Civil Court of the City of New York, Kings County, February 22, 2021

Belkin Burden Goldman LLP, New York City (David Skaller of counsel), for petitioner.

Jaime Lathrop, Brooklyn, for respondent.

Petitioner 36170 Realty Ltd. (petitioner or landlord) brings this holdover proceeding to evict respondent tenant Michael Boyd (respondent or Boyd) and to recover a rent-controlled apartment (apartment 3A) located at 36 Clark Street, Brooklyn in which Boyd currently resides. Petitioner commenced this action upon the death in 2010 of Boyd's mother, Elizabeth Boyd, who was the tenant of record, contending that Boyd was not entitled to succeed to the statutory rights of his mother since she was merely a licensee.

This case raises novel issues of interpretation regarding the exception to 9 NYCRR 2204.6 (d) (1). Under New York City's rent stabilization and control regulations, a family member who has resided with a rent-controlled tenant for at least two consecutive years prior to the tenant's death may claim succession rights to the tenancy. (9 NYCRR 2204.6 [d] [1]; 90 Elizabeth Apt. LLC v Eng, 58 Misc 3d 300, 301 [Civ Ct, NY County 2017].) However, section 2204.6 (d) contains exceptions to this two year residency requirement. It provides that the minimum period of required residence

"shall not be deemed to be interrupted by any period during which the 'family member' temporarily relocates because he . . .

"(iii) is not in residence at the housing accommodation pursuant to a court order not involving any term or provision of the lease, and not involving any grounds specified in the [RPAPL]" (9 NYCRR 2204.6 [d] [1] [iii]).

At issue is whether the conditions of Boyd's parole and supervised release fall within the [*2]meaning of a "court order" {**73 Misc 3d at 923}and, if so, whether these conditions of parole arose out of any activities which fell within the scope of Real Property Actions and Proceedings Law §§ 711 (5) and 715 (1) which prohibit any part of the premises from being "used or occupied as a bawdy-house, or house or place of assignation for lewd persons, or for purposes of prostitution, or for any illegal trade or manufacture, or other illegal business."

Respondent asserts that he is entitled to succession rights because he resided with his mother until his incarceration in May 2002, and that after his release from prison and parole, he resumed his residency with his mother in 2009. He therefore falls within the exception to the two year residency requirement governing succession rights, as contained in 9 NYCRR 2204.6 (d), because the conditions of his parole, requiring him to stay away from his mother's apartment for part of the two year period immediately before his mother's death, were part and parcel of the underlying court order and criminal conviction. Petitioner counters that conditions of parole are not equivalent to a court order since Boyd's agreement to stay away from his mother's apartment was "voluntary" and had nothing to do with his criminal conviction. It further argues that regardless of the legal meaning of the conditions of parole, as a matter of law Boyd could not succeed to the tenancy since he engaged in "illegal trade or manufacture, or other illegal business" as prohibited by sections 711 and 715 of the RPAPL. Respondent counters that Boyd's criminal conviction of a sex act involving a minor, and burglary, did not fall within the intent of RPAPL 711 (5), which is commonly referred to as the "bawdy house, illegal use or drug house" statute.

As will be detailed below, this court reaffirms its previous ruling that the conditions of parole are part and parcel of a court order, and that in order to be on parole Boyd had to accept the conditions offered by the Parole Board. Therefore, Boyd's absence from the apartment was a mandatory condition of parole and fell within the exception to the residency requirement provided by 9 NYCRR 2204.6 (d) (1) (iii). However, respondent cannot reap the benefit of this exception without having the court also probe into the incidents leading to the parole order which mandated that Boyd could not reside in his mother's residence. Since the parole conditions flowed ineluctably from the sentence, which contained an order of protection for eight years, this court concluded that the parties could present evidence of the underlying conduct which led to the sentence and order of parole.{**73 Misc 3d at 924}

The court also finds that Boyd used both his mother's apartment and the entire premises, including the roof of the building, to manufacture a technological apparatus which enabled him to constantly tape a minor engaging in sexual conduct for about a year and view her in "live time" on his camcorder in or about his mother's apartment. He also used the apartment to create multiple tapes of the minor. He therefore used his apartment to engage in illegal manufacturing or business for more than "an isolated use" and his activities fell within the prohibitions listed under RPAPL 711 and 715 so as to defeat any claim to succession rights. Furthermore, Boyd's actions constituted a modern-day version of using the premises for lewd and immoral conduct which also defeated any claim to succession rights.

History of Criminal Action

By a lengthy decision and order dated November 21, 2001, Justice Patricia DiMango ruled on Boyd's motion to suppress evidence. Justice DiMango first set forth that Boyd was charged with burglary in the second degree (Penal Law § 140.25 [2]) on two separate dates and five counts of possessing a sexual performance by a child in violation of Penal Law § 263.16. [*3]Justice DiMango first recited the testimony of the two apprehending police officers who decided to search Boyd's knapsack after observing him engage in strange behavior. The officers removed a "Sony Digital Handycam" camera with a fold out LCD screen which depicted six pictures of a female lying naked in bed. The camera also contained a videocassette tape of a female masturbating. The police officer handcuffed and frisked Boyd and brought him to the precinct without telling him if he was under arrest.

While in custody, Boyd admitted that he had additional videotapes of the girl at the apartment. The detective and officers went to the apartment and Boyd gave the officers a plastic bag filled with videotapes, covering a period of almost one year, which depicted a naked girl lying in bed and masturbating. Boyd also had "a VCR with a television set and a computer monitor with a CPU tower, which appeared to contain a porthole for eight-millimeter tapes." Subsequently, one of the officers returned to the premises with a search warrant. Upon executing the warrant, he recovered the CPU unit, CD-ROM disks, floppy disks, pornographic magazines, and what appeared{**73 Misc 3d at 925} to be VHS tapes and other tapes. Soon thereafter, a detective discovered the identity of the female on the videotapes, and proceeded to the minor female's apartment where the door was answered by her father. After being shown the images from the camera, the father identified the images on the tape as being of his daughter (14 years of age) and the room in the picture as her bedroom. He recounted to the police that several weeks earlier his daughter had complained that she thought she had seen a camera outside her window which was on the top floor of the building.

Boyd sought to suppress all of the physical evidence obtained from the time of the street encounter through and including the return of the search warrant, and also sought to suppress statements he made to the police at the station house because he was not informed of his Miranda warnings. He claimed that all of the evidence was improperly obtained pursuant to illegal searches and seizures and should be suppressed as fruit of the poisonous tree after the police acted improperly when they initially approached him as he sat on a stoop in Brooklyn.

Justice DiMango first found^[FN1] that Boyd's initial reactions upon countering the police on the stoop gave rise to a "founded suspicion that criminal activity was afoot" and elevated the encounter to the "common law right to enter." The search of the plastic bag was necessary as the police could not rule out the presence of a gun, although the officer thereupon discovered that the "gun" was in fact a video camera simultaneous with his seeing the six pinhole pictures. The images thus came into "plain view" through no police misconduct and the police officer properly investigated the identity and whereabouts of the female and properly seized the camera. Since the police came into possession of the camera in a lawful manner, the court denied suppression of the camera or any of its contents.

