Petitioner, Rosie Rolon, proceeding pro se, brings this Article 78 proceeding, seeking to annul the determination by respondent, the New York City Housing Authority ("NYCHA" or the "Authority"), to terminate her tenancy. The final determination is set forth in a "Determination of Status" that was issued by NYCHA on July 9, 2008, which approved a June 26, 2008 decision by Hearing Officer Arlene Ambert.

Petitioner, who was born in 1954 and is currently fifty-four (54) years old, lives in Apartment 4B at 230 Clinton Street in Manhattan (the "Apartment"), which is part of the LaGuardia Houses housing project ("LaGuardia Houses"). LaGuardia Houses is operated and maintained by NYCHA.

The circumstances that led to the determination to terminate petitioner's tenancy arise from an incident that occurred on September 2, 2007. On that date, police officers executed a search warrant at the Apartment, which led to petitioner's arrest, and the arrest of Anibal Diaz, a man who was also present in the Apartment. [*2]

By letter dated September 27, 2007, Joyce Wells, the Housing Manager of LaGuardia Houses, advised petitioner that termination of her lease was being considered on the grounds of non-desirability and having an unauthorized occupant in the Apartment. An appointment was scheduled for that same day at 9:30 a.m., although petitioner was informed that she could arrange another appointment. Petitioner did in fact meet with management that day, and discussed the possible charges against her. According to respondent's papers, during that meeting, petitioner identified the male who was in her Apartment as her boyfriend, and said that he uses the Apartment for illegal drug sales. By notice dated October 2, 2007, the Housing Manager informed petitioner that she was referring the matter for charges against petitioner, and that petitioner had the right to retain legal counsel.

A Notice and Specification of Charges, dated November 26, 2007, was sent to petitioner to notify her that a hearing was scheduled for Thursday, December 13, 2007. Petitioner was charged with non-desirability in relation to the drug possession and the attempt to tamper or conceal evidence by Anibal Diaz (see, infra). She was further charged with a breach of rules and regulations in that Mr. Diaz was alleged to be residing in the Apartment without the Housing Manager's authorization or consent, and for failing to stop Mr. Diaz from engaging in illegal activity in the Apartment. The charges set forth that petitioner's continued occupancy constitutes: a danger to the health and safety of her neighbors; conduct which is in the nature of a morals offense; a source of danger or cause of damage to employees, premises or property; a source of danger to the peaceful occupation of the other tenants; or, a common law nuisance.

The hearing commenced on December 13, 2007; on that date, petitioner requested an adjournment to retain counsel, which was granted. The hearing was adjourned until January 16, 2008. On that date, petitioner stated that she had not yet retained counsel, but had spoken with potential counsel who was deciding whether or not to represent her. Petitioner requested another adjournment. The Hearing Officer determined that NYCHA would present its direct case and that petitioner would be entitled to cross-examine its witnesses. But, petitioner was granted an adjournment to retain counsel, and the Hearing Officer specifically set forth that counsel could further cross-examine the Authority's witness and then present evidence on petitioner's direct case. The Hearing Officer stated on the record that if petitioner retained counsel, counsel could come in to listen to the tape of the testimony that was elicited by NYCHA.

On January 16, 2008, NYCHA entered into evidence a copy of petitioner's lease and her October 2006 Income Affidavit. Both documents reflect that petitioner is the only authorized occupant of the Apartment.

The Authority called as a witness Detective James Lake, an investigator with the Narcotics Division of the New York Police Department (the "NYPD"). Detective Lake testified that on August 29, 2007, a search warrant was obtained for the Apartment because on two prior occasions, the NYPD had purchased narcotics at that location. Detective Lake testified to the effect that a female Hispanic had sold heroin at that location, which was evidenced by the NYPD Property Clerk voucher for nine glassines of heroin. The warrant was executed on September 2, 2007 at 6:00 a.m. At the [*3]time the warrant was executed, petitioner and an adult male were present in the Apartment.

According to the officer's report, he observed both petitioner and an individual identified as Anibal Diaz in the Apartment together, during which time the officer recovered from the bedroom thirty (30) bags of a substance which later proved to be heroin. The police recovered one bundle containing ten (10) bags of heroin from the bathroom of the Apartment. At the time the heroin was seized, Mr. Diaz was inside the bathroom of the Apartment, and the bathroom toilet was observed to be overflowing. It is further asserted in the criminal complaint that Mr. Diaz blurted out, in substance, "I flushed a bundle down the toilet, I was trying to flush both but I dropped one and then you [referring to the officer] found it." Petitioner and Mr. Diaz were charged with a violation of Penal Law § 220.16(1), Criminal Possession of a Controlled Substance in the Third Degree (knowing and unlawful possession of a narcotic with intent to sell), a class B felony, and a violation of Penal Law § 215.40(2), Tampering with Physical Evidence (destroying physical evidence that the individual believes is about to be used in an official proceeding to prevent such production or use), a Class E felony.

