Dubose v. New York City Housing Authority

Appellate Division of the Supreme Court of New York

Dubose v. New York City Housing Authority

113 A.D.3d 423, 977 N.Y.2d 887

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 9, 2014

StatusPublished

This text of 113 A.D.3d 423 (Dubose v. New York City Housing Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dubose v. New York City Housing Authority, 113 A.D.3d 423, 977 N.Y.2d 887 (N.Y. Ct. App. 2014).

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Opinion

Supreme Court properly determined that transfer of the proceeding pursuant to CFLR 7804 (g) was not required since the issues raised in the petition concerned the penalty imposed rather than the charges of nondesirability (see e.g. Matter of Kerney v Hernandez, 60 AD3d 544 [1st Dept 2009]). Even were we to conduct a de novo review, petitioner’s guilty plea to the criminal charge involving illegal drug activity in his apartment established the nondesirability charges (see Grayes v DiStasio, 166 AD2d 261, 262-263 [1st Dept 1990]).

Despite the existence of mitigating factors, the penalty of termination does not shock one’s sense of fairness, particularly in view of the danger to others posed by petitioner’s illegal drug activity (see Matter of Chandler v Rhea, 103 AD3d 427 [1st Dept 2013]). The Hearing Officer was entitled to reject the testimony of petitioner’s expert as to his low risk of recidivism, even in the absence of a contrary expert opinion (see Felt v Olson, 51 NY2d 977, 979 [1980]).

We have considered petitioner’s remaining arguments and find them unavailing. Concur — Gonzalez, P.J., Tom, Renwick, Manzanet-Daniels and Feinman, JJ.

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Supreme Court properly determined that transfer of the proceeding pursuant to CFLR 7804 (g) was not required since the issues raised in the petition concerned the penalty imposed rather than the charges of nondesirability (see e.g. Matter of Kerney v Hernandez, 60 AD3d 544 [1st Dept 2009]). Even were we to conduct a de novo review, petitioner’s guilty plea to the criminal charge involving illegal drug activity in his apartment established the nondesirability charges (see Grayes v DiStasio, 166 AD2d 261, 262-263 [1st Dept 1990]).

Despite the existence of mitigating factors, the penalty of termination does not shock one’s sense of fairness, particularly in view of the danger to others posed by petitioner’s illegal drug activity (see Matter of Chandler v Rhea, 103 AD3d 427 [1st Dept 2013]). The Hearing Officer was entitled to reject the testimony of petitioner’s expert as to his low risk of recidivism, even in the absence of a contrary expert opinion (see Felt v Olson, 51 NY2d 977, 979 [1980]).

We have considered petitioner’s remaining arguments and find them unavailing. Concur — Gonzalez, P.J., Tom, Renwick, Manzanet-Daniels and Feinman, JJ.

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Bluebook (online)

113 A.D.3d 423, 977 N.Y.2d 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dubose-v-new-york-city-housing-authority-nyappdiv-2014.

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