JOHNSON APARTMENTS COMPANY v. EVELYN MORALES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4119-08T24119-08T2

JOHNSON APARTMENTS COMPANY,

Plaintiff-Respondent,

v.

EVELYN MORALES,

Defendant-Appellant.

______________________________________

 

Submitted March 16, 2010 - Decided

Before Judges Fuentes and Gilroy.

On appeal from Superior Court of New

Jersey, Law Division, Special Civil Part,

Essex County, Docket No. LT-3706-09.

Essex-Newark Legal Services, attorneys for

appellant (Kyle L. Rosenkrans and Felipe

Chavana, on the brief).

Levy, Ehrlich & Petriello, attorneys for

respondent (Erin R. Ehrlich, on the brief).

PER CURIAM

Defendant Evelyn Morales appeals from the order of the Law Division Special Civil Part evicting her from a federally subsidized apartment. Plaintiff, Johnson Apartments Company, based its cause of action against defendant on a section of the Anti-Eviction Act that makes possession of illicit narcotics grounds for eviction. We affirm.

Plaintiff owns a private residential complex in Newark that receives rental subsidies under the federally sponsored Section 8 program. Defendant has been a tenant at this complex for the past fifteen years; she is disabled and has not had any prior incidents with illicit drugs.

On September 20, 2008, Newark police officers were patrolling areas of the City known for illicit narcotic distribution when they came upon a man who appeared to be in possession of narcotics. The man was standing outside of plaintiff's housing complex. When the officers approached the suspect, he fled into the building, dropping packets of heroin on the steps immediately inside the building; the officers saw the man run into defendant's first floor apartment. The suspect opened the apartment door without using a key and fled into a bedroom where he was apprehended.

The officers involved in this pursuit also arrested and charged defendant with possession of illicit narcotics. The officers saw in plain view forty glassine envelopes containing what appeared to be heroin. The drug packets were on a coffee table directly in front of defendant and approximately three to four feet from where she was seated. The officers eventually recovered a total of 360 glassine envelopes of heroin and cocaine, including the forty found on defendant's coffee table.

Some of the glassine envelopes were stamped with red ink reading "street doctor," others with green ink read "Dunkin Donuts" or "recession." The envelops labeled "street doctor" were found on the building steps where the suspect had dropped them as he fled, on his person, and in defendant's apartment. No drugs were found on defendant's person or in any other part of her apartment.

On October 27, 2008, plaintiff served defendant with a notice to quit, terminating her lease agreement as of November 30, 2008. Thereafter, efforts to informally resolve the situation as per HUD guidelines were unsuccessful. On January 5, 2009, plaintiff brought a summary disposition action against defendant for possession of the apartment alleging violations of

N.J.S.A. 2A:18-61.1e(2) and N.J.S.A. 2A:18-61.1p.

Plaintiff's evidence came through the testimony of one of the police officers who was present when the drugs were discovered. Defendant, who was represented by counsel, presented the testimony of her daughter, who had visited her mother on the day this incident occurred. She testified that her mother did not have a coffee table in her living room, as attested to by plaintiff's witness. According to defendant's daughter, the only table in the apartment was in the kitchen. She also indicated that she never knew of her mother using or being involved with illicit drugs of any kind.

The court found in favor of plaintiff and entered judgment terminating defendant's tenancy pursuant to N.J.S.A. 2A:18-61.1p, which provides the following basis for terminating a residential tenancy:

The person has been found, by a preponderance of the evidence, liable in a civil action for removal commenced under this act for . . . the use, possession, manufacture, dispensing or distribution of a controlled dangerous substance, controlled dangerous substance analog or drug paraphernalia . . . within or upon the leased premises or the building or complex of buildings and land appurtenant thereto, or . . . being the tenant or lessee of such leased premises, knowingly harbors or harbored therein a person who committed such an offense, or otherwise permits or permitted such a person to occupy those premises for residential purposes, whether continuously or intermittently.

