Opinion
025733/06.
Decided June 2, 2008.
John J. Cannavo, Esq. for Petitioner New York City Housing Department, 250 Broadway, 7th Floor, New York, NY 10007; DC-37 Municipal Employees Legal Services by Annette Bonelli, Esq. for Respondent.
This holdover proceeding brought pursuant to RPAPL § 711(5) and § 715, and RPL § 231(a) by the New York City Housing Authority sought respondent's eviction based on a claim that the subject apartment was being used for illegal commercial narcotics trade. The gravaman of petitioner's claim was that Lawrence Jackson, alleged boyfriend of tenant respondent Sharon Lipscomb, was using tenant-respondent's apartment as part of his commercial narcotics activities.
Background
During this jury trial, petitioner called two witnesses: a Ms. Jacklyn Gibbs, employed by the New York City Housing Authority (NYCHA) as a Housing Assistant at Sumner Houses, and petitioner's principle witness, Detective Maurice Hare of the New York City Police Department. Ms. Gibbs testified that the respondent herein was in possession of the subject premises at Sumner Houses pursuant to a lease signed by respondent and petitioner's designee. Ms. Gibbs also testified as to the respondent's "affidavit of income" used to verify the family composition and income for the household. Petitioner asked no questions of Ms. Gibbs as to the names of the occupants listed on the "income affidavit".
Detective Hare testified that Lawrence Jackson was the target of an investigation that resulted in a search of respondent's apartment on November 9, 2005. Detective Hare and other police officers entered respondent's apartment pursuant to a search warrant and allegedly found the following items which were vouchered according to police procedure:
(1) 46 purple top clear plastic vials containing crack;
(2) a plastic bag containing crack;
(3) a black 9 millimeter firearm with magazine;
(4) $ 2,033.00 in U.S. currency in various denominations;
(5) a clear plastic bag containing approximately 16 empty vials;
(6) four pieces of mail containing Mr. Jackson's name;
(7) a New York State Benefits Identification card for Mr. Jackson;
(8) A new York State Inmate identification card for Mr. Jackson.
As to where some of these items were found, Detective Hare testified as follows:
The 46 plastic vials containing crack along with a small bag containing crack were found inside Mr. Jackson's jacket which was lying on a couch in the apartment. $ 1700.00 of the $ 2033.00 recovered from the apartment was found in a dresser drawer in a bedroom. The firearm was discovered in the back of a closet on a high shelf, but in plain view according to Detective Hare.
Detective Hare also testified as to pictures taken at the subject premises of the 46 vials containing crack, the 9 millimeter gun, and some of the currency. Altogether, thirteen photographs were admitted into evidence showing $ 1700.00 in currency found in a dresser drawer, the jacket and the contents of the jacket, photographs of the gun as allegedly found in the closet, and as disassembled after being taken by police. There were no pictures taken of the empty vials found, nor of the four pieces of mail allegedly belonging to Mr. Jackson, nor of the photo ID's recovered.
As to the discovery of the gun in a bedroom closet, although Detective Hare testified as to his finding the gun in plain sight on a closet shelf near the top of the closet, he later stated on cross-examination that he was not the Detective who originally found the gun, and was not present when the gun was first discovered. He did, however, take a photograph of the gun as he saw it on the closet shelf. Detective Hare had no written notes as to the finding of the gun. He further testified that he could not testify about the condition of the closet because "another officer" had actually gone into the closet and located the gun, and that officer was not present in Court.
Detective Hare offered no testimony as to whether any evidence was uncovered that would demonstrate that Mr. Jackson was an "unauthorized occupant" of the subject apartment. Apparently, except for the jacket containing the vials of crack, no clothing or personal items of Mr. Jackson were found in the premises. Detective Hare testified only that based upon speculation, he assumed Mr. Jackson was an occupant of the subject apartment because he was in the apartment at the time the search warrant was executed, and his jacket was on the couch. Neither the four pieces of mail, nor a picture of these four pieces of mail were introduced as evidence in the trial.
The Court notes that although two forms of identification in the name of Lawrence Jackson were also found in the apartment, Detective Hare could not testify as to what address for Mr. Jackson, if any, was found on these identification cards. Neither the ID cards, nor pictures of the ID cards were entered into evidence by the petitioner.
