New York County Dist. Attorney's Off. v Villarreal

[*1] New York County Dist. Attorney's Off. v Villarreal 2007 NY Slip Op 51363(U) [16 Misc 3d 1109(A)] Decided on June 15, 2007 Civil Court Of The City Of New York, New York County Cohen, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 15, 2007
Civil Court of the City of New York, New York County

New York County District Attorney's Office, Petitioner,

against

Janeth Villarreal, Respondent-Tenant, -and- "John and Jane Doe," Respondents-Subtenants, -and- New York City Housing Authority, Respondent-Landlord.



L & T 025783/2006



New York County District Attorney's Office

Attorneys for Petitioner

One Hogan Place

New York, NY

By: Susan C. Roque, Esq.

Lenox Hill Neighborhood House

Attorneys for Respondent-Tenant,

Janeth Villarreal

331 East 70th Street

New York, NY

By: Nadya E. Rosen, Esq.

New York City Housing Authority

Law Department

Attorneys for Respondent-Landlord

250 Broadway, 8th Floor

New York, NY

By: John Cannavo, Esq.

David B. Cohen, J.

I. Introduction

This summary drug holdover proceeding was commenced to obtain possession from the tenant of record, Janeth Villarreal, and her family pursuant to RPAPL § 711 (1), 715 (5) and RPL § 231 (1) on the theory that the subject premises were being used for illegal drug activity.

II. Findings of Fact

Respondent, Janeth Villarreal, is the tenant of record of apartment 8F, located at 1809 First Avenue, New York, New York (the "apartment" or "premises"), a federally-subsidized public housing unit owned and maintained by the New York City Housing Authority ("NYCHA"), the respondent-landlord in this proceeding. Petitioner is the New York County District Attorney's Office.

Respondent is the mother of six adult children, five of whom are listed in NYCHA records as residing with her in the apartment, which has four bedrooms, a living room, kitchen and two [*2]bathrooms.[FN1] Respondent's NYCHA lease list respondent as the sole tenant of record and contains a "drug-free housing" clause.[FN2]

On March 16, 2006, police, acting on a search warrant, found a quantity of drugs (cocaine and marijuana), drug paraphernalia, handcuffs, ammunition, a pistol magazine and over $700 in US currency inside the apartment. Respondent's son Ronald, 22, was arrested and, on February 7, 2007, pleaded guilty to the class B felony of Criminal Possession of a Controlled Substance in the Third Degree, Penal Law § 220.16 (1), in connection with the seizure of the cocaine from the apartment. The elements of the crime of Criminal Possession of a Controlled Substance in the Third Degree are knowing and unlawful possession of a narcotic drug with the intent to sell it (Penal Law § 220.16 [1]).

Testifying for petitioner were Detective William Doheny of the NYPD, Manhattan Gang Unit, and Mr. Lewis Barnett, a Housing Assistant for NYCHA assigned to the development.

Detective William Doheny was the arresting officer on the 6:00 a.m. search warrant execution on March 16, 2006 at respondent's apartment, and testified credibly at trial. A 23-year veteran of the force, Detective Doheny has been specifically trained in the identification of drugs, their preparation and packaging for sale, and the processes of selling and distributing drugs, and was qualified as an expert witness in narcotics identification and arrests.

In the living room, in plain view, four bags of marijuana and a joint were recovered. In a bedroom where respondent's son, Ronald, was found sleeping, Detective Doheny recovered a quantity of cocaine,[FN3] baking soda, and several clear plastic bags, each containing 50 or more smaller unused ziplock plastic bags, from the top dresser drawer. A calculator, 10 rounds of 9mm ammunition, and a 9mm pistol magazine, were also recovered in the dresser drawer. A set of [*3]handcuffs with keys was recovered from a lower drawer of the same dresser.[FN4]

The recovery of the above-described items demonstrated that an illegal drug trade was occurring in the apartment. Detective Doheny testified, in his capacity as an expert, that cocaine recovered together with baking soda and small ziplock bags, such as those found in Ronald's bedroom, suggests the intent to cut the cocaine with the baking soda, to package the cocaine in the small ziplock bags and then to sell it in twenty-dollar amounts. Further, the calculator recovered can be used to aid in measuring cocaine-to-cutting agent ratios and weights, and in calculating drug sale figures.