The court also relied on Dept. of Hous. v. Rucker, 535 U.S. 125 127-8, 122 S. Ct. 1230, 152 L. Ed. 2d 258 (2002), in which the Supreme Court held that federal law requires that public housing authorities use leases that allow authorities to evict tenants for the drug-related criminal activity of household members and their guests. In Rucker, a party unsuccessfully challenged HUD regulations that permitted public housing authorities to terminate a tenant's lease for any drug-related criminal activity that occurs on or near the leased premises, whether the activity was engaged in by the tenant, any member of the household, a guest, or anyone under the tenant's control. See 24 C.F.R. 966.4(f)(12)(i), (l)(5)(i)(B) (2001).

Here, against this legal backdrop, the trial court gave the following explanation in support of its ruling:

[I]t is my finding that the landlord has demonstrated by a preponderance of the evidence and testimony before the [c]ourt that the tenant was in possession of CDS, which is contraband, pursuant to N.J.S.A. 2C:35-1 and, as a result thereof, the notice was sufficient as has been stipulated to and, therefore, there was a violation of Subsection P of the -- pursuant to N.J.S.A. 2A:18-61.1 and Subsection P does not require any notice to cease. The notice to quit can be for a period of three days. The notice was dated October 27th. It allowed 30 days. No rent has been accepted since November 30th and, therefore, this [c]ourt will enter a judgment of possession.

The trial court accepted as a matter of credibility the police officer witness' account as to what he saw in and recovered from defendant's apartment at the time of her arrest.

Defendant now argues on appeal that the court misapplied the strict liability standard in Rucker because it found that she had control of the drugs merely because she had control of the apartment. We disagree. Defendant's constructive control of the drugs found in her apartment was predicated upon: (1) the location where the drugs were found; (2) the quantity of drugs involved; and (3) the manner of how the drugs were packaged and labeled. All these elements meet the definition of constructive control, which charges an individual with legal possession of an item when, although lacking physical or manual control, "the circumstances permit a reasonable inference [she] has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Morrison, 188 N.J. 2, 14 (2006) (internal quotation and citation omitted).

Finally, we reject defendant's argument that the trial court erred in finding that plaintiff properly exercised its discretion in deciding to evict defendant from her subsidized apartment. In Oakwood Plaza Apts. v. Smith, 352 N.J. Super. 467, 474-5 (App. Div. 2002), we held that

[t]he federal statutory framework . . . does not permit a Section 8 landlord to act in an arbitrary or capricious fashion. Because no administrative procedure for eviction and challenges to eviction exists, the responsibility lies with the court in the first instance to determine whether a Section 8 landlord has exercised its discretion in a manner consistent with federal statute.

We thus reversed the judgment of possession and remanded for further proceedings because "[t]he record below did not permit that determination to be made, since it did not reflect a weighing process over which the court could have asserted its power of review." Id. at 475. Stated differently, we were "unable to determine whether . . . justification exists in this case, and thus whether the landlord's discretion was properly utilized." Ibid.

Here, the trial court addressed this issue as follows:

It's this [c]ourt's position that the discretion is so exercised when any criminal activity, especially drugs, have been involved because the landlord has an obligation and a responsibility to all of the tenants within a public housing or, for that matter, any landlord has the responsibility to all tenants and, if there's a violation of a lease provision and especially with regard to a violation of a criminal statute and, in this case, it would be under the drug laws, N.J.S.A. 2C:35-1 [through -29], which in this case, it's alleged involves either possession, manufacture, dispensing, or distribution of a controlled dangerous substance.

. . . .

[T]he responsibility of the landlord is to, as I said, all tenants who have the right to quiet enjoyment of their -- within their particular apartment and that they be free from the effects of any drug trafficking, trade or even the possession by other neighbors.

Thus, the trial court considered the seriousness of the crime involved, and its destructive effect on the community, including defendant's fellow tenants, in determining that plaintiff had properly exercised its discretion in seeking to terminate defendant's tenancy.

 
Affirmed.

(continued)

(continued)

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A-4119-08T2

May 6, 2010