One Strike and You’re out… of Your Home?
Defending Against the Housing Consequences of Drug-Related Arrests
November 13, 2015
Shantonu Basu, Staff Attorney, Northern Manhattan Improvement Corporation
Runa Rajagopal, Supervising Attorney, The Bronx Defenders, Civil Action Practice
I. Drug-related Activity and Housing Consequences
A. Drug Arrests in the U.S- what do the statistics say?
B. Housing Consequences
1. Illegal Use Proceeding (Housing Court)
a. By operation of 3 statutes: RPL § 231(1), RPAPL § 711(5), RPAPL § 715
1) RPL § 231 voids the lease; RPAPL § 711(5) gives Landlord cause of action to evict; RPAPL § 715(1) authorizes other parties to evict and establishes presumptions.
2. Nuisance Abatement (Supreme Court)
a. The City of New York may bring an ex parte motion in Supreme Court for a temporary closing order to abate so-called “public nuisances” under New York City Administrative Code § 7-701 et seq., resulting in immediate eviction without notice, and for a preliminary and permanent injunction.
3. Public Housing/NYCHA terminations (administrative hearing)
(42 U.S.C. § 1437d(l); 24 C.F.R. § 966.4)
a. Mandatory Termination: The following categories of current public housing residents WILL have their subsidies terminated and be evicted from public housing:
1) Persons Convicted of Methamphetamine Production on the premises of federally assisted housing:
b. Discretionary Termination: The following categories of residents MAY be terminated:
1) Persons Engaging in Illegal Use of a Drug:
2) Persons Abusing Alcohol:
3) Persons Furnishing False Information: Any person who furnished false or misleading information concerning illegal drug use, alcohol abuse, or rehabilitation of illegal drug users or alcohol abusers;
4) Persons Engaging in Criminal Activity
(a) Drug Crime On or Off the Premises:
if any tenant, member of the tenant’s household, or guest engages in any drug-related criminal activity on or off the premises, or any other person under the tenant’s control engages in any drug-related criminal activity on the premises;
(1) Warning: PHA’s have the authority to evict for drug-related activity even if the tenant did not know, could not foresee, or could not control behavior by other occupants or guests. Dep’t of Housing & Urban Dev. v. Rucker, 535 U.S. 125 (2002).
4. NYCHA Termination for “Non-desirability”
See generally NYCHA Management Manual – Chapter VII, Sec. III & IV, “Termination of Tenancy,” and Appendix B – “Termination of Tenancy – Non-Desirability Actions”)
1) NYCHA tenants can have their subsidies terminated (in an administrative hearing, which leads to an eviction in Housing Court) for their conduct or the actions of any person occupying the premises of the tenant which constitutes:
2) A danger to the health and safety of neighbors;
3) A sex or morals offense on or near the NYCHA premises;
4) A source of danger or a cause of damage to NYCHA employees or property;
5) A danger to the peaceful occupation of other tenants;
6) A common law nuisance.
5. Section 8 Subsidy Terminations (administrative hearing)
(24 C.F.R. §§ 982.551, 982.552, 982.553)
II. What should you know about the criminal case? From arrest to disposition
A. Differences between Criminal and Civil Courts
B. What kind of arrest was it?
1. Search warrant (see C.P.L. §§6890.05 to 690.55)
a. How does the NYPD obtain a search warrant?
b. Finding out the ‘target’ of the search warrant
c. Limiting the scope of testimony re: search warrant and alleged ‘controlled buys’
2. “Buy and bust”
C. Common dispositions and sentences
1. Dismissal
2. Disorderly conduct (see N.Y.P.L. § 240.20)
3. “ACD”: Adjourned in Contemplation of Dismissal (see C.P.L. §§170.55, 170.56)
4. “CD”: conditional discharge (see N.Y.P.L. §§65.05, 65.10)
a. CDs are typically for 1 year in duration; however, you can use this opportunity to work with the criminal defense attorney to leverage the potential civil consequences of a 1 year CD to get the CD shortened to 6 months or less.
5. Acquittal after trial
D. Open cases vs. convictions
III. Illegal Use Proceedings
A. Elements of Landlord’s case
1. Landlord, usually with assistance and insistence of the District Attorney (in New York City, each borough has a special Narcotics Eviction Unit), must prove that tenant used the premises “as a bawdy-house, or house or place of assignation for lewd purposes, or for purposes of prostitution, or for any illegal trade or manufacture, or other illegal business.” RPAPL § 711(5).
2. Elements: (a) illegal conduct, (b) engaged in a business, (c) on more than one occasion, (d) involving the premises to be recovered, (e) with the participation, knowledge, or passive acquiescence of one or more of the tenants of record.
a. “Used for the illegal trade” usually means more than one sale (New York City Housing Authority v. Grillasca, 18 Misc. 3d 524 (Civ. Ct., N.Y. Co. 2007))
b. “Knew or should have known” Usually have to show a large quantity of drugs. (855-79 LLC v. Salas, 40 A.D.3d 553 (1st Dept 2007).
c. Differences between these standards and Rucker administrative hearings.
B. Pre-Trial Litigation and Advocacy Strategies
1. Pre-Answer pleadings:
a. Motion to dismiss
1) Notice of Termination
2) Use of sealed records (see C.P.L. §§160.50, 160.55, 160.58, 720.25)
3) Statute of limitations
4) Failure to state a cause of action
5) Inconsistent Theories
2. If MTD is denied, then:
a. Verified Answer, Demand for a Verified Bill of Particulars, and Jury Demand*
b. The filing of a Jury Demand is generally predicated on the case being commenced pursuant to R.P.L. § 231.
1) Where your client resides in a federally subsidized building not under the Section 8 program, look carefully through the last residential lease agreement and any additional lease riders for illegal jury waiver provisions. (See e.g. 24 C.F.R. § 92.253, which explicitly states that a lease under the HOME program may not contain an “[a]greement by the tenant to waive any right to a trial by jury.”)
c. Discovery (see C.P.L.R. §408)
1) See also C.P.L.R. §3124 Failure to disclose; motion to compel disclosure.
2) Obtaining video evidence
d. Surviving a Motion for Summary Judgment
C. Limiting the Role of the District Attorney’s office
1. The DA’s Narcotics Bureau and the “Narcotics Eviction Program” (“NEP”)
a. How does the DA’s office find out about these cases?
b. What legal authority does the DA’s office have to be involved in housing court proceedings?
2. Opposing the DA’s efforts to intervene as a “necessary party”
3. When the DA can be beneficial to our client’s case
D. TRIAL: Defeating landlord’s case
1. WHAT DO YOU KNOW?
2. DISCOVERY/DOCUMENTS/VIDEO
3. CROSS EXAMINATION
a. Arresting officer
b. A video tech
c. A non-police “expert.” Exploring whether a non-police expert can ever prove the existence of actual drugs.
E. POST TRIAL
1. Post-Trial Brief/Memo
2. Usual themes: Plain sight, portability or hideable nature of contraband, amounts recovered, disability of tenant, subsequent criminal penalties
IV. RESOURCES
A. The Bronx Defenders’ Guide: “The Consequences of Criminal Proceedings in New York State: A guide for Criminal Defense Attorneys, Civil Legal Services Attorney and other Reentry Advocates.”
B. Reentry.Net
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