The detective observed that the bedroom where Ronald had been sleeping in his underclothes contained all male clothing and well over 50 or 60 pairs of new sneakers in their original boxes, in "pristine" condition, and a large number of sports jerseys. Before being led away, Ronald asked for his clothing. He was allowed to go back to the bedroom where he had been sleeping, pick out his clothing from that room and dress. Ronald told the detective that he had a "sneaker collection" and that collecting them was his "hobby."

Respondent testified on her own behalf, as did her adult son Eugenio who resides in the apartment. Respondent had traveled to Columbia the day before the search warrant execution, intending to stay for one or two months, and had left the subject apartment in the care of her sons, Ronald and Eugenio, and her daughter-in-law, Anna Figueroa.[FN5]

Respondent testified that Ronald did not live in the subject apartment, that she had asked Ronald to leave three years ago, and that Ronald had moved in with his sister, Inez, in New Jersey. She notified NYCHA that Ronald was no longer living in the apartment, however, there is no such record in NYCHA's files. Instead, Ronald is listed on the most recent NYCHA Affidavit of Income and Family Composition form, dated January 2003 (and updated printout as of March 2005), and on the request for additional lobby keys form which respondent filled out and signed.[FN6] Although the latter form is undated, it lists Ronald's age as 20.[FN7]

Were this court to credit respondent's and Eugenio's testimony that Ronald had moved out of the apartment before his arrest, respondent nevertheless testified that Ronald visited her at the apartment at least two or three times a week, kept his clothes and possessions there, had his own bedroom where he slept, and had access to the apartment while she was away. Respondent cooked for him, did his laundry, and was aware that he kept a "shoe collection" in the apartment. [*4]

Respondent disputed that Ronald was using or storing drugs in her apartment, and denies any knowledge of same. Her testimony described how she was intimately familiar with the contents of her apartment and all the dresser drawers, having cleaned all the rooms, done all the laundry, and put away the laundered clothes in the dresser drawers every day, and never found any drugs or weapons in the apartment.[FN8]

Respondent also testified that at the time of his arrest Ronald was unemployed and that her two daughters, Inez and Rocia, and respondent's mother, supported him. Respondent, who receives some financial assistance through Medicaid, and respondent's son, Eugenio, who currently works as an unpaid intern, also testified that Inez provides for their financial needs.

Respondent suggested that the more than $700 in cash recovered from the apartment came from her daughter, Inez, or another friend, while respondent's son, Eugenio, testified that the money was from his own savings and meant to pay for one month of tuition.

This court does not find respondent's testimony that Ronald was not "living" at the apartment or her asserted lack of knowledge of the presence of drugs or drug activity inside the apartment, credible. Based upon this court's observation of respondent's testimony, she was evasive, inconsistent, and unreliable.

The weight of evidence supports the conclusion that Ronald was an occupant of the apartment, and even assuming that he may have been living with his sister, Inez, for some period of time, Ronald's physical occupancy of the apartment was frequent and substantial enough to impute respondent with knowledge of Ronald's activities in the subject apartment, particularly if, as respondent testified, she cleaned the bedrooms and arranged the clothes in the dresser drawers each day. Thus, respondent should have been aware that her son Ronald was storing drugs in his dresser drawer.

