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Tenant's Testimony on Ignorance of Illegal Activity in Apartment Called Not Credible

Posted by nyhawk on June 06, 2001 at 22:51:07:


New York Law Journal
June 6, 2001



Housing Trial Part r

Judge Bedford

This summary holdover proceeding was commenced by The New York City Housing Authority ("NYCHA") against respondent, Alicia Bryant ("Respondent"), seeking possession of the premises located at 415 Lafayette Avenue, Apartment 2-C, Brooklyn, New York 11238 ("Premises"). The building in which the Premises are located are commonly referred to as Lafayette Gardens Houses. NYCHA alleges that it is entitled to possession of the Premises pursuant to RPAPL 711(5) and 715(l) and the lease between the parties is void as against public policy pursuant to RPL 231(1).

Specifically, NYCHA alleges in its petition that: "Respondent and others acting with Respondent's knowledge, permission, or acquiescence, have been using and occupying the subject premises unlawfully for an illegal trade or manufacture or illegal business, to wit, the storage, packaging and/or sale of controlled substances in violation of Article 220 and 221 of the Penal Law of the State of New York." Respondent did not answer the petition and a general denial is deemed interposed.

A trial was held on April 24, 2001 (Tape # 9991, Counter #'s 187 to 1332; and 1570 to 2400). The Court makes the following findings of fact based upon the credible testimony of the witnesses and documents produced at trial and makes the following conclusions of law:

NYCHA is the owner and landlord of the Premises. Respondent is the tenant of record at the Premises pursuant to an expired written lease and she continues in possession on a month to month basis. The Premises are operated as subsidized public housing for lower-income residents of the City of New York pursuant to the Public Housing Law 401. The Premises are not subject to rent control, rent stabilization or the Housing Maintenance Code as it is exempt by statute.

Larry McQueen is a Detective with the City of New York Police Department ("NYPD"). His detective shield number is 7530. He has been employed by the NYPD for over nine years. He is currently stationed at the Brooklyn North Narcotics Unit. Detective McQueen has extensive training in the field of narcotics. His training began at the NYPD Police Academy with courses in identifying and "field testing" narcotics-cocaine, heroin and marijuana. He has personally conducted over five hundred arrests for narcotics and executed over two hundred search warrants relating to narcotics. He is a law enforcement expert in the area of narcotics and crimes involving narcotics.

On or about May 24, 2000, Detective McQueen obtained a search warrant relative to the Premises at Kings County Supreme Court. The search warrant was executed by Detective Larry McQueen at the Premises on Monday, March 29, 2000 at 4:30 p.m. The Detective credibly testified that when he went to the Premises to execute the search warrant he knocked on the door and stated "police", he was admitted inside the Premises by Ms. Evita Quimberly. Respondent, her two children (currently ages four and six), Mr. Dejauna Campbell and Ms. Evita Quimberly were present in the Premises at the time of the execution of the search warrant. Detective McQueen handcuffed all persons other than the children. When the Detective conducted the pedigree, he learned that Mr. Campbell and Ms. Quimberly lived in two other apartments within the same NYCHA apartment building.

The Detective testified that shortly after his entry to the Premises, Respondent told him that "you would probably find crack cocaine in the closet of my bedroom" which was the last room on the right from the entrance door. He went to that closet and recovered two hundred and one "ziplock bags" and three large "white rocks" believed to contain cocaine and crack cocaine rocks, respectively. The content of one ziplock bag was field tested and found to be cocaine. One suspected crack cocaine rock was field tested and determined to be crack cocaine.

He testified that the street value of each ziplock bag of cocaine found was ten dollars and the total crack cocaine rock recovered had a street value of two thousand to twenty-five hundred dollars. The Detective testified that it is not usual to find powdered cocaine along with crack cocaine rocks, as powdered cocaine is derived from the rocks.

The ziplock bag containing powdered cocaine, the other two hundred ziplock bags containing presumed powdered cocaine, the field tested crack cocaine rock and the two other presumed crack cocaine rocks were vouchered (Voucher #K 337254) and sent to the NYPD laboratory. The certified results showed that of eleven ziplock bags tested, all were found to contain powered cocaine. The rocks were all found to be crack cocaine.

Detective McQueen also testified he recovered from that same closet a black Walther 9MM pistol on a shelf which was stored at eye level with the butt in plain sight. Also present were fifteen rounds of 9MM ammunition. Upon finding the pistol, the detective "made it safe" by unloading the cartridges and securing it. The pistol was vouchered (Voucher #337256) and sent to the NYPD laboratory. The certified lab results show that the pistol was a 9MM caliber made in Germany (Serial #002647; Model #P88). The pistol and the ammunition were both found to be operable.