Justice DiMango also found that the police officer's discussion with Boyd at the precinct to find out the name and location of the teenage female was proper under the "public safety" exception to the Miranda rule, given the officer's concern for the welfare of the teenager. The detective did not attempt to elicit evidence of a crime but attempted to ascertain the minor's status. However, after returning from his visit to the house where the minor resided, the [*4]detective's further questioning of{**73 Misc 3d at 926} Boyd constituted "custodial interrogation" as his purpose was to elicit information about the crime. Although Boyd refused to listen to the Miranda warning, the court found that there was no reason why the police did not continue to apprise Boyd of his rights before continuing their interrogation. As such, Justice DiMango found that any interrogation which took place at this point was unconstitutional and all the evidence which flowed from such interrogation had to be suppressed as "fruits of the illegal interrogation." This included Boyd's statements and the tapes that the police recovered from Boyd's apartment as well as all the evidence recovered pursuant to the execution of the search warrant.

As will be set forth below, the scope of the evidence recovered from Boyd's apartment, much of which was suppressed in Justice DiMango's decision, is quite relevant to a determination as to whether Boyd engaged in "illegal trade or manufacture, or other illegal business" as prohibited by sections 711 (5) and 715 (1) of the RPAPL.

The certificate of disposition indictment, dated June 4, 2010, indicates that on April 10, 2002, Boyd was convicted, after a bench trial before the Honorable Neil J. Firetog, of the crime of possessing a sexual performance by a child in violation of Penal Law § 263.16 (an E felony) relating to 17 tapes found in his apartment which depicted a naked 14-year-old neighbor lying in her bed masturbating. Judge Firetog also convicted Boyd of burglary in the second degree in violation of Penal Law § 140.25 (a C felony) for breaking into the victim's apartment on two dates and installing a video camera in the air conditioner in the victim's bedroom. On May 29, 2002, Judge Firetog sentenced Boyd to imprisonment of 1 to 3 years, and issued an order of protection of eight years for the crime of possessing a sexual performance by a child. Judge Firetog also ordered imprisonment of five years for the crime of burglary in the third degree and stated that there would be postrelease parole supervision for three years.

On or about September 5, 2006, Boyd was granted parole. Boyd's release from prison was conditioned upon his acceptance of 26 conditions, violation of which would result in his reimprisonment. One of the conditions prohibited Boyd from visiting his mother's apartment because of its proximity to the minor victim's apartment. This was the only reason that Boyd did not return to live in the apartment immediately after his release from prison. On or about September 5, 2009, upon{**73 Misc 3d at 927} completion of his parole term, Boyd began living in the apartment with his mother again. Boyd's mother died on December 27, 2010, at which point Boyd had lived in the apartment for about one year and four months.

Petitioner brought a holdover petition against Boyd in Civil Court, Housing Part seeking to recover possession of the subject apartment, and thereafter moved for summary judgment on the grounds that Boyd did not reside at the subject premises as his primary residence for the two years immediately preceding the death of his mother. Respondent asserted the same defenses raised herein—that Boyd fell within the exception to the two year period pursuant to 9 NYCRR 2204.6 (d). By order dated September 10, 2012, Judge John S. Lansden denied the motion for summary judgment, finding that there was a dispute as to whether the parole officer actually "ordered" Boyd to stay away from the residence. He also found that a question of law existed as to whether the parole officer's orders were analogous to incarceration, and whether these instructions or orders "curtailed the free will of the parolee." The court also noted that irrespective of the exceptions listed in the statute, the courts have analogized certain situations such as incarceration or placement in a psychiatric institution to meet the requirements of court [*5]order. Based upon this decision, petitioner requested a jury trial^[FN2] and the case was transferred to Civil Court. Four years were consumed by motion practice over a myriad of issues too voluminous to reiterate herein.

This court first ruled that once a landlord has shown that the tenant of record has died in a holdover proceeding involving a rent-controlled tenant, the burden then shifted to the party claiming succession rights (here Boyd) to present legally sufficient proof to "establish contemporaneous residency with the tenant." (Pavel v Fischer, 21 Misc 3d 143[A], 2008 NY Slip Op 52452[U], *3 [App Term, 2d Dept, 2d & 11th Jud Dists 2008], citing Gottlieb v Licursi, 191 AD2d 256 [1st Dept 1993].) Petitioner clearly proved that Mrs. Boyd died and that Boyd did not reside in the premises for the two years immediately preceding her death. "Thus, Boyd bears the burden of establishing {**73 Misc 3d at 928}his residency and showing that his absence from the apartment was pursuant to a court order not involving any term or provision of the lease, and not involving any grounds specified in the RPAPL." The court also ruled that a landlord could bring a proceeding to evict under the RPAPL for illegal conduct at any time.

Throughout the duration of the trial, petitioner persisted in arguing that the "court order" exception does not apply to Boyd's absence because the terms of Boyd's parole and supervised release were a "voluntary" absence pursuant to an administrative determination by the Department of Parole and, thus, not a court order. Petitioner further asserted that a court order can only be written by a judge whereas the special conditions of Boyd's parole were promulgated by the Parole Board, an administrative agency outside the control of any court and collateral to any court order. To that end, Boyd's parole conditions did not amount to a court order because the collateral consequences of a criminal sentence, which include conditions of parole, are not a court order (citing People v Stevens, 91 NY2d 270 [1998] [postrelease and registration requirements for sex offenders are distinct from criminal sentence]).

Boyd claimed that he is entitled to succession rights because the terms of his parole and postrelease supervision were part of a court order which is a "direct consequence" of his criminal conviction, which has a "definite, immediate and largely automatic effect on defendant's punishment," as opposed to a "collateral consequence" which is peculiar to the individual and generally results from actions taken by agencies the court does not control. Citing to People v Catu (4 NY3d 242 [2005]) and People v Ford (86 NY2d 397, 403 [1995]), Boyd argued that the Court of Appeals considered a parolee a warden of the State because "parole neither extends nor shortens a criminal conviction." The condition that Boyd stay away from his mother's apartment was mandatory because under the parole agreement, if he violated this condition he would be returned to the legal custody of the warden in prison.