III. Conclusions of Law

In order to prevail, petitioner must prove that the premises were being used for illegal drug activity by a preponderance of the evidence (167 East 86th St. Court v Wienecke, 132 Misc 491 [Mun Ct 1928]). The evidence presented at trial supports a finding that the premises were being used for illegal drug activity. Respondent's son, Ronald Villarreal, pleaded guilty to the class B felony of Criminal Possession of a Controlled Substance in the Third Degree, Penal Law § 220.16 (1), in connection with the seizure the cocaine recovered from the subject apartment. Ronald's conviction demonstrates conclusively that the subject premises were being used for the illegal sale of drugs, in that he possessed the cocaine with the intent to sell it.

Moreover, the facts testified to at trial surrounding the seizure of drugs and arrest of respondent's son on March 16, 2006, support the conclusion that the subject premises were being used for illegal drug activity (see Royal Charter Props., Inc. v Vidal, 14 Misc 3d 139A [App Term, 1st Dept 2007] [drugs packaged for sale in apartment with numerous empty ziplock bags "warranted the conclusion that the subject apartment was a focal point of illegal drug activities and that tenant knew or should have known of the activities and acquiesced therein'"]). [*5]

Ronald is listed as a resident of the apartment on the housing agreement. NYCHA records indicate that respondent obtained a key to the apartment lobby for him, and Ronald kept clothing and his possessions in the bedroom of the premises in which he was found sleeping, a room which respondent herself admitted was Ronald's bedroom. Based upon these facts, it is clear that Ronald Villarreal resides with respondent. His conviction as a resident of the apartment violates the terms of respondent's housing agreement.

A rental agreement with a public housing authority imposes "strict liability" upon tenants to maintain a drug-free environment where the tenant had agreed to that condition in their lease (Dept. of Hous. and Urban Dev. v Rucker, 535 US 125 [2002]).[FN9] Where, as here, the premises are being used for illegal drug activity, the respondent may be evicted under a "strict liability" standard regardless of her actual knowledge of the illegal activity. "It is not 'absurd' that a local housing authority may sometimes evict a tenant who had no knowledge of the drug-related activity" (id. at 134; see also Satterwhite v Hernandez, 16 AD3d 131 [1st Dept 2005] [Rucker cited for the proposition that termination of a "tenancy did not depend upon whether petitioner knew that drugs were being stored in and sold from her apartment"]).[FN10]

Although the tenant's knowledge is not a requirement for eviction where the premises are being used for illegal drug activity (see Rucker, 535 US 125; Satterwhite, 16 AD3d 131), the evidence presented at trial supports a finding that respondent knew, or should have known, or acquiesced to, the illegal drug activity conducted out of her apartment. Respondent testified that there was no illegal drug activity occurring in her apartment, but that if, in fact, there were drugs found, they were for her son's personal use and not for business purposes. This statement, coupled with the quantity of drugs, drug packaging, and money found in the apartment, her son Ronald's extensive luxury sneaker collection, Ronald's unemployment, and the generally inconsistent and incredible nature of her testimony, are sufficient to raise an inference of knowledge (NYC Hous. Dev., LLC v Arias, 11 Misc 3d 138A [App Term, 1st Dept 2006] [court inferred knowledge and acquiescence when reviewing eviction trial]; NYCHA v Eaddy, 7 Misc 3d 131A [App Term, 1st Dept 2005]; see also Woody v Franco, 260 AD2d 186 [1st Dept 1999][finding that tenant knew of drugs' existence was supported by substantial evidence of large quantity of drugs ready for sale in bedroom although tenant asserted she was unaware of presence of drugs and son had permanently left apartment]; In Re Cruz v NYCHA, 282 AD2d 230 [1st Dept 2001] [heroin residue and ziplock bags [*6]were sufficient evidence to evict tenant]; Walker v Franco, 275 AD2d 627 [1st Dept 2000][court attributed knowledge to tenant by way of "blind ignorance" when tenant knew of scale's existence and son's probation but claimed she did not have knowledge]). Termination of a "tenancy d[oes] not depend upon whether petitioner knew that drugs were being stored in and sold from her apartment" (Satterwhite, 16 AD3d 131; see Rucker, 535 US 125). Even if respondent did not have actual knowledge of her son's drug activity, the only reason she would not have know is if she had "turned a blind eye" to her son's illegal activity.

