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The police recovered three loaded and operable firearms


This is a Marijuana Possession case. Respondent is a public housing authority that provides and manages residential units such as the subject residence, the Breukelen Houses, located Brooklyn, New York. Petitioner was a tenant of apartment 3B (the apartment) at the Breukelen Houses. According to the Resident Lease Agreement, Petitioner was the sole lessee for the apartment and only authorized resident listed on her most recent affidavits of income.

A Kings County Criminal attorney said that in September 2005, Respondent charged petitioner with, among other things, non-desirability based on (a) her son’s unlawful possession of marijuana on Respondent’s property and (b) filing false income information with Respondent. The parties chose to settle the charges by signing a stipulation of probation in December 2006. Under terms of the Stipulation, petitioner agreed, inter alia, to subject her tenancy to a five-year probationary period commencing on 2007 and ending on 2012; to permanently exclude her son from residing in or visiting her at the apartment. If Petitioner failed to adhere to the conditions under the Stipulation, Respondent would be entitled to seek to terminate her tenancy for violation of probation.

Although Petitioner’s son was removed from the apartment, Respondent did not remove him from the Resident Lease Agreement, despite her request. In August 2006, petitioner was diagnosed with breast cancer. In March 2007, approximately three months after signing the Stipulation, Petitioner asked her son to return to the apartment and assist her with daily activities, such as moving around the apartment, shopping, and using the bathroom while she was undergoing chemotherapy treatment.

In March 2007, the police executed a search warrant of the apartment; Upon searching the apartment, a Detective arrested Petitioner’s son and his friend, who were both found in son’s bedroom. The police recovered three loaded and operable firearms, ammunition, two bags of marijuana, two digital scales, and drug paraphernalia from the son’s bedroom; one baggie of marijuana from his pants and six baggies of marijuana from James Gaines; one large bag of marijuana in plain view on the living room table; and one hundred and forty baggies of marijuana from behind the sofa in the living room. During the search, Petitioner was found in her bedroom in the apartment and she was arrested, along with the son and his friend.

After learning of the execution of the search warrant, Respondent notified Petitioner, via letter, that it was considering termination of her lease. The Respondent held an interview with petitioner to discuss the non-desirable conduct taking place. During the interview, Petitioner admitted that her son was arrested and weapons were confiscated from her apartment, but said she did not know how the drugs and weapons came into the apartment.

Thereafter, Respondent sent petitioner a Notice and Specification of Charges (the Notice) charging her with non-desirability on the basis of her and/or her son’s illegal activities in the apartment; violation of the permanent exclusion in the Stipulation by allowing her son to reside in the apartment; violation of the five-year probation in the Stipulation; and breach of the Resident Lease Agreement by permitting unauthorized occupants to reside in the apartment without prior written consent. The Notice also advised Petitioner of her hearing date and the fact that she was entitled to be represented by counsel or another representative of her choice.

Later on, the police obtained and executed a second search warrant. Again, petitioner was found in her bedroom, and her son in his bedroom. Seven bags of marijuana, ammunition, and numerous empty ziplock bags were recovered from son’s bedroom, and both mother and son were again arrested. Respondent then sent Petitioner Amended and/or Supplemental Charges and a Notice of Adjournment notifying her of the date of the hearing and supplementing the charges against her tenancy to include those stemming from the search of the apartment. The criminal case against petitioner based on her first arrest was adjourned in contemplation of dismissal. The District Attorney declined to prosecute the charges against Petitioner in relation to the arrest, as the son accepted responsibility for all the illegal items found in the apartment.

At the hearing, petitioner testified that she had asked respondent to remove her son from the lease because she “didn’t actually want him anywhere near me” but when she got sick she asked her son to return to the apartment because, due to her illness, she had “no choice but to have [her son] help [her around the house]” because she “couldn’t do things [herself]”. She further testified that, although she knew the Stipulation prohibited her son from living in or visiting her in the apartment, she thought it was acceptable for him to assist her there while she was recovering from breast cancer because his name had not been removed from the Resident Lease Agreement. She claimed she was not aware of the illegal drug activity in the apartment because she was “always in bed.” She also averred that sometimes she did not even know when her son was in the apartment, and that he did not live in the apartment, but merely visited to help care for her.