Parole proceedings are considered to be a phase of the criminal proceeding. (Pennsylvania Bd. of Probation & Parole v Scott, 524 US 357, 365 [1998]; United States v Medrano, 2012 WL 3055758, 2012 US Dist LEXIS 104700 [SD NY, July 20, 2012, No. 08 Cr 60(WHP)].) "Parole is an 'established variation on imprisonment of convicted criminals,' Morrissey v. Brewer,{**73 Misc 3d at 929} 408 U.S. 471, 477 (1972), which is part of a ' "continuum" of state-imposed punishments.' " (Robinson v New York, 2010 WL 11507493, *3, 2010 US Dist LEXIS 144553, *9-10 [ND NY, Mar. 26, 2010, 1:09-cv-0455 (GLS/RFT)], citing Samson v California, 547 US 843, 850 [2006].) "The essence of parole is release from prison, before the [*6]completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence" (Morrissey, 408 US at 477). The State "accords a limited degree of freedom in return for the parolee's assurance that he will comply with the often strict terms and conditions of his release." (Scott, 524 US at 365.) "The enforcement leverage that supports the parole conditions derives from the authority to return the parolee to prison to serve out the balance of his sentence if he fails to abide by the rules." (Morrissey at 478-479; Robinson v New York, 2010 WL 11507493, *3, 2010 US Dist LEXIS 144553, *11; see also People ex rel. Petite v Follette, 24 NY2d 60, 62-63 [1969] ["(T)he Parole Board may ameliorate the conditions of his sentence by allowing him to serve the remainder of it outside the walls of the prison on parole. While a prisoner is on parole, his sentence continues to run until its maximum term has expired. However, if a prisoner commits some violation of the conditions of his parole, . . . the running of his sentence is halted until his return to prison where he may be required to serve the maximum amount of his sentence remaining" (citation omitted)].)

The general statutory scheme which inextricably intertwines the Department of Corrections and Community Supervision with the Division of Parole was succinctly described in Matter of Oriole v Saunders (66 AD3d 280 [1st Dept 2009]). Pursuant to Penal Law § 70.40 (1), (3) (a), a convicted person released from incarceration on parole continues to serve his or her sentence while on parole and earns credit toward the maximum expiration date of the sentence unless and until the Division of Parole declares that person to be delinquent and revokes parole. (66 AD3d at 281.) If parole is not revoked, a parolee is deemed to be in the legal custody of the Division of Parole "until expiration of the maximum term or period of sentence" (Executive Law § 259-i [2] [b]). However, once a parolee is declared delinquent, the sentence is interrupted as of the date of delinquency, and the interruption continues until the parolee's return to an institution under the jurisdiction of the Department of Corrections and Community Supervision (Penal Law § 70.40 [3] [a]). As a result, the term of the interrupted{**73 Misc 3d at 930} sentence is extended, beyond the original maximum expiration date, for a period of time equal to the delinquency period. (66 AD3d at 281; see Matter of Tineo v New York State Div. of Parole, 14 AD3d 949, 950 [3d Dept 2005] [Court found that the petitioner was not entitled to a parole revocation hearing because his parole was revoked by operation of law upon his conviction of a crime while on parole. Pursuant to Penal Law § 70.40 (3), the original sentence was interrupted by the delinquency and the interruption continued until the petitioner was returned to Department of Corrections and Community Supervision custody whereupon he owed the time remaining on his prior sentence]; see also Matter of Washington v Dennison, 42 AD3d 830 [3d Dept 2007]; People ex rel. Melendez v Bennett, 291 AD2d 590, 590-591 [2002]; Matter of Cruz v New York State Dept. of Correctional Servs., 288 AD2d 572, 573 [2001].)

"There is no federal or state constitutional right to be released to parole supervision before serving a full sentence, and, accordingly, the state has discretion to place restrictions on parole release." (People ex rel. Stevenson v Warden of Rikers Is., 24 AD3d 122, 123 [1st Dept 2005], citing Matter of M.G. v Travis, 236 AD2d 163, 167 [1st Dept 1997].) Parole release remains a statutory grant of "a restricted form of liberty" prior to the expiration of a sentence. (People ex rel. Johnson v Superintendent, Adirondack Corr. Facility, 174 AD3d 992, 994 [3d Dept 2019], citing People ex rel. Matthews v New York State Div. of Parole, 58 NY2d 196, 204 [1983].) The State Division of Parole may therefore impose restrictions or conditions before or after an inmate's release from prison (see Executive Law § 259-c [2]; 9 NYCRR 8003.3), including reasonable residential restrictions as a condition precedent to release. (See Matter of Boss v New York State Div. of Parole, 89 AD3d 1265, 1266 [3d Dept 2011] [special condition that petitioner secure approved residence prior to his release from prison given his conviction for sex offenses perpetrated against two young girls].) In fact, the Board may impose special conditions "which must be satisfied prior to an inmate's release from prison." (Matter of Breeden v Donnelli, 26 AD3d 660, 660-661 [3d Dept 2006] [condition that the prisoner procure an approved residence prior to his release where he has a history of criminal behavior, including multiple serious sex offenses]; Matter of Lynch v West, 24 AD3d 1050, 1051 [2005].)

Simply put, any inmate facing parole, including Boyd, simply has no "bargaining power" with the Parole Board as to the {**73 Misc 3d at 931}conditions of his release and has a very limited right of appeal. The case cited by petitioner—People v Stevens (91 NY2d 270 [1998])—is inapposite and does not hold that the conditions of parole are "a collateral consequence" of a criminal sentence. At issue in Stevens was whether a convicted sex offender had a discrete right to appeal a "risk level determination"—which is a post-service of sentence classification—under CPL 460.20. (91 NY2d at 272-273.) A risk level determination is a post-service of sentence classification under the Sex Offender Registration Act (Megan's Law). The Court found that the post-sentence registration and notification requirements under the act are not a "traditional, technical or integral part of a sentence that somehow relates back to or becomes incorporated into the antecedent judgment of conviction." (91 NY2d at 276; see also People v Hernandez, 93 NY2d 261, 270 [1999] [Stevens deemed a risk level determination to be "post-sentence" since the determinations were assigned to them after release from prison].) Here, on the other hand, Boyd's sentence was not fully served at the time he was on parole. Rather, Boyd's parole extended to the final date of his sentence, albeit outside of the prison, and any violation of parole would have caused Boyd to revert back to the status of prisoner where he would have to serve the remainder of his sentence incarcerated.

The testimony of Boyd's Parole Officer—Glenda Bubb—confirmed the mandatory nature of this condition. Bubb was a Parole Officer supervising sex offender cases from 2006-2009 and supervised Boyd from September 2007 until he reached his maximum expiration date or release date of September 2009. Boyd's release sheet from the Mohawk Correctional Facility had a total of 26 conditions, 14 of which were specific to Boyd based upon his conviction and "the requirements for a successful parole supervision in the community." Bubb did not present these conditions to him; this happened while he was in jail.