According to Detective Hare, no chemicals or cutting agents commonly associated with the processing of crack cocaine were found in the subject apartment. In fact, Detective Hare testified that no paraphernalia associated with narcotics trade, including but not limited to, scales, measuring devices, vests, a safe or prerecorded drug-buy money were found in the apartment. He also testified that the drugs found inside Mr. Jackson's coat were the only drugs found in the subject premises.
As to respondent Lipscomb-Arroyo's role in the use of her apartment for alleged illegal drug activity, Detective Hare stated that she was not the "target of the investigation", and that respondent was not involved in any investigation for selling narcotics to his knowledge. Although the Detective testified that he knew that the respondent resided in the apartment with her three children, he did not know the children's ages. He testified that the children were not the "target of the investigation" either.
The sole person arrested on November 9, 2005, was Mr. Jackson, and he was arrested for possession of a gun. No charges were brought against Mr. Jackson, th this Court's knowledge, for possession of drugs or sale of illegal drugs. The Court has adduced from testimony at trial that although Mr. Jackson had previously been convicted of possession of illegal drugs, he has never been arrested or convicted for sale of illegal drugs.
After the close of Detective Hare's testimony, the respondent moved the Court to dismiss the petition on the ground that petitioner failed to meet its prima facie burden as to proof in support of its claim that the subject apartment was being used for illegal activity.
Applicable Law
Petitioner brings this proceeding seeking respondent's eviction pursuant to RPAPL § 711(5) AND 715, in addition to RPL § 231(a). 711(5) provides in relevant part:
A special proceeding may be maintained under this article upon the following grounds: (5) The premises, or any part thereof, are used or occupied as a bawdy-house, or house or place of assignation for lewd persons, or for purposes of prostitution, or for any illegal trade of manufacture, or other illegal business.
RPAPL § 715 sets forth the grounds and procedure for eviction where use or occupancy is alleged to be illegal. RPL § 231(a) provides that illegal activity voids the lease. Thus, the grounds for the instant proceeding do not involved an alleged lease violation, but rather the grounds are statutory. New York City Housing Authority v. Grillasca, 18 Misc 3d 524, 852 NYS2d 610 [N.Y.City Civ. Ct. 2007]
What Constitutes "illegal use"?
Neither the RPAPL nor the RPL defines what constitutes "illegal use." Spira v. Spiratone, 1148 Misc 2d 787, 789, 561 NYS2d 883 [N.Y.City Civ. Ct., 1990]. New York courts have created a five factor test to determine when a leased premises is being used for illegal purposes:
1. Are the activities in the leased premises "illegal"? If the conduct complained of is in violation of the Penal Law, eviction is allowed. This includes prostitution, gambling, drug trafficking and storing fireworks. See, New York Criminal and Civil Forfeitures Including Narcotics Eviction Proceeding, Steven L. Kessler (1999).
2. If the activities violate the Penal Law, do these activities also constitute "trade, manufacture or other business" pursuant to RPL § 231? Such activities must be commercial, that is they must involve the production, processing or merchandising of a commodity. "[T]he personal use of illegal drugs within a premises, even if habitual and customary, does not constitute an illegal use of that premises for purposes of RPL § 231 and RPAPL § 715 because such activity does not amount to a commercial activity or enterprise. Normandy Realty Inc. v. Boyer , 2 Misc 3d 407, 773 NYS2d 186 [N.Y.City Civ. Ct., 2003], citing to 1165 Broadway Corp. V. Dayana, 166 Misc 2d 939, 944, 633 NYS2d 724 [NY City Civ. Ct., 1995]; Clifton Court v. Williams, N.Y.L.J., May 27, 1998 [App. Term, 2d 11th Jud Dists].
To distinguish between personal use and business use, possession or sale, New York Courts consider factors such as, inter alia, the amount of drugs and the kind of packaging, large amounts of cash, customer lists, weapons, a safe and scales. N.Y.Co. Dis't Attorney's Office v. Geigel, N.Y.L.J., Dec. 27, 1991, at 24, col 6.
3. Is the "use" continual? A single act does not constitute a business or commercial use. N.Y.C.Hous. Auth. v Doney, N.Y.L.J., Feb. 3, 1998, p. 29, col.5. To warrant eviction for illegal use of the premises, the use of the premises for illegal purposes implies doing something customarily or habitually. Normandy Realty Inc. at 189.
