Matter of Wilson v New York City Hous. Auth.

Matter of Matter of Wilson v New York City Hous. Auth. 2011 NY Slip Op 08795 Decided on December 6, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 6, 2011
Andrias, J.P., Sweeny, Acosta, Freedman, Manzanet-Daniels, JJ.
5857 116992/09

[*1]In re Arkel Wilson, Petitioner,

v

New York City Housing Authority, et al., Respondents.




Cohen, Weiss and Simon, LLP, New York (Travis M. Mastroddi
of counsel), for petitioner.
Sonya M. Kaloyanides, New York (Mindy Merdinger
Blackstock of counsel), for respondents.

Determination of respondent New York City Housing Authority, dated August 7, 2009, which, after a hearing, terminated petitioner's employment based on misconduct, unanimously annulled, with costs, the petition granted, petitioner reinstated to his former position, and the proceeding (transferred to this Court by order of the Supreme Court, New York County [Marylin G. Diamond, J.], entered June 17, 2010) remanded to the Supreme Court for a determination of an award of back pay and benefits from the date of termination to the date of reinstatement.

The finding that petitioner was in constructive possession of a loaded firearm on the date at issue, based on the statutory presumption of Penal Law § 265.15, was not supported by substantial evidence (see Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393, 400 [1984]).

Petitioner was driving his friend's car when it was stopped for a traffic violation. His friend was sitting in the front passenger seat and petitioner's brother was sitting behind petitioner in the back seat.

One of the arresting officers testified that after shining his flashlight into the car, he was able to see some loose cartridges on the rear floor mat behind the passenger seat. Consequently, the car was searched and a loaded firearm and additional ammunition were recovered in a cooler bag underneath the front passenger seat where petitioner's friend was sitting. While all three occupants of the car were arrested, the officer testified that, as far as he knew, there was no criminal case against petitioner.[FN1]

The other arresting officer testified that he did not see the loose ammunition in the back seat when he first approached the vehicle and that he took a verbal statement from petitioner's friend, who said that the firearm and the ammunition found in the bag was his. Petitioner testified that he did not know that there was a gun or cartridges in his friend's car. He never saw a bag under the front passenger seat and did not look into the back seat.

By this evidence, the presumption that petitioner possessed a loaded firearm was rebutted [*2](Penal Law § 265.15[3]). Indeed, there is no evidence that petitioner had access to the bag hidden under the front passenger seat or that he was aware of its contents (see People v Lemmons, 40 NY2d 505, 511 [1976]), and petitioner's friend, the owner of the car, admitted against his penal interest that the firearm found in the car was his (see People v Cullen, 138 AD2d 501, 503 [1988] [statutory presumption was rendered incredible where a passenger in the car at the time of the defendant's arrest testified that the gun in question was his and that, without the defendant's knowledge, he had been carrying it in his pocket]). As such, it was error for the Hearing Officer to find that petitioner possessed a firearm and to recommend that he be terminated from his position.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 6, 2011

CLERK Footnotes

Footnote 1:We note that on August 25, 2010 petitioner pleaded guilty to the traffic violation of illegal signaling, and was sentenced to a conditional discharge of one year and a $1 fine.