The first page, entitled "Application for Conditional Release to Parole Supervision," states that Boyd was sentenced by Judge Firetog on May 29, 2002, for a maximum term which expired on May 25, 2007, that he would be in the legal custody of the Division of Parole for three years until September 5, 2009, and that he would abide with the conditions of his release "with the full knowledge that failure to do so may result in imprisonment" by the Division of Parole. Some of the special conditions included participation in sex offender treatment/{**73 Misc 3d at 932}counseling; no association or communicating in any ways with the victim and her family without permission of the parole officer; and compliance with all orders of protection. The special conditions of release to parole supervision included additional prohibitions such as not entering a place within 50 feet of places where children congregate, not picking up children at any time, not frequenting areas of pornographic activity, and not participating in any online computer service that involved the exchange of pornographic emails or established sexual encounters or liaisons. Boyd also agreed not to purchase or possess pornographic or video equipment without permission of his parole officer, and not to purchase or engage in the use of pornographic or erotic materials. Bubb testified that he was not allowed contact with children [*7]under 18 because his victim was a minor. The prohibition against Boyd participating in online computer services was a special condition generated for sex offenders whose crimes involve using a computer.

During his period of supervision Boyd lived at the Kingsboro Men's Shelter. Bubb stated that this was not by choice but "by parole's direction." When Boyd was released from supervision, he had no other address except where his crime was committed. "We would not allow him to live there. That's standard rule that we have . . . for any parolee that they can't live where they committed the crime . . . regardless of the crime." Boyd visited, but was not allowed to live with his mother because of special conditions that would not allow him to live within 1,000 feet of a school and the mother's house fell within that zone. Bubb also informed Boyd that he could not visit his mother's residence without her knowledge or permission. After he retained an attorney, visitation was arranged with his mother at a specified time and date, which was specifically chosen to avoid him running into minors. Bubb performed a curfew check on Boyd and Boyd never violated his curfew. Bubb said that if she went to the shelter and he was not there she would have sent him back to jail immediately. If Boyd had violated his parole, he would go back to a correctional facility for a minimum of 12 months. Boyd completed parole without any interruption or violation of his supervision.

[1] In sum, this court reiterates its previous ruling that the conditions of parole were part and parcel of the court order, and that had Boyd stayed in jail for the full duration of his sentence, as opposed to spending part of it on parole, he would have been entitled to the exception to the two year residency{**73 Misc 3d at 933} requirement. The statutory framework makes it crystal clear that the condition imposed by the Parole Board that Boyd stay away from his mother's apartment was inextricably linked to his court sentence, and that his release was predicated upon his agreeing to this condition, a violation of which would have landed Boyd back in prison for the duration of his sentence.

The remainder of the trial concerned whether Boyd could prove that he fell within the exception to the two year residency requirement, contained in 9 NYCRR 2204.6 (d) (1) (iii), because the court order (and subsequent terms of parole) did not involve any grounds specified in the RPAPL. Both sides agree that the pertinent sections of the RPAPL are sections 711 (5) and 715. RPAPL 711 (5) (the Bawdy House Law) permits a landlord to institute a special proceeding to evict a tenant if the premises or any part thereof were "used or occupied as a bawdy-house, or house or place of assignation for lewd persons, or for purposes of prostitution, or for any illegal trade or manufacture, or other illegal business."^[FN3]

These statutory provisions were "intended to protect the health, welfare and safety of the public residing in the same community as well as the tenants who reside in the same building." ([*8]City of New York v Wright, 162 Misc 2d 572, 573-574 [App Term, 1st Dept 1994].) The purpose of the illegal use evictions under these two statutes is not to provide an additional penalty for criminal behavior but to further the public policy to "protect the inhabitants of communities from prostitution, gambling and drug dealing." (54 W. 16th St. Apt. Corp. v Dawson, 179 Misc 2d 264, 268 [Civ Ct, NY County 1998] [emphasis omitted]; see RRW Realty Corp. v Flores, 179 Misc 2d 757, 760 [Civ Ct, Bronx County 1999].)

In order to prevail under RPAPL 711 (5) and 715, petitioner must show that the premises it seeks to recover have been used not just once or twice but "customarily or habitually" for {**73 Misc 3d at 934}an illegal trade or business like the sale of illegal drugs. (Grosfeld Realty Co. v Lagares, 150 Misc 2d 22, 23 [App Term, 1st Dept 1989]; Clifton Ct., Inc. v Williams, NYLJ, May 27, 1998 at 28, col 6 [App Term, 2d Dept, 2d & 11th Jud Dists 1998].) The illegal use "implies doing of something customarily or habitually upon the premises." (855-79 LLC v Salas, 40 AD3d 553, 555-556 [1st Dept 2007] [testimony of neighbor that son and grandson of tenant sold drugs outside the building late at night was insufficient to establish customary or habitual activity or to infer that the tenant acquiesced in illegal drug activity]; see also Matter of 88-09 Realty v Hill, 305 AD2d 409 [2d Dept 2003] [landlord established tenants' apartment was used for drug dealing where activities persisted over period of time and were subject to neighbors' complaints]; New York City Hous. Auth. v Grillasca, 18 Misc 3d 524, 527 [Civ Ct, NY County 2007]; Cool NYC Apts. LLC v Witter, 61 Misc 3d 133[A], 2018 NY Slip Op 51485[U] [App Term, 1st Dept 2018] [eviction warranted for illegal drug activities where police recovered, pursuant to a search warrant, 37 ziplock bags of marijuana, a digital scale and $7,230 in cash].)

Contrary to respondent's argument, there is no requirement under these provisions that a petitioner serve a predicate notice to cure prior to commencement of a proceeding. (Spira v Douglas, 67 Misc 3d 258, 262 [Civ Ct, Bronx County 2020]; see Mullman v Hogan, 121 Misc 2d 719 [Civ Ct, NY County 1983]; cf. Federal Natl. Mtge. Assn. v Tenenbaum, 63 Misc 3d 313, 324 [Nassau Dist Ct 2019]; see also Hunts Point Hous. Dev. Fund Corp. v Padilla, 67 Misc 3d 1233[A], 2020 NY Slip Op 50708[U] [Civ Ct, Bronx County 2020]; Andrew Scherer et al., Residential Landlord-Tenant Law in New York § 8:109 [Nov. 2020 update].) RPAPL 711 (5) and 715 are the procedural vehicles for implementing Real Property Law § 231 which is "a substantive statute that defines the legal consequence of an illegal use on a tenancy." (Hudsonview Co., 169 Misc 2d at 390; see Murphy v Relaxation Plus Commodore, 83 Misc 2d 838, 839 [App Term, 1st Dept 1975].)

Section 231 (1) provides that whenever the leasee or tenant uses the premises or building, "or any part thereof, for any illegal trade, manufacture or other business, the lease . . . shall . . . become void" and the landlord may enter the building. (169 Misc 2d at 391.) "The statutory use of 'void' . . . means that, as a matter of substantive law, the illegal activity itself terminates the tenancy." (Id.) The Bawdy House Law therefore {**73 Misc 3d at 935}is premised on a different legal theory than the usual holdover proceeding; it is based upon a violation of law, not a holding over after expiration of the lease (Murphy v Relaxation Plus Commodore, 83 Misc 2d 838, 839 [App Term, 1st Dept 1975]). It is therefore not necessary for the landlord to serve a predicate termination notice "as a condition precedent to bringing on an illegal use eviction proceeding." (Hudsonview Co. v Jenkins, 169 Misc 2d 389, 392 [Civ Ct, NY County 1996] [emphasis added]; Murphy at 839; see Samayoa LLC v Nelson, 56 Misc 3d 1201[A], 2017 NY Slip Op 50797[U] [Civ Ct, Bronx County 2017]; see also Aurora Assoc. LLC v Hennen, 157 AD3d 608 [1st Dept 2018] [Since the alleged conduct of profiteering is incurable, no notice to cure is required].)