4. Are the premises to be recovered involved in the illegal activity? The landlord-petitioner must demonstrate that the premises were used to further an illegal business. City of New York v. Omolukum, 177 Misc 2d 796, 801-02, 676 NYS2d 917, 922 [N.Y.City Civ. Ct. 1998]. A sufficient nexus must exist between the operation of the illegal business and the complained-of premises. RRW Realty Corp. V. Flores, N.Y.L.J., Feb. 10, 1999, at 28, col.3. But see also City of NY v. Rodrequez, 140 Misc 2d 467, 531 NYS2d 192 [N.Y.City Civ. Ct. 1988], which held that common areas of a building including the street in front of an apartment constitutes the premises for purposes of a drug holdover.
5. Did the tenant of record know or should the tenant have known about the illegal business and acquiesce regarding the activity? Under New York law, it must be shown by a preponderance of the evidence that the tenant-respondent "knew or should have known" and turned a "blind eye" to the illegal business. City of New York v. Omolukum, 177 Misc 2d 796, supra at 921. The applicable burden of proof for petitioner is to show "that the tenant knew or acquiesced in the illegal use of her apartment." Normandy Realty Inc. v. Boyer , 2 Misc 3d 407, [2003], supra, citing to Lloyd Realty Corp. V. Albino, 146 Misc 2d 841, 552 N.Y.S 2d 1008[ NY City Civ. Ct. 1990]; Pueblo Nuevo Assocs. V. Watkins, N.Y.L.J., April 13, 1987 at 17, col. 3; 1820-1838 Amsterdam Equities v. Brada, N.Y.L.J., Oct. 30, 1996, at 23, col. 4; Paragon Realty Corp. V. Kelly, N.Y.L.J., Oct. 30, 1996 at 27, col. 2.
Case law has developed a number of factors to determine whether a tenant knew or should have known: (1) whether the drugs and paraphernalia were in plain view; (2) the size of the premises (smaller apartment means harder to show that the tenant of record did not know about drug business; (3) the drug-arrest history of the named tenant or occupant alleged to have committed the illegal activity; (4) foot traffic in and out of the premises; and (5) the connection between the person in possession of the contraband and the leased premises where illegal business is alleged to have occurred.
The Court wishes to acknowledge an article entitled "Drug Holdover Proceedings: An Overview From Knew' to Should Have Known', to Strict Liability'" by Honorable Gerald Lebovits and Douglass J. Seidman, and the 2007 Judicial Seminar materials on Drug Holdovers developed by Honorable Lebovits and Honorable George Heymann for their analyses of the "drug holdover law".
New York's "knew or should have known" Standard versus Department of Housing and Urban Development v. Rucker's Standard of "strict liability".
Petitioner contends that pursuant to a decision rendered in the U.S. Supreme Court captioned Department of Housing and Urban Development v. Rucker, 535 U.S. 125, 122 S. Ct. 1230 (2002), a standard of "strict liability" applies to criminal activity occurring in a public housing authority apartment for cases brought pursuant to New Yorkstatutes RPAPL § 711(5) and 715, and RPL § 231(a). Under the standard of "strict liability", a tenant is presumed to have agreed to be responsible for any drug-related activity and to be subject to eviction should such illegal activity occur regardless of whether there is actual knowledge or acquiescence by the tenant. The "strict liability" standard in Rucker flows from the lease between the tenant and the public housing authority.
