Vega v New York City Hous. Auth.

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Vega v New York City Hous. Auth. 2012 NY Slip Op 30498(U) February 27, 2012 Supreme Court, New York County Docket Number: 400120/11 Judge: Manuel J. Mendez Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] lNED ON 31212012 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART 13 E2 Jusilce NANCY VEGA 40012011I INDEX NO. MOTION DATE 0118-2012 -vMOTION SEQ. NO. 1 NEW YORK CITY HOUSING AUTHORITY, MOTION CAL. NO. The following papers, numbered 1 to 6 Notice of Motlonl Order to Show Cause Answerlng Affldavita - Exhiblts were read on this petltlon tonor Art, 78 -Affldavits - Exhlbits ... crosi motion Replying Affidavits Cross-Motion: X Yes No Upon a reading of the foregoing clted papers, It Is ordered and adJudgedthat Article 78 petltlon is granted, the cross- motion Is denied, the Hearing determlnatlon is annulled and the proceedlng is remanded to respondent for reconsideration and lmposltlon of a lesser penalty. Petltloner has resided for the past I 9 years with her two 9gfhStreet Apt. 12G ( Carver Houses) which is managed by the York City Housing Authority. The apartment had been orlglnally leased to her husband Daniel Vega but he moved out, leaving the apartment his chlldren, whom he vlslts occasionally. P Two search warrants were executed in the apartment, one dated October 26,2007 and the other January 3,2008, causing Respondent to file charges against Petltloner for Undesirability, in that Petltioner along with Danlel Vega .... ( on November I 2007did unlawfully possess, sell or attempt to sell a I ) , controlled substance, to wit, heroin a quantity of which was recovered durlng executlon of a search warrant;(2) On or about January 11,2008 did unlawfully possess, sell or attempt to sell a controlled substance, a quantity of which was recovered during the execution of a search Warrant ; (3) On or about October 21, 2006 on project grounds or in the Immediate vlclnlty thereof sald Daniel Vega did unlawfully possess a controlled substance , and breaching NYCHA rules and regulations In that petltloner (4) permitted unauthorized occupant Danlel Vega to take up resldence In your authority apartment without obtalnlng prior written consent of your development housing manager; (5) failed to refrain from or failed to cause Individuals on the premlses with your consent, to refrain from illegal or other activity [see Answer Exhlbits A through F]. [* 2] On Aprll30,2010 the charges were amended to add a charge of possessing and selling a controlled substance on February 27,2009. [see Answer Exhibit KJ. I The warrant dated October 26, 2007 was executed on November I 2007 , and the police recovered one glassine of heroin from the person of Danlel Vega. The warrant dated January 3,2008 was executed on January 11, 2008 and the police recovered $166 in United States Currency, one(1) straw with resldue, one (I) of a plastic glove with residue and one (I) mug with residue. The flnger small residue in the straw was tested and found to be heroin, the residue in the glove flnger was not analyzed and the mug residue was a non controlled substance. These items were recovered from the person of Daniel Vega. The only contraband recovered in petitioner s apartment was recovered from the person of Daniel Vega. There were no scales, empty vials or giassines, large amounts of money or other drug paraphernalia recovered. During the execution of this warrant ail persons in the apartment, inciudlng petitioner s chlidren, were arrested. [see Answer Exhibit R]. Petitioner pied guilty at arraignments to possession of a controlled substance, a rnlsdemeanor, and was sentenced to tlme served. it should be noted that there was no indicia that this apartment was being used for the purposes of engaging in illegal activity. [ see Answer Exhlblt M and Q ] on February 27,2009 Petitioner was arrested and charged with crlmlnal sale of a controlled substance in the third degree, a class B felony. On April 6, 2010 she pied guilty to the crime of Criminal Sale of a controlled substance in the third degree and was at ilberty, pendlng sentencing, at the tlme of the administrative hearing. However, on November 17, 2010, as evidenced by certificate of disposition number 20710 the criminal case was dismissed and sealed, the arrest was deemed a nullity and [Petitloner] was restored to the status occupled before the arrest and prosecutlon. [see Answer Exhibit J and Petition Exhibit B] An Administrative Hearing was held before the Hon. Ester Tominic-Hines on April 30,2010, June 9,2010 and July 20,2010. At the Hearing Respondent presented documentary evldence of the warrants, their execution, the contraband recovered and the disposltion of the charges. There were no wltnesses presented by Respondent. Petitloner presented one witness and also presented documentary evidence to show that she had been a drug user but is on her way to recovery, that she has been a good tenant and neighbor and deserves a second chance and to show that Daniel Vega does not reside with her in the subject apartment. At the tlme of the hearing only her arrest and conviction for sale of a controlled substance was before the Administrative judge. [see Exhibits S and U] [* 3] - Hearing Officer Tominic Hines sustained charges 1 through 3 and 6 and recommended termination of the tenancy. in her decision she stated I the evidence presented by NYCHA demonstrates that the tenant and Daniel Vega as a guest of the subject apartment have been associated with illegal drug related activities from 2007- 2009. The fact that the tenant may have been a drug user and sold illegal narcotics to support her drug habit does not mitigate her responsibility for the drug related conduct which creates a danger to the community and significantly diminishes the living standards of ail other