Nor must a landlord prove the commission of the specific illegal acts. Rather he must [*9]show that the acts and conduct proved "warrant an inference" that the premises were being used for any illegal trade or manufacture or other illegal business. (54 W. 16th St. Apt. Corp. v Dawson, 179 Misc 2d 264, 269 [Civ Ct, NY County 1998]; New York City Hous. Auth. v Manley, NYLJ, Jan. 8, 1997 at 1, col 3 [Civ Ct, NY County 1996]; New York County District Attorney's Off. v Rodriguez, 141 Misc 2d 1050, 1055 [Civ Ct, NY County 1988].)

[2] Throughout the course of this case, the court stated that Boyd's development of an elaborate mechanism to view the girl through live streaming, and his creation of many tapes fell within the colloquial definition of "manufacturing," and that Boyd clearly engaged in illegal activity. The court noted that the certificate of disposition indictment, dated June 4, 2010, indicates Boyd's conviction of the crime of possessing a sexual performance by a child in violation of Penal Law § 263.16 (an E felony) related to 17 tapes being found in his apartment which depicted a naked 14-year-old neighbor lying in her bed masturbating. Petitioner argued that the prohibition in federal and state law against child pornography is so strong that even mere possession of tapes for personal use was a crime. It argued that Boyd's manufacturing of and viewing child pornography fell within the term "other illegal business" and thus within the purview of the Bawdy House statute. Respondent countered that there was no evidence that the tenant of record (Elizabeth Boyd) had any knowledge regarding the allegations of illegal activity in the subject premises. Respondent further contended that petitioner did not provide evidence that Boyd engaged in a business or that there was any ongoing{**73 Misc 3d at 936} nexus of illegal activity with the apartment. Rather, Boyd's viewing of the tapes and/or recordings were akin to a tenant smoking marijuana in the apartment which has been held to be beyond the purview of the RPAPL. Respondent also argued that Boyd's activities outside of the apartment cannot be considered under RPAPL 711 (5).

The court disagrees that the case should be dismissed because petitioner failed to prove that Boyd's mother had any knowledge of his activities is inapplicable. The aforementioned requirement is a protection that covers the tenant of record who has no knowledge of and does not participate in the illicit activity yet faces eviction from the leasehold due to illegal activities of others. This protection obviously has no bearing herein since petitioner is not seeking to evict Mrs. Boyd, who passed in 2010, but rather her son who in essence is claiming that he is the tenant of record, and has been residing in the premises because of 9 NYCRR 2204.6 (d) (1). (See 855-79 LLC v Salas, 40 AD3d 553 [1st Dept 2007].) In fact, the notice of petition and petition do not name Elizabeth Boyd but rather Michael Boyd as respondent tenant.^[FN4]

The court also finds that Boyd utilized both the subject apartment and the area around the premises, including the roof and stairwells, to accomplish his scheme of transmitting live time images of the teenager to his video camera and then viewing her in both his apartment and outside of the premises. It is not necessary to show that the actual apartment was used for the illegal activity as long as there is a "sufficient nexus" between the use of the apartment and the illegal activity. (RRW Realty Corp. v Flores, 179 Misc 2d 757, 761 [Civ Ct, Bronx County 1999].) The landlord petitioner must demonstrate that the premises were used to further an illegal business. (New York City Hous. Auth. v Lipscomb-Arroyo, 19 Misc 3d 1140[A], 2008 NY Slip Op 51085[U] [Civ Ct, Kings County 2008]; City of New York v Omolukum, 177 Misc 2d 796, 801-802 [Civ Ct, NY County 1998].)

RPAPL 711 (5) applies where "[t]he premises, or any part thereof, are used or occupied . . . for any illegal trade." (Flores, 179 Misc 2d at 761.) The use of the premises is specifically proscribed separate and apart from occupancy, and the term{**73 Misc 3d at 937} premises "has a considerably broader scope than apartment" and reveals a legislative intent to hold the occupants responsible for illegal activities outside the apartment itself. (Id.; City of New York v Rodriguez, 140 Misc 2d 467, 469 [Civ Ct, NY County 1988].) In City of New York v Rodriguez, the court found that the appropriate meaning of "premises" should be ascertained from the warranty of habitability owed to tenants which extends from the occupancy of an apartment to the "public hallways of the building, the elevators, the roof, the lobby, the main entrance to the building, and adjacent recreational and parking areas." (140 Misc 2d at 469.) In fact, the dictionary defines premises as "a building or part of a building usually with its appurtenances (such as grounds)." (Merriam-Webster Online Dictionary, premises [https://www.merriam-webster.com/dictionary/premises].) Therefore, the court found that the individual's illegal drug trade in "front of the building" was a sufficient nexus to his use of the apartment to justify eviction under RPAPL 711 and 715. (140 Misc 2d at 469.)

[3] The court then noted that the crux of its decision on the second issue—whether Boyd's conduct fell within the ambit of the Bawdy House statute—depended on how much material that was suppressed in the criminal trial would be allowed into evidence to show that Boyd engaged in illegal manufacturing, trade or other illegal business. After exhaustive argument, the court ruled that neither the exclusionary rule nor its ancillary prohibition against the admission of the fruit of the poisonous tree precluded the admission into evidence of almost all of the items listed in petitioner's notice to admit.

The Supreme Court has repeatedly emphasized that the State's use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution. (See Pennsylvania Bd. of Probation & Parole v Scott, 524 US 357, 362 [1998].) Formulated as a "pragmatic response" to police procedures violative of individual liberties, the exclusionary rule is a "judicially created remedy" designed to deter illegal searches and seizures "rather than a personal constitutional right of the party aggrieved." (Townes v City of New York, 176 F3d 138, 145 [2d Cir 1999], citing United States v Calandra, 414 US 338, 348 [1974]; People v McGrath, 46 NY2d 12 [1978].) The "paramount, if not sole, justification for applying the exclusionary rule is its deterrent effect on unlawful police{**73 Misc 3d at 938} behavior." (United States v Janis, 428 US 433, 446 [1976]; United States v Calandra, 414 US at 347; People v McGrath, 46 NY2d 12 [1978].) As such, the rule does not "proscribe the introduction of illegally seized evidence in all proceedings or against all persons." (Stone v Powell, 428 US 465, 486 [1976].) Since the exclusionary rule "is prudential rather than constitutionally mandated," it is "applicable only where its deterrence benefits outweigh its 'substantial social costs.' " (See Pennsylvania Bd. of Probation, 524 US at 363, quoting United States v Leon, 468 US 897, 907 [1984].)

