McLurkin v. Hernandez

Appellate Division of the Supreme Court of New York

McLurkin v. Hernandez

44 A.D.3d 496, 843 N.Y.S.2d 305

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

DecidedOctober 18, 2007

StatusPublished

Cited by1 cases

This text of 44 A.D.3d 496 (McLurkin v. Hernandez) 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

McLurkin v. Hernandez, 44 A.D.3d 496, 843 N.Y.S.2d 305 (N.Y. Ct. App. 2007).

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Opinion

Determination of respondent New York City Housing Authority (NYCHA), dated March 13, 2006, which permanently excluded petitioner’s son from her apartment on the ground of nondesirability, and placed petitioner on probation for one year to ensure her compliance with the exclusion, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Joan A. Madden, J.], entered January 4, 2007), dismissed, without costs.

The finding of nondesirability is supported by substantial evidence that petitioner’s son unlawfully possessed a handgun on NYCHA grounds and resisted arrest, in particular, the testimony of one officer that he saw a handgun in the son’s waistband, and the uncontroverted testimony of both officers that the son struggled with them even though they were both in uniform. We have considered and rejected petitioner’s challenges to the hearing officer’s findings of credibility bearing on the son’s possession of a handgun (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]). The penalty of permanent exclusion of the son does not shock our conscience. His possession of a handgun on NYCHA grounds posed a clear danger to NYCHA’s residents and employees (see Matter of Featherstone v Franco, 95 NY2d 550 [2000]). Concur—Nardelli, J.P., Gonzalez, Sweeny, McGuire and Kavanagh, JJ.

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Determination of respondent New York City Housing Authority (NYCHA), dated March 13, 2006, which permanently excluded petitioner’s son from her apartment on the ground of nondesirability, and placed petitioner on probation for one year to ensure her compliance with the exclusion, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Joan A. Madden, J.], entered January 4, 2007), dismissed, without costs.

The finding of nondesirability is supported by substantial evidence that petitioner’s son unlawfully possessed a handgun on NYCHA grounds and resisted arrest, in particular, the testimony of one officer that he saw a handgun in the son’s waistband, and the uncontroverted testimony of both officers that the son struggled with them even though they were both in uniform. We have considered and rejected petitioner’s challenges to the hearing officer’s findings of credibility bearing on the son’s possession of a handgun (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]). The penalty of permanent exclusion of the son does not shock our conscience. His possession of a handgun on NYCHA grounds posed a clear danger to NYCHA’s residents and employees (see Matter of Featherstone v Franco, 95 NY2d 550 [2000]). Concur—Nardelli, J.P., Gonzalez, Sweeny, McGuire and Kavanagh, JJ.

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Bluebook (online)

44 A.D.3d 496, 843 N.Y.S.2d 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclurkin-v-hernandez-nyappdiv-2007.

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