In its decision, Respondent sustained the charges against petitioner. It reasoned that the probation agreed to in the Stipulation with Respondent was an insufficient deterrent, given that her son repeatedly sold cocaine from the apartment and possessed loaded firearms and substantial quantities of illegal narcotics and drug paraphernalia. The Hearing Officer found petitioner’s testimony that she was not aware of the illegal activities in the apartment not credible and determined that petitioner’s claim that she needed her son’s assistance while undergoing breast cancer treatment could not mitigate the disposition in this matter in light of her son’s non-desirable conduct and petitioner’s repeated violation of the permanent exclusion agreement in the Stipulation. The decision further noted that petitioner had dominion and control of the apartment, and therefore had an obligation to ensure that no members of the household or guests engaged in any illegal activities.

Thus, Respondent sent petitioner a Determination of Status letter notifying her that the Board had adopted the Hearing Officer’s decision declaring her ineligible for continued occupancy of the apartment and issued a determination terminating petitioner’s tenancy.

Under CPLR 7803(3), the relevant question is “whether a determination was made in violation of lawful procedure, was affected by 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.” Judicial review of an administrative determination brought by an Article 78 proceeding is “limited to the evaluation of whether that administrative determination is consistent with lawful procedures, whether it is arbitrary or capricious, and whether it is a reasonable exercise of the agency’s discretion”. Thus, in an Article 78 proceeding, an administrative action “must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law’

The court acknowledges the fact that Respondent was technically entitled to terminate the tenancy for a violation of any of the Stipulation’s conditions, including Petitioner’s allowing of her son into the apartment, and terminations of tenancies for violations of such permanent exclusion clauses in public housing stipulations have been consistently upheld by courts. Furthermore, the undisputed terms of the Resident Lease Agreement provide that Respondent may terminate a tenancy for non-desirability based on the conduct of either the tenant or a person occupying the premises of the tenant. Such prohibited conduct includes the sale of drugs, either in the apartment itself or elsewhere on or in the vicinity of the Respondent premises, and thus the son’s engagement in drug-related activities while in the apartment could clearly be grounds for terminating petitioner’s tenancy under legal precedent.

The determination that petitioner’s and/or her son’s misconduct might have been warranted termination of petitioner’s tenancy may have been supported by substantial evidence.

Notwithstanding the above, the court concludes that the penalty of termination is “so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness, thus constituting an abuse of discretion as a matter of law”. Under the circumstances, including the fact that petitioner had never been arrested for or convicted of any prior crimes, and that petitioner was undisputedly ill and unable to care for herself during the period when her son returned to her apartment, the court finds that neither the Hearing Officer nor respondent gave sufficient weight to those mitigating factors. Most notably, the court deems petitioner’s statements regarding her breast cancer relevant to the inquiry of whether the penalty of termination is appropriate. It does not appear that any consideration was given to Petitioner’s medical condition during the relevant time period.

Petitioner testified that she was often bedridden, heavily medicated, incoherent, and unaware of what was going on during her treatment and recovery, and that, even though she had previously insisted on removal of her son from the apartment and the Resident Lease Agreement, she asked him son to help her temporarily, in the face of her diagnosis of breast cancer, the ensuing medication and her inability to take care of herself. In light of her urgent need for assistance in her own home, and in the absence of others who could help or the funds necessary to hire such assistance, her actions might be considered to be reasonable.

The court notes that the Respondent’s decision articulates that Petitioner had dominion and control of the apartment, and therefore had an obligation to ensure that no members of the household or guests engaged in any illegal activities. But the decision makes no reference to how it was determined that Petitioner could have maintained herself in the apartment without help, nor how it was determined, in her weaken cancerous and medicated state, that she had dominion and control over the apartment. It does not appear that the hearing officer considered any of the circumstances shown by the petitioner for consideration of a lesser penalty than termination. In light failure of respondent to consider petitioner’s medical condition and its impact upon her ability to control the environment, her very limited income, her inability to return to work until she has made further recovery, and her lack of alternate housing options, the court concludes that it was arbitrary and capricious for respondent to impose a penalty of termination.

Accordingly, the petition to reverse and annul respondent’s administrative decision terminating petitioner’s tenancy is granted and the matter is remitted to respondent for the imposition of a penalty more appropriate in light of all the circumstances-breast cancer and its attendant limitations-of which the petitioner had no control and no ability to abate.

We know that drug possession is prohibited by law, but others commit this offense over and over again. Here in Stephen Bilkis and Associates, our Kings County Drug Possession Lawyers will help you prosecute a drug seller. We also have our Kings County Criminal attorneys for other criminal concerns.

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