The Court in Grillasca determined that proceedings under RPAPL § 711(5) and 715 are not based on NYCHA lease violations, but on the language and provisions of the statute. See New York City Housing Authority v. Grillasca, 18 Misc 3d 524, supra . Therethe Court reasoned, the "strict liability" standard of Rucker does not apply to cases brought pursuant to the RPAPL sections as above, or to the provisions of RPL 231(a)which states that the lease is void when illegal commercial activity is the basis for an eviction proceeding. The standard as developed by the New York courts applicable to these statutes is that the tenant either knew or should have known of the illegal activity in an eviction proceeding. Kings County Dist. Attorney's Off. V. Freshley, 160 Misc 2d 302, 608 NYS2d 788 [N.Y.City Civ. Ct. 1993], citing to Lloyd Realty Corp. V. Albino, 146 Misc 2d 841, and cases cited therein; Pim Consultants Corp. V. Santos, N.Y.L.J., Feb. 21, 2001, at 25, col 5; Howard Avenue Associates v. Rojas, N.Y.L.J., April 5, 2002, at 20, col. 6; Normandy Realty Inc. v. Boyer , 2 Misc 3d 407, supra, citing to: Pueblo Nuevo Assocs. V. Watkins, N.Y.L.J., April 13, 1987 at 17, col. 3; 1820-1838 Amsterdam Equities v. Brada, N.Y.L.J., Oct. 30, 1996, at 23, col. 4; Paragon Realty Corp. V. Kelly, N.Y.L.J., Oct. 30, 1996 at . 27, col. 2.
Note that Normandy Realty Inc., Id. as well as Howard Avenue Associates, Id. were decided after the decision in Rucker was announced.
While some New York courts have decided that the standard of "strict liability" announced in Rucker may apply to eviction proceedings brought under RPAPL 711(5) and 715, those decisions still contain an analysis of the evidence based on the standard that the primary tenant either knew or should have known of the illegal activity as part of the prima facie case. See, for example, New York County Dist. Attorney's Off. V. Villarreal, 847 NYS2d 897, 2007 {16 Misc 3d 1109(A)} WL 20113126 [NY City Civ. Ct. 2007]; TPE 710 RSDv. McKenny, N.Y.L.J. Jan. 9, 2008, at 27, col. 1; Matter of 88-09 Realty, LLC v. Hill, 305 AD2d 409, 757 NYS2d 904 [N.Y.AD2d Dept. 2003].
Even the Appellate Term, Second Department in its decision in New York City Housing Authority v. Taylor, 6 Misc 3d 135(A), 800 NYS2d 35 [App. Term, 2d Dept. 2005] analyzed the tenant's culpability under the standard that the "petitioner must show that the tenant knew or had reason to know of the activity and acquiesced therein. The facts in Taylor upon which that Court found that the tenant "knew or should have known" were these. The tenant's son sold crack cocaine to an undercover police officer in the building's lobby, in the hallway in the building, and at the door to the tenant's apartment. After police executed a search warrant, an operable gun, bullets additional illegal narcotics were discovered and were not in plain view, but a large sum of money in the son's room was in plain view from the son's room to the rest of the apartment.
The Taylor Court, though, went further and added that since the tenant had agreed pursuant to the tenant's lease with NYCHA "to be responsible for any drug-related activity and subject to an eviction therefor, tenant is charged with knowledge of the activity in her apartment and is deemed to have acquiesced therein". New York City Housing Authority v. Taylor, Id. The Taylor Court, however, did not addressed the fact that since that matter was brought pursuant to RPL § 231, the lease between the tenant and NYCHA was void as a matter of statute at the time of the trial.
The Taylor case can be distinguished from the instant matter in that in Taylor, the tenant's son was arrested on three different occasions selling drugs to an undercover police officer on Housing Authority property and once in front of the subject apartment. In addition, in the son's room there was a large amount of cash in plain view. In the instant case, the only arrest made was on the day the search warrant was executed, and the person arrested was arrested for possession of a gun. Also the person arrested, Mr. Jackson, was not shown to have had any relationship other than that of an acquaintance to the respondent.
Finally, the Appellate Division, First Department has made clear that the standard of "knew or should have known" is one of two elements of a commercial illegal drug activity case is brought pursuant to RPAPL § 711(5) and 715, and RPL § 231(a). Further, the analysis of whether a tenant "knew or should have known" must be based on the record before the court and not from inferences or speculation. 855-79 LLC. V. Salas, 40 AD3d 553, 837 NYS2d 631 [App. Div. 1st Dept. 2007]..
In Salas, the Appellate Division reversed a decision by the Appellate Term which found that the trial court had ruled, incorrectly, that the landlord in Salas failed to meet its burden of proof as to the tenant's acquiescence in her grandson's drug activity and wrongly dismissed the petition,. The appellate term found that the elderly and disabled tenant should have known her son and grandson kept drugs hidden in the apartment, after drawing a negative inference from the grandmother's failure to testify at trial.