The fruit of the poisonous tree doctrine is an evidentiary rule that operates in the context of criminal procedure. (Townes v City of New York, 176 F3d at 145; see Wong Sun v United States, 371 US 471, 484-488 [1963].) This doctrine excludes evidence obtained as a result of information obtained through an unlawful search or as a consequence of lawless official acts. (Costello v United States, 365 US 265, 280 [1961]; Lee [*10]v City of New York, 2011 NY Slip Op 31479[U] [Sup Ct, NY County 2011].) "The doctrine is an extension of the long-recognized exclusionary rule." (Townes, 176 F3d at 145; see Segura v United States, 468 US 796, 804 [1984].) Like the exclusionary rule, the fruit of the poisonous tree doctrine "is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." (Calandra, 414 US at 348; see United States v Janis, 428 US at 446-447.)

These doctrines were calculated "to deter future unlawful police conduct" and protect liberty by creating an incentive—avoidance of the suppression of illegally seized evidence—for state actors to respect the constitutional rights of suspects. (Townes v City of New York, 176 F3d at 145, citing Calandra, 414 US at 347; United States v Peltier, 422 US 531, 536-539 [1975].) As such, the rule does not "proscribe the introduction of illegally seized evidence in all proceedings or against all persons" (Stone v Powell at 486), but applies only in contexts "where its remedial objectives are thought most efficaciously served." (United States v Calandra at 348; United States v Janis, 428 US at 454; see People v McGrath, 46 NY2d at 21 [the Supreme Court applies a balancing approach and has refused to apply the rule "in those areas where the ultimate effectuation of its remedial objectives is only tenuously demonstrable"].)

Recognizing these costs, the Supreme Court has repeatedly declined to extend the exclusionary rule to non-criminal{**73 Misc 3d at 939} proceedings. (See Pennsylvania Bd. of Probation, 524 US at 363 [inapplicable to parole board proceedings]; INS v Lopez-Mendoza, 468 US 1032 [1984] [Court refused to extend the exclusionary rule to civil deportation proceedings]; United States v Calandra [inapplicable to grand jury proceedings]; see also United States v Jones, 2018 US Dist LEXIS 162830 [SD NY, Sept. 21, 2018, No. 11-cr-933-2 (RJS)].) In United States v Janis (428 US at 448), the Court held that the exclusionary rule did not bar the introduction of unconstitutionally obtained evidence in a civil tax proceeding because the costs of excluding relevant and reliable evidence outweighed the marginal deterrence benefits, "which . . . would be minimal because the use of the exclusionary rule in criminal trials already deterred illegal searches." Similarly in Pennsylvania Bd. of Probation & Parole v Scott the Supreme Court found that application of the exclusionary rule would hinder the functioning of state parole systems and would provide only minimal deterrence. "Because the exclusionary rule precludes consideration of reliable, probative evidence, it imposes significant costs: it undeniably detracts from the truth finding process and allows many who would otherwise be incarcerated to escape the consequences of their actions." (524 US at 363.)

Similarly, the exclusionary rule does not prohibit the introduction of the "fruit of the poisonous tree" obtained through an unlawful search in a civil trial. (Lee v City of New York, 2011 NY Slip Op 31479[U], *8 [Sup Ct, NY County 2011]; see Townes, 176 F3d at 145 [the court found that the fruit of the poisonous tree doctrine was inapplicable to 42 USC § 1983 actions which are assessed on ordinary principles of tort causation and entail little or nominal damages].) The rule should not be used to elongate the chain of causation, and "[v]ictims of unreasonable searches or seizures" cannot press section 1983 claims for "injuries that result from the discovery of incriminating evidence and consequent criminal prosecution." (Vassiliou v City of New York, 2021 WL 76916, *7, 2021 US Dist LEXIS 3433, *22 [ED NY, Jan. 7, 2021, 18-CV-0779(EK)(VMS)], citing Townes, 176 F3d at 148.) Admission of the fruit of the poisonous tree in civil actions is consonant with the purpose underlying the exclusionary rule, namely to protect liberty and deter future unlawful [*11]searches and seizures, as exclusion of this evidence "would vastly overdeter state actors . . . and would distort basic tort concepts of proximate causation." (Lee, 2011 NY Slip Op 31479[U], *8, citing Townes, 176 F3d at 145.)

{**73 Misc 3d at 940}Likewise, the police's failure to continue to apprise Boyd of his Miranda rights, after he refused to listen to the Miranda warning, has no bearing in the instant matter. It is well established that a person taken into "custodial interrogation" must first receive proper warnings pursuant to the Fifth Amendment's privilege against self-incrimination to admit the statements into evidence in a criminal trial. (Miranda v Arizona, 384 US 436, 444 [1966].) Miranda warnings are a procedural safeguard rather than an explicit right granted in the Fifth Amendment. (Neighbour v Covert, 68 F3d 1508, 1510 [2d Cir 1995], citing Miranda, 384 US at 467.) Where plaintiffs are not attempting to suppress their statements in a criminal proceeding, they cannot assert a cause of action for damages based on Miranda in a civil rights action. (Piercy v Federal Reserve Bank of N.Y., 2004 WL 1871310, *11, 2004 US Dist LEXIS 16581, *30-31 [SD NY, Aug. 19, 2004, No. 02 Civ 5005(DC), 02 Civ 9291(DC)]; see Aderonmu v Heavey, 2001 WL 77099, *3, 2001 US Dist LEXIS 640, *9 [SD NY, Jan. 26, 2001, No. 00 CIV 9232(AGS)]; see also United States v Solano-Godines, 120 F3d 957 [9th Cir 1997]; United States v Kadem, 317 F Supp 2d 239 [WD NY 2004]; Cyrus v City of New York, 450 Fed Appx 24, 25 [2d Cir 2011] [Miranda warnings need not be given in deportation proceedings which are not criminal but civil in nature].)

Statements or evidence obtained by law enforcement based upon alleged violations of a tenant's Fourth and Fifth Amendment rights have not been excluded from proceedings brought pursuant to RPAPL 711 (5) and 715. In the leading case of Pleasant E. Assoc. v Soto (NYLJ, Oct. 27, 1993 at 8, col 1, 1993 NYLJ LEXIS 81 [Civ Ct, NY County 1993]) the court phrased the threshold issue as follows: whether the exclusionary rule is to be applied in a civil proceeding to dispossess the tenant of an apartment on the grounds of the alleged illegal use of the apartment. The court answered the question in the negative. Pursuant to a search warrant, the police had gathered reams of evidence pointing to the use of and possible sale of drugs. The respondents sought to stay the proceeding pending the outcome of the criminal case or, in the alternative, determination by Civil Court of the legality of the evidence and statements obtained by the police.