Detective Lake testified that 31 glassine envelopes were recovered from under the mattress in the bedroom, and 36 white pills in a clear, Ziploc bag were recovered from the dresser drawer. Also recovered were $1,120 in United States currency, a cell phone, and a piece of mail with Mr. Diaz's address. Detective Lake testified that Mr. Diaz had clothing and belongings in the Apartment, and that Mr. Diaz stated that he lived in the Apartment.

Detective Lake testified that Mr. Diaz entered a plea of guilty to Attempted Criminal Possession of a Controlled Substance in the Third Degree, which is a Class C felony. He was sentenced to ninety (90) days in jail, a six month suspended driver's license, and five (5) years probation. The criminal case against petitioner was still pending at that time.

Based on certain statements petitioner made at the hearing, the Hearing Officer asked counsel for the Authority to see if a referral to the Department of Social Services would be appropriate. The hearing was adjourned until February 22, 2008. Based on an incident that occurred on February 14, 2008 (see infra), the hearing was adjourned until March 26, 2008. Sometime thereafter, the Hearing Officer received notification that a guardian ad litem ("GAL") was being recommended for petitioner. A GAL was appointed, but that individual needed to be replaced, and the hearing date was adjourned again.

By amended notice dated March 18, 2008, the Authority added new charges against petitioner, which related to the execution of a second search warrant on February 14, 2008. Petitioner was charged with unlawfully possessing, selling or attempting to sell heroin, either alone or in concert with Mr. Diaz; the charges further noted that Mr. Diaz is an unauthorized occupant of the Apartment.

The hearing proceeded on June 9, 2008. On that date, petitioner was represented by counsel. Also present was Elliot Widen, who was appointed as her GAL. The Hearing Officer gave counsel and the GAL the option to start the entire proceeding over; they elected to continue, and proceed [*4]with the cross examination of the Authority's witness.

The Authority informed the Hearing Officer that the charges against petitioner had since been amended, and the Authority added a new charge, based on the February 14, 2008 arrest of petitioner and Mr. Diaz. Petitioner's counsel entered a general denial as to all charges. The hearing resumed, with petitioner's counsel waiving cross-examination of Detective Lake.

The Authority's counsel entered into evidence proof of petitioner's plea of guilty to Attempted Criminal Possession of a Controlled Substance in the Third Degree, Penal Law §§ 110.00, 220.16, a class C felony, for which she received a sentence of five years' probation. This plea related to the first arrest on September 2, 2007. The Authority also entered into evidence documentation to reflect that both petitioner's and Mr. Diaz's cases as to the second arrest on February 14, 2008 were still open, and that the next court appearance would be July 15, 2008. The Authority then rested its case.

Petitioner's counsel called petitioner to testify on her own behalf. Petitioner testified that she has lived in the Apartment for the past seven years, but had lived at LaGuardia Houses virtually all of her life. Years ago, she lived with her family at 45 Rutgers, in another unit in the complex, then moved to Queens, and later returned to live in her family's unit, which was the Apartment. Petitioner denied that anyone else lived with her in the Apartment, although she admitted that Mr. Diaz came to visit her. Petitioner denied both using and selling illegal drugs.

Petitioner's counsel then elicited testimony as to petitioner's emotional and psychiatric disabilities. Petitioner testified that she had half-brothers and half-sisters. She testified that her brothers raped her, beginning when she was seven years old. She also testified to two marriages, both of which were physically abusive relationships. She testified to having attempted suicide during her first marriage. Petitioner acknowledged that she has been under psychiatric care for the past thirteen years and that she currently sees a therapist every week.

As to the September 2007 drug charge, petitioner testified that she entered a plea of guilty because her Legal Aid lawyer told her that she would receive the best deal by entering such a plea. She testified that she was in agony, had not been able to take her medication for two days, and that she did not even understand what was happening. She testified that she was not guilty of the charges and she denied being informed that she could lose her Apartment by pleading guilty.

On cross examination, petitioner denied that Mr. Diaz lived in her Apartment. She testified that he was present at 6:00 a.m. on the morning of February 14, 2008 because she had called him the night before to take her to Bellevue Hospital that day. She testified that since Mr. Diaz works nights, he was unable to arrive at the Apartment until after 3:00 a.m. In response to a question as to why his mail was delivered to petitioner's Apartment if he did not in fact reside there, petitioner testified that he had asked her if he could have mail delivered to her Apartment, which she agreed was fine, but she had since told him he had to stop getting his mail delivered to her Apartment. She testified that he gave her Apartment as his address at the time of the arrest because that was the address where he was arrested. She testified on re-direct that Mr. Diaz lived in the Bronx. Petitioner rested, but reserved the right to submit medical records concerning petitioner's medication. [*5]

By letter dated June 25, 2008, petitioner's GAL submitted a letter for the Hearing Officer's consideration. The letter states that as of that date, no releases had been signed to allow the GAL to speak to petitioner's psychiatrists, despite petitioner's efforts to obtain such releases. The letter sets forth the various medications petitioner takes, including Lexapro and Zyprexa for anxiety; Clonazepan for depression; Paroxetine for panic attacks; and, Trazodone for sleep. The GAL further notes that she was without this medication for two days when she entered a plea of guilty as to her first arrest.

