court in the interest of judicial economy to invoke CPLR § 3017 (a) and dismiss the underlying petition, as well as the instant order to show cause. CPLR § 3017 (a) states, in relevant part, “the court may grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as are just.”

Accordingly, is that, petitioner’s order to show cause to annul and vacate the October 14, 2009 determination by respondent New York City HOUSING AUTHORITY, which terminated her tenancy in the Red Hook West House, at Apartment 2A, 80 Bush Street, Brooklyn New York, is denied; and it is further ORDERED, that pursuant to CPLR § 3017 (a), it is appropriate to the proof in this special proceeding to grant respondents HOUSING AUTHORITY summary judgment and dismissal of the instant petition.

Accordingly, the court held that the petitioner’s order to show cause is denied for the reasons to follow. Further, summary judgment is granted to respondent and the proceeding is dismissed.

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