The court first held that the sole justification for applying the exclusionary rule is its deterrent effect on unlawful behavior. (1993 NYLJ LEXIS 81, *5, citing United States v Janis,{**73 Misc 3d at 941} and United States v Calandra.) Just as in those cases, the court found that "[t]he probable deterrent effect resulting from suppression of illegally obtained evidence is insubstantial" since the gravamen of a summary proceeding is to restore possession of an apartment to a landlord, collateral to the original purpose for obtaining the challenged evidence. (Id. at *5-6, citing People v McGrath, 46 NY2d at 31.) The purpose of illegal use evictions under RPAPL 711 and 715 is not to provide an additional penalty for criminal behavior but to "protect the inhabitants . . . from prostitution, gambling and drug dealing." (Id. at *6-7; see 54 W. 16th St. Apt. Corp., 179 Misc 2d at 269.) Furthermore, the standards of proof in the two actions were totally different since under the RPAPL the petitioner "need only prove by a preponderance of the evidence that it is entitled to possession of the premises." (1993 NYLJ LEXIS 81, *7.) Put differently, "to assert a valid claim pursuant to RPAPL 711(5) [a] petitioner need not prove the commission of the specific illegal acts. Rather all that is necessary is that the acts and conduct proven warrant an inference that the premises were being used ['for any illegal trade or manufacture, or other illegal business']." (See 54 W. 16th St., 179 Misc 2d at 269; New York City Hous. Auth. v Manley, NYLJ, Jan. 8, 1997 at 26, col 2; see New York City Hous. Auth. v Grillasca, 12 Misc 3d 223, 224 [Civ Ct, NY County 2006] [In a drug holdover proceeding brought [*12]pursuant to RPAPL 711 (5), the court refused to preclude statements made by respondent to the police, finding that any purported Miranda violations had to be raised in the criminal court, not civil court].)

Based on the above, this court will consider all of the evidence gathered by the police to ascertain whether Boyd's actions, which ultimately resulted in a court order, involved any of the grounds specified in the RPAPL. The court notes parenthetically that Boyd's rights against self-incrimination and illegal searches and seizures were already protected by Justice DiMango's decision and applying the exclusionary rule herein would serve no further deterrence purpose. Boyd admitted that he (1) burglarized 136 Hicks Street and installed a video camera in an air conditioner in the bedroom of a 14-year-old girl (victim) who resided at said premises; (2) replaced the existing air conditioner with a new one in which the video camera was placed; and (3) installed a video camera in the victim's air conditioner so that he could record and then observe the girl in "various stages of undress" where she at times {**73 Misc 3d at 942}masturbated. The video camera was set up to wirelessly transmit the recordings to his camcorder; Boyd stated that he needed to be "nearby" the device to retrieve the recordings. Boyd also testified that he purchased assorted transmitters and antennae to enable the transmission of signals between the girl's apartment and his mother's apartment over the roofs of both buildings and facilitate his recording and viewing video images of the 14-year-old girl. He admitted that he "stored the recordings in his apartment" by making 17 video tapes of the victim masturbating in her bedroom over a one year period and date-stamping the tapes, and that he regularly edited and downloaded the tapes in his apartment.

Petitioner presented as its expert witness Gary Olson, a professional in the fields of video surveillance technology and equipment installation. Olson designed wireless systems for residential buildings, command control vehicles for first responders, Consolidated Edison, and the NY City Police and Fire Departments. Olson was familiar with the types of surveillance equipment that Boyd purchased in 2000: they were a "relatively standard compliment of equipment used for typical surveillance." Supercircuits, the store where Boyd purchased the items, was a catalog-type electronics store where anyone could order parts and have them shipped. The invoices accepted into evidence listed video links which were designed to attach to a camera or microphone and transmit to a receiver. The links consisted of a wireless transmitter/receiver pair that could extend the range of a video signal over a considerable distance. Olson opined that one would need some degree of technical knowledge to set up the equipment, including battery systems, cameras, a microphone, etc.

Olson walked from the roof of 36 Clark to the roof of 136 Hicks as they were connected to each other. He identified unobstructed lines of sight running from the furthest southern edge of the roof at 136 Hicks to the furthest northern edge of 36 Clark. He stated that unlike the roofs, the two bedrooms are not within line of sight with each other. However, the three wireless links that Boyd purchased could carry the camera's signal from the victim's apartment to the parapet window in Boyd's bedroom, since Boyd had installed a high-grade antenna—a Yagi antenna—which could transmit signals up to a mile and also improve the reception of wireless signals and make the received images clearer. Olson observed a metal fire escape stairwell, a parapet, and several metal poles on the roof{**73 Misc 3d at 943} where the Yagi antenna could be placed for maximum effectiveness. Olson stated that the Yagi antenna would enable a signal to be sent from the victim's apartment to the neighboring roof which would then "bounce" back into the stairwell of the building. The camera and transmitter hidden in the victim's apartment (link one) [*13]could send signals to a receiver transmitter on the roof of 136 Hicks (link two), which would transmit the signals to a third link receiver on the roof of 36 Clark, which would transmit the signals to Mr. Boyd's apartment. This is well within the abilities and specifications of the equipment.

If the pinhole camera and short-range transmitter were connected to the power in the air conditioner vent, the camera could operate indefinitely and would constantly transmit videos. The transmitter would send signals from the pinhole camera over to the receiver, and the output would be transmitted through the three links to connect by wire into the Sony Handycam. The person holding the receiver could not turn off the transmitter or manipulate the pinhole camera at the location which would always be transmitting. The person at the receiving end (Boyd) would use the Handycam to view and make tapes of the output of the pinhole camera that was currently being recorded. However, if an individual did not use the apparatus for several days, he would be unable to go back and see what happened during those days. The recording could take the form of a series of still images or a video. One could connect the Handycam to a computer and download the still or video images from the Sony Handycam. Although websites such as YouTube, Instagram and Facebook did not yet exist in 2000, personal Internet services did exist and images and videos could be easily shared via email.

There is no case which discusses whether the illegal "manufacturing" and viewing of child pornography is akin to the mere use, as opposed to the sale or distribution of illegal drugs, or whether such described activity must be "commercial in nature." Nor is there any precedent, as argued by petitioner, that the illegal activities engaged in by Boyd are so heinous that it is irrelevant whether Boyd actually engaged in a commercial enterprise.

As will be set forth below, this court adopts petitioner's argument. Boyd's extensive year long scheme to beam the young{**73 Misc 3d at 944} girl's acts into his home by means of transmission antennas and other apparatus, and his creation of numerous tapes of the recordings, comes within the definition of using the premises for illegal business, regardless of whether Boyd planned to sell the tapes in a commercial transaction. The distinction drawn in the plethora of cases between merely using drugs and selling the drugs is inapt since Boyd's conduct went well beyond using an already manufactured item on the computer for personal viewing. Boyd engaged in the business of manufacturing and creating a transmission scheme so that he could illegally view an underage female masturbate over a period of time in live time and then created at least 17 tapes of these recordings. He utilized the home of his mother to further his scheme.