The Appellate Division found that "on the record, no valid line of reasoning could possibly lead to the conclusion that the tenant know or should have known of the drugs in her apartment. Certainly, there was no testimony to that effect. Nor were they any obvious signs of drug trade in the apartment, or any evidence that the tenant would have known what those signs were. . . . Tenant, a spetuagenarian, suffers from a serious thyroid condition that adversely affects her vision. Both her vision and hearing had sharply declined in the five years preceding the trial". Salas, Id. at 555. The Court concluded: "Based on this record, we find this elderly, disabled tenant should not have to forfeit her right to a rent-stabilized apartment when her son, who was living with her temporarily, and her grandson, who stayed only occasionally, were charged with possession with intent to sell. Indeed, there is insufficient evidence to permit an inference that tenant was aware of any illegal drug activity". Salas, Id. at 556.
NYCHA Has Venue Available To Determine Illegal Use and Apply Strict Scrutiny
The decision in Rucker applies to public housing authorities and the leases that create the landlord tenant relationship. In New YorkCity, NYCHA has a choice to invoke the administrative process wherein the tenant is sent a notice setting forth chargesand the facts underlying the charges, and a hearing may follow unless NYCHA decides to settle the matter by stipulation. Should a hearing take place, the standard for termination of the tenancy in a commercial drug breach of the lease matter is "strict liability". The hearing officer, however, does have the discretion to look at all the facts and circumstances and decide whether or not "strict liability" should be applied. See, Saving One's Home: Collateral Consequences for the Innocent Family Members, by Barbara Mule and Michael Yavinsky: New York University Review of Law and Social Change.
NYCHA can also choose to bring an illegal commercial drug case to court as it did in the instant matter. See, Escalera v. N.Y.C. Hous. Auth., 924 F. Supp. 1323 [S.D.N.Y.1996]. This choice, however, brings with it a determination under New York law. Any illegal commercial drug "holdover" must be brought pursuant to RPL § 231(a) which provides that the lease between the parties is void as a matter of law. Legislative history shows that the statute was enacted to allow landlords to bring tenants alleged to be involved in illegal commercial activity to court without having to first terminate the lease and/or go through an administrative process. If NYCHA chooses this venue than the lease between the parties is void per statute. That is the sole reason that in this case the respondent could demand a jury trial normally waived by the tenant in a typical NYCHA lease.
Law Governing Illegal Use Proceedings Brought Pursuant to New York Statute
In the instant action brought pursuant to RPAPL § 711(5) and 715, and RPL § 231 (a), the Court concludes that the applicable law in this matter is that announced in Howard Ave. Assoc. V. Rojas, N.Y.L.J., Apr. 5, 2002, at 20, col 6.: To prevail in this proceeding, the petitioner must allege and prove two (2) things: (1) that the alleged use itselfconstituted an illegal trade or business and (2) that the tenant knew or acquiesced in the illegal use in her/his apartment. The burden is upon the petitioner to provide by a preponderance of the credible evidence that the subject premises was used to facilitate trade in drugs and further that the respondent knew or acquiesced in the illegal drug activity. Lloyd Reality Corp. V. Albino, Id.
Facts of the Instant Matter Applied to the Law
Petitioner's case at trial consisted of the testimony of two witnesses and various photographs and documents. As to the elements constituting the first prong of illegal use, the Court finds as follows:
1. Was the conduct complained of illegal? The only evidence introduced by petitioner as to illegal conduct were vials of crack found in the coat pocket of Maurice Jackson; a small bag of crack; evidence of un-prerecorded money; empty vials; 4 pieces of mail with Maurice Jackson's name, but no evidence about what address if any was on the mail; and two ID cards, again without evidence as to what address if any was found on the ID cards. A gun was alleged to have been found in plain view on the top shelf of a closet in a bedroom in the subject premises, but no evidence was offered as proof that the gun was in plain view. The vials of crack and small bag containing crack were located in Maurice Jackson's jacket, and were not in plain sight.
Further, "the personal use of illegal drugs within a premises, even if habitual and customary, does not constitute an illegal use of that premises for purposes of RPL § 231or RPAPL 715(1)." 1165 Broadway Corp. V. Dayana, 166 Misc 2d 939, supra .