The Detective further testified he saw Mr. Campbell, who was present in the Premises at the time the search warrant was executed, place a clear ziplock bag of marijuana on the kitchen table. It field tested positive for marijuana. He also found an alleged marijuana cigarette on the kitchen table. Both were vouchered (Voucher #337261). Two digital scales were also recovered in the Premises. One scale was in Respondent's bedroom closet next to the cocaine and the other was found in the hall closet located near the entrance door of the Premises. The Detective testified these type of scales are used to weigh an amount of powdered cocaine which is then placed in the ziplock bags. The Detective also found approximately two hundred empty ziplock bags of various colors.

Detective McQueen concluded his testimony by stating that in his opinion based on his experience in narcotics and narcotics investigations, the Premises were being used to store and sell narcotics and were also being used for illegal business purposes.

Respondent testified that she had no idea her apartment was being used for an illegal activity. She testified she was unaware of any illegal activity in the Premises and that she did not tell the Detective where any drugs were located in the Premises. She alleges she first became aware of what was found at Premises after she was at the police precinct. She testified she resides at the Premises with her two children and her brother. Her brother came to live with her for what she believed would be a two week period which she said grew to four months. She testified that she believed her brother "was doing good", he had a job and was not violating the conditions of his probation. Respondent testified she is a licensed home health aide and has worked in that capacity since 1999. She testified she works anywhere from five to seven days a week with varying shifts.

On cross-examination, Respondent admitted that although she had been employed as a licensed home health care aide since 1999 and received a weekly paycheck, she had never indicated income derived from this source on any of her yearly income affidavits which are required to be submitted to NYCHA. On the income affidavits she submitted, she indicated her sole source of income to be that of public assistance. She also admitted that she failed to list her brother as an occupant at the Premises and to include his income on the affidavit as required by NYCHA regulations. Respondent also admitted that she knew of the presence of marijuana in the Premises.

The Court must determine which version of the events is true-Respondent's or Detective McQueen's. In weighing credibility of the witnesses at trial, the Court finds and determines that Detective McQueen's version of the facts to be the true version of what transpired on the day the search warrant was executed.

The fact Respondent would so openly and deliberately deceive NYCHA as to her income and her brother's presence and his income in order to keep her rent low, indicates to this Court that Respondent has no qualms about lying to serve her purposes. The omissions of this information on the income affidavits were intentionally deceptive and calculated to deceive NYCHA. This deliberate deception seriously compromises Respondent's credibility, casting a shadow on Respondent's testimony at trial.

Assuming there was no direct evidence of Respondent's knowledge of the illegal drug activity, the Court would make a factual determination as to whether under the totality of the circumstances it is dealing with pardonable ignorance or convenient indifference. NYCHA v. Ward, NYLJ, February 3, 1999 at 29, col 6. Applying this standard, the Court finds Respondent's protestation as to her lack of knowledge of the presence of the drugs and drug paraphernalia to be incredulous. Respondent did acknowledge that she knew of the presence of the marijuana. Respondent knew, or should have known, the Premises were being used to store and sell narcotics and also being used for illegal business purposes.

The Detective's credibility was never seriously questioned. Even if the Court was not faced with such an open and notorious admission by Respondent of knowledge of the drugs-"you would probably find crack cocaine in the closet of my bedroom"- the Court would still find that based upon the credible facts shown at trial Respondent was aware of the illegal activity in the Premises.

The Court finds that the presence in the Premises of the two scales which are used to weigh out portions of the powdered cocaine, the hundreds of empty ziplock containers used for storage of the powdered cocaine and the quantity of drugs recovered at the Premises, strongly supports the finding that the Premises were being used for illegal purposes. The testimony showed Respondent knew of the presence of marijuana in the Premises. "There comes a time when one must look, and when he looks, he must see. Convenient indifference should not be confused with pardonable ignorance." City of New York v. Goldman, 78 Misc2d 693; accord, Levites v. Francisco, NYLJ, January 15, 1993 at 21, col 5 (App Term, First Dept) and Farhadian v. Diaz, NYLJ, February 26, 1990 at 23, col 4. (App Term, First Dept). The Court finds and determines that the illegal activity being conducted in the Premises was known to Respondent.

The Court finds that Petitioner has proven its prima facie case. The petition is granted and a final judgment of possession is granted in favor of Petitioner. Issuance of warrant is forthwith and execution is stayed ten days.

This constitutes the decision and order of the Court.

Date Received: June 05, 2001

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