IV. Conclusions

Accordingly, for the reasons set forth herein, this court awards petitioner a final judgment of possession. The warrant of eviction shall issue forthwith, with execution of the warrant stayed until July 31, 2007.

The clerk is directed to mail a copy of this decision to all parties.

This constitutes the decision and order of this court.

Dated:June 15, 2007

New York, NY

_________________________________DAVID B. COHEN, J.H.C.

TO:

New York County District Attorney's Office

Attorneys for Petitioner

One Hogan Place

New York, NY

By: Susan C. Roque, Esq.

Lenox Hill Neighborhood House

Attorneys for Respondent-Tenant,

Janeth Villarreal

331 East 70th Street

New York, NY

By: Nadya E. Rosen, Esq.

New York City Housing Authority

Law Department

Attorneys for Respondent-Landlord

250 Broadway, 8th Floor

New York, NY

By: John Cannavo, Esq. Footnotes

Footnote 1: Respondent's eldest daughter, Inez, is married and lives in New Jersey. A NYCHA Affidavit of Income and Family Composition document ("NYCHA Affidavit") dated March 25, 2005, list respondent's adult children, Rocio, Raul, Lila, Eugenio, and Ronald, as residing with her in the subject apartment. Although based on data from 2003, this is the most recent NYCHA Affidavit in respondent's file, according to Lewis Barnett, a NYCHA Housing Assistant at the building. The tenant is under a continuing obligation to provide updated information.

Footnote 2:Paragraph 12(r) of the lease states that it shall be the Tenant's obligation:

To assure that the Tenant, any member of the household, a guest, or another person under the Tenant's control, shall not engage in:

(i) Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the Development by other residents or by the Landlord's employees, or

(ii) Any violent or drug-related criminal activity on or off the Leased Premises or the Development, or

(iii) Any activity, on or off the Leased Premises or the Development, that results in a felony conviction[.]

Footnote 3:Laboratory analysis determined this to be 5/8 ounce and 15.6 grains of cocaine.

Footnote 4:In two other bedrooms of the premises, cash, airline tickets, a driver's license, and other items, were recovered.

Footnote 5: The other two occupants of the apartment were initially arrested, but charges were subsequently dismissed against them.

Footnote 6:Respondent identified her signature and handwriting on this document.

Footnote 7:Ronald is listed in the block on the form for "non-residents" of the apartment, whereas the other four children are listed in the block for "residents." The latter only provides four spaces, therefore, it is unlikely that Ronald was intentionally listed as a "non-resident" but rather, that respondent merely ran out of space in the "resident" block.

Footnote 8:Respondent initially testified that the police were lying about finding drugs in the apartment, but upon being confronted during cross-examination with her prior, inconsistent out-of-court statements, respondent conceded that any drugs recovered would have been for Ronald's "personal use" and maintained that no drugs were ever "sold" in her home.

Footnote 9:The housing agreement signed by the tenant in Rucker is substantially similar to section 12 (r) (ii) of the drug-free clause in respondent's NYCHA lease agreement. Moreover, the activity which has brought on this proceeding has resulted in a felony conviction as per section 12 (r) (iii) of respondent's lease.

Footnote 10:Furthermore, NYCHA supports respondent's eviction. Respondent argues that she should not be evicted because Rucker leaves discretion to the local public housing authority to determine whether a tenant should be evicted and provides factors that the housing authority could weigh in its determination. The weighing of these factors and the bringing of eviction proceedings by the housing authority are not, however, required by Rucker but placed within the discretion of the local housing authority (NYCHA). In fact, in this case NYCHA joins in this proceeding to evict respondent, and specifically requested that petitioner commence this proceeding.