law abiding residents.I1 NYCHA S Board approved the hearing officer% decision on September 22, 2010 [Answer Exhibit WJ. Foilowing senrice of NYCHA s Board determination Petltioner timely filed this Article 78 Petition to revlew and reverse the Hearing Offlcer s determination. [see CPLRs217 (I)]. An occupant in a public housing project can be evicted for violating the terms of the lease by possessing or having his household guest possess illegal controlled substances either on or off the premises. Judicial revlew of these administrative proceedings is limited to determining whether there exists substantial evidence to support the determination ( Walker v. Franco, 275 A.D. 2d 627,713 N.Y.S. 2d 164 [Imt. Dept. 20001). Substantial evldence has been found to exist where Marihuana was found in an apartment together, with an electronic digital scale ( Wiiiock v. Schenectady Municipal Housing Authority, 271 A.D. 2d 818,706 N.Y. S. 2d 503 [3rd. Dept. 20001); where during a search warrant of petitioner s apartment 151 vials of crack cocaine, packaged and ready for sale, a beeper, and a number of plastic bags and empty vials were thrown from a window of the apartment and after entering the apartment the police discovered clear plastic vials with various tops, several cell phones and a tripie-beam scale (Walker v. Franco, 275 A.D. 2d 627,713 N.Y.S. 2d 164 [lat. Dept. 20001 Supra); Where, upon execution of a search warrant, police recover a bag containing heroin residue on petitioner s bedroom dresser along with a second bag containing 50 to I00 clear zip lock bags ( in re Cruz, 282 A.D. 2d 230,722 N.Y.S. Dept. 2d 548 [lot. 20011); where there is testimony from a police Officer that an informant bought crack cocaine from petitloner s son and he found drugs and drug paraphernalia inside the apartment as well as a loaded gun in a safe that was in plain view ( Harris v. Hernandez, 30 A.D. 3d 269,817 N.Y.S. 2d 56 [let. Dept. 20061); where petitioner knowingly permits the possession and sale of drugs on the premises ( Kerney v. Hernandez, 60 A.D. 3d 544,874 N.Y.S. 2d 804 [Iat. Dept. 20091); where there i testimony from a police officer that he observed petitioner s sell prescription drugs near the housing development ( Maidonado v. New York City Housing Authority, 63 A.D. 3d S689 880 N.Y.S. 2d 487 [Iat. 20091). Dept. . [* 4] However, despite a finding of substantial evidence the penalty of termination of tenancy has been found to be disproportionate to the offense where the offender has been removed from the household by the tlme of the hearing ( see Cheek v. Hernandez Plnero, 198 A.D. 2d 106,603 N.Y.S. 2d 831 [lot. 19931 penalty of termination of tenancy In public housing project Dept. found disproportionate to offense and lesser penalty had to be Imposed, where It was undlsputed that tenant removed offenders by the tlme of hearing on termlnatlon petition and did not participate in any of the undesirable acts. ; Matter of Blanco v. Popoiizio, 190 A.D. 2d 554,593 N.Y.S. 2d 604; Matter of Brown v. Popollrlo, 166 A.D. 2d 44,569 N.Y.S. 2d 616, NYCHA termlnatlon of tenancy procedures does not permit termlnatlon of the tenancy where the offender has been removed from the household. ); and where the tenant has had an unblemished record of compllance with housing rules desplte being convicted of two misdemeanors (Matos v. Hernandez, 79 A.D. 3d 466,912 N.Y.S. 2d 49 [Iat. Dept. 20101 permanent exclusion of resident convicted of two mlsdemeanors, but without crlmlnal record, and with unblemished record of compliance with housing authority rules for twenty three (23 ) years he had lived In public housing shocks court s consclence, determlnatlon of hearing officer annulled and matter remanded for Imposition of lesser penalty ). - Until these incidents Petitioner had an unblemished record of compliance with Houslng Authority rules, during the execution of the warrants she was not found to be In possession of any controlled substance these were all recovered from the person of Daniel Vega there was no indicia of illegal drug activity taking place within the premlses ( no scales, empty vials, glassines, large amounts of money or weapons recovered), Daniel Vega is not a resident of the apartment and has been removed. Her plea of guilty to Possession of a controlled substance in the thlrd degree was vacated, the case dismissed and her arrest annulled. Under these circumstances the penalty of tenancy termination, which will render petitioner and her children homeless with all of the consequences that homeiessness entails , shocks this court s consclence. The matter should be remanded to respondent to consider the change in circumstances following the vacatur, dismissal and annulment of her arrest and conviction ( see Matos v. Hernandez, 79 A.D. 3d 466, Supra). - - Accordingly, it is the declsion and order of this court that the petition is granted, the cross motion is denled, the hearing offlcer s determination is annulled and the matter is remanded to respondent for reconsideration given a change in circumstances regarding her conviction and for lmpositlon of a lesser penalty. - [* 5] Accordingly, it Is ORDERED and ADJUDGED that the petition is granted the hearing officer's determination is annulled and the matter is remanded to respondent for reconsideration and impositlon of a lesser penalty. This constitutes the decision, Judgmentand order of this court. ENTER: Dated: Februau 27. 2012 MANUEL J. MENDEZ J. S. C. 0 NON-FINAL DISPOSITION 0 DO NOT POST 0 REFERENCE Check one: X FINAL DISPOSITION Check if appropriate: UNFILED JUDGMENT This Judgmenthas not b e n entered by the County Clerk and notice of entry Cannot be served based here&. To obEain entry, counsel ar authorized representative must appear in person'& the Judgment Clerk's Desk (Room 141B).

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