In a decision and disposition dated June 26, 2008, the Hearing Officer found that the "overwhelming evidence presented . . . clearly demonstrates that this tenancy is non-desirable and poses a serious risk of danger to other residents and to the community." The Hearing Officer sustained five of the six charges. She noted that it was "disturbing and most illuminating" that Mr. Diaz was present in the Apartment on both occasions when search warrants were executed, less than six months apart. Although petitioner claimed not to have known of the presence of illegal drugs in her Apartment, after the arrest warrant was executed on September 2, 2007, she was well aware of this fact. Yet, Mr. Diaz was again present in the apartment in the early morning hours of February 14, 2008, and drugs were found again. The Hearing Officer found it "perplexing" that petitioner would allow Mr. Diaz back into her Apartment in February 2008 after the September 2007 incident and after she had been charged with having an unauthorized individual in her Apartment. The Hearing Officer further noted that the first warrant was issued based on a drug sale made by a female Hispanic, and that petitioner is the only person listed on the family composition form. Petitioner's guilty plea is evidence of her culpability, despite her protestations to the contrary. Although the Hearing Officer did consider the evidence of petitioner's emotional and mental condition as mitigating factors, the illegal drug activity within petitioner's Apartment "cannot be ignored." For all of these reasons, the Hearing Officer found that the tenancy must be terminated.

In a Determination of Status dated July 9, 2008, the Secretary of NYCHA advised petitioner that it had approved the Hearing Officer's decision and disposition finding the tenant ineligible for continued occupancy, and terminated the tenancy. This proceeding followed.

Petitioner challenges the determination on the ground of ineffective assistance of counsel at the administrative hearing. She states that her attorney failed to present evidence of her psychiatric condition. She also states that her attorney failed to submit a closing statement to the Hearing Officer. Finally, she contends that because the disposition of her second arrest did not occur until after the hearing, there was no evidence presented at her hearing that the District Attorney failed to pursue the charges for the second arrest in February 2008.

As an initial matter, this court must determine whether this matter must be transferred to the Appellate Division. Generally, when a determination is made following a hearing, and a claim of "substantial evidence" is raised, pursuant to C.P.L.R. § 7803(3), the matter must be transferred to the Appellate Division. C.P.L.R. § 7804(g). But, where no issues of fact are raised involving questions of substantial evidence, a transfer is not required. Duboff Elec., Inc. v. Goldin, 95 AD2d 666, 667 (3d Dep't 1983); Mays-Watt v. Hernandez, 196 Misc 2d 56, 58 (Sup. Ct. Bronx Co. 2003). [*6]Moreover, § 7804(g) provides that a proceeding need not be transferred when another objection could terminate the proceeding, "including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue." Since collateral estoppel bars any challenge to petitioner's guilty plea to the charge of Attempted Criminal Possession of a Controlled Substance in the Third Degree, there is no need to transfer this proceeding.

The guilty plea to the September 2007 charge precludes relitigation of the underlying misconduct. People v. Taylor, 65 NY2d 1, 5 (1985). Her plea of guilty, combined with Mr. Diaz's plea of guilty, are sufficient to support the Hearing Officer's determination. Bradford v. New York City Hous. Auth., 34 AD3d 463, 464 (2d Dep't 2006). Since drug-related activity, regardless of whether the tenant knew of the activity, constitutes a sufficient basis to terminate the tenancy of a resident in public housing (Dep't of Hous. v. Rucker, 535 U.S. 125, 130 [2002]), it was not arbitrary and capricious, or an abuse of discretion, for the Authority to terminate petitioner's tenancy. The record reflects that the Hearing Officer gave due consideration to petitioner's psychiatric history. The Hearing Officer concluded that while it was a mitigating factor, petitioner's history did not absolve her of the fact that illegal drugs were found in her Apartment on at least two occasions, and the fact that there was significant proof that Anibal Diaz was occupying the Apartment illegally. The fact that the District Attorney did not pursue petitioner's second arrest is also of no moment.

The petition is denied and this proceeding is dismissed. This constitutes the decision, order and judgment of the court.

Dated: April, 2009

______________________________

JOAN B. LOBIS, J.S.C.