2. Was the premises being used to conduct a narcotics business? In order to distinguish personal use from business use, items or conduct must be shown that indicate a business. In the instant matter, the witness Detective Hare testified that no scales, prerecorded money, no packaging, no substances used to cut drugs, no customer lists, or paraphernalia were found in the premises. Further no witnesses were asked by petitioner to testify as to customer traffic in and out of the premises, or any other indicators of a commercial business. No evidence was offered of any drug arrests made on or near the premises, and indeed, Maurice Jackson was arrested for possessing an illegal gun. He was not arrested for any drug related offence on November 9, 2005 during the execution of the search warrant herein. No member of respondent's family was arrested, nor was respondent arrested.
3. Was the use of the premises for the illegal drug activity continual and habitual? Petitioner offered no proof of even a one-time occurrence of a drug sale on the premises. Even a single act does not satisfy the "use" requirement in any event. N.Y.C. Hous. Auth. V. Boney, N.Y.L.J. Feb. 3, 1998, at 29, col.5.
4. What was the relationship between the tenant-respondent and Maurice Jackson? Petitioner did not call the respondent as a witness, nor was Mr. Jackson a witness at this trial. Petitioner's witness, Detective Hare, did not testify as to finding any clothing or personal belongings of Mr. Jackson in the subject apartment, other that the jacket wherein the drugs were found, and the gun allegedly found in plain sight on a high shelf in a closet. There were pieces of mail found along with ID cards, but no testimony was offered as to the addresses on these items, if any. Seventeen hundred dollars was found in a dresser drawer, and the rest of the money was found in Mr. Jackson's possession. None of the money was prerecorded drug sale money. Detective Hare testified that Mr. Jackson alone was the "target" of the investigation his office.
5. Had anyone in the household been arrested for drug related activities or possession? The only person having a prior arrest was Mr. Jackson. His prior arrest was for possession of a controlled substance. Since the respondent was not called as a witness by petitioner, there is no evidence that respondent knew anything about respondent's prior arrest.
Findings
Based on the above the Court finds that petitioner did not meet its prima facie burden on the first prong of the Howard Ave. Assoc. test: that "the alleged use itself constitutes an illegal trade or business". Petitioner offered no evidence of any kind that would tend to demonstrate any trade or business at was being conducted in the subject premises. In fact, Mr. Jackson was arrested for possession of a gun, and not on any drug charges at all. No one else in the household was arrested for any drug charges. Thus, there petitioner presented virtually no indicia of illegal drug trade being conducted from respondent's apartment.
Although the second prong need not be analyzed, the Court also finds that petitioner presented no evidence that respondent either knew or should have known Mr. Jackson was conducting illegal drug trade from her apartment. The only items identified as being in plain view were the pieces of mail and ID cards that may have belonged to Mr. Jackson, and a gun, which was allegedly in plain view although no admissible evidence was presented as proof of that allegation. The vials containing crack, some money and a bag containing crack were all found in Mr. Jackson's jacket not in plain view. No evidence of any paraphernalia commonly used in illegal drug trade was found during the search of the premises.
Conclusion
The Court is well aware that often times public housing projects become areas where drug trade is rampant and tenants are placed in fear of their safety and the safety of their families. Residents of public housing deserve to live in a drug free environment, and should not have to fear walking out of their apartments into harm's way. At the same time, mere allegations, unsubstantiated by actual evidence of illegal drug activity, cannot and should not be used to evict tenants. Speculation cannot replace admissible evidence to deprive some one of her/his home. Those who are "innocent tenants" have not been evicted under New York State law where there exists no evidence that they knew of the illegal activity or should have known. "The forfeiture of public housing accommodations is a drastic penalty because, for many of its residents, it constitutes a tenancy of last resort". Holiday v. Franco, 269 AD2d, 138, 709 NYS2d 523 (App.Div. 1st Dept.,2000) Many tenants in public housing are the fragile elderly, or disabled mentally or physically, and public housing is, indeed, the housing of last resort for them. These are often the very same tenants whose grandchildren, children, care giver or other third person engages in illegal activity over which the tenant has no control or knows nothing about.
Accordingly, respondent's motion to dismiss is hereby granted.
This constitutions the decision/order of the Court.