Furthermore, Boyd's actions constituted a modern-day version of using or occupying the premises as a bawdy house, or house or place of assignation for lewd persons, or for purposes of prostitution. As will be explained below, this phrase is separated by the word "or" from the other phrase in section 711 (5)—"any illegal trade or manufacture, or other illegal business." Nothing in the actual text of sections 711 (5) or 715 requires proof of commercial purpose and there is no precedent requiring proof of commercial purpose in order to prove that the premises were used as a place of assignation for lewd persons.

A court's "primary consideration," when presented with a question of statutory interpretation, "is to ascertain and give effect to the intention of the Legislature." (Matter of Walsh v New York State Comptroller, 34 NY3d 520, 524 [2019]; Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 NY3d 1, 7-8 [2019], quoting Matter of Lemma v Nassau County Police Officer Indem. Bd., 31 NY3d 523, 528 [2018].) When interpreting a statute which has clear and unambiguous language, the court must derive the legislative intent from the plain meaning of the words, as the statutory text is the clearest indicator of legislative intent. (Matter of Peyton v New York City Bd. of Stds. & Appeals, 36 NY3d 271, 279 [2020]; Matter of DeVera v Elia, 32 NY3d 423, 435 [2018], citing Matter of Lemma, 31 NY3d at 528; Nadkos, Inc., 34 NY3d at 8; Doctors Council v New York City Employees' Retirement Sys., 71 NY2d 669, 674-675 [1988].)

The language of a statute is generally construed "according to its natural and . . . obvious sense." (Lohan v Take-Two{**73 Misc 3d at 945}Interactive Software, Inc., 31 NY3d 111, 121 [2018], citing Samiento v World Yacht Inc., 10 NY3d 70, 77-78 [2008].) "In the absence of a statutory definition, we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as useful guideposts in determining the meaning of a word or phrase." (Nadkos, 34 NY3d at 8, quoting Yaniveth R. v LTD Realty Co., 27 NY3d 186, 192 [2016]; Walsh, 34 NY3d at 524.) Further, a statute "must be construed as a whole and its various sections must be considered together and with reference to each other." (Matter of New York County Lawyers' Assn. v Bloomberg, 19 NY3d 712, 721 [2012].) The meaning of words are ascertained by reference to "the words and phrases with which they are associated." (McKinney's Cons Laws of NY, Book 1, Statutes § 239 [a]; Matter of DeVera, 32 NY3d at 436.)

In the most recent case of Bostock v Clayton County (590 US —, 207 L Ed 2d 218 [2020]), Justice Gorsuch specifically found that the straightforward application of title VII's prohibition against discrimination because of "sex," interpreted in accord with its "ordinary public meaning at the time of [its] enactment," barred the termination of employees simply for being homosexual or transsexual. (590 US at —, 207 L Ed 2d at 234.) Justice Gorsuch engaged in tenets of statutory construction which are particularly apt to the instant matter. He found that while those who adopted the Civil Rights Act might not have anticipated their work would lead to this result, and many were not thinking about "many of the Act's consequences that have become apparent over the years," such as the prohibition against discrimination on the basis of motherhood or its ban on sexual harassment, "the limits of the drafters' imagination supply no reason to ignore the law's demands." (590 US at —, 207 L Ed 2d at 230.)

Justice Gorsuch then addressed the employer's arguments that since title VII had a specific list of protected characteristics such as sex and religion that did not include homosexuality and transgender status, the latter two were implicitly excluded from title VII's coverage—in other words, had Congress wanted to address these matters, it would have specifically referenced them in title VII. (590 US at —, 207 L Ed 2d at 240.) The Court indicated that there is no such thing as a "canon of donut holes" in which Congress' failure "to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception." (590 US at —, 207 L Ed 2d at 240.) Instead, {**73 Misc 3d at 946}when Congress chooses not to include any exceptions to a broad rule, the broad rule applies. (590 US at —, 207 L Ed 2d at 240.) Thus, while sexual harassment and motherhood discrimination are conceptually distinct from sex discrimination, they fall within title VII's broad sweep.

The Court also debunked the argument that few legislators would have intended or expected in 1964 that title VII apply to discrimination against homosexual and transgender persons, given the lack of ambiguity in the statute's text. (590 US at —, 207 L Ed 2d at 242-243.) The fact that the statute's application reaches "beyond the principal evil" the legislators may have intended or expected to address, or that the statute has been applied to situations not expressly anticipated by Congress "does not demonstrate ambiguity" but rather "demonstrates [the] breadth of a [*14]legislative command." (590 US at —, 207 L Ed 2d at 243, citing Sedima, S. P. R. L. v Imrex Co., 473 US 479, 499 [1985]; see also A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts at 101 [2012] [unexpected application of broad language reflects only Congress' "presumed point (to) produce general coverage—not to leave room for courts to recognize ad hoc exceptions"].) Furthermore, the Court has always rejected the argument that it should refuse to enforce the plain terms of the law because a "new application" has emerged that is both "unexpected and important." (590 US at —, 207 L Ed 2d at 244-246.) In sum, since Congress adopted "broad language" in framing title VII, the necessary consequence of the legislative choice is that an employer who fires an employee merely for being gay or transgender defies the law. (590 US at —, 207 L Ed 2d at 249.)

The Bostock decision reiterated the Supreme Court's prior ruling that "[w]hile statutes should not be stretched to apply to new situations not fairly within their scope, they should not be so narrowly construed as to permit their evasion because of changing habits due to new inventions and discoveries." (Fortnightly Corp. v United Artists Television, Inc., 392 US 390, 395 n 16 [1968] [whether petitioner's community antenna television systems "performed" respondent's copyrighted work, as defined under the Copyright Act (17 USC § 1) by broadcasting movies].) Therefore, when faced with the application of a statute, drafted long before the development of the electronic phenomena before it, a court "must read the statutory language of 60 years ago in light of drastic technological change." (Fortnightly Corp., 392 US at 395.)

{**73 Misc 3d at 947}The California Supreme Court has ruled that in construing statutes that predate their possible applicability to new practices or technology, "courts have not relied on wooden construction of their terms." (Apple Inc. v Superior Ct., 56 Cal 4th 128, 136-137, 292 P3d 883, 886-887 [2013] [although the Song-Beverly Credit Card Act was "enacted in 1990, . . . almost a decade before online commercial transactions became widespread," that fact did not preclude the statute's application to such transactions (citation omitted)].) Fidelity to legislative intent does not "make it impossible to apply a legal text to technologies that did not exist when the text was created" as the drafters knew that technology will proceed and that the "rules they create will one day apply to all sorts of circumstances they could not possibly envision." (56 Cal 4th at 137, 292 P3d at 887, citing Scalia & Garner, Reading Law: The Interpretation of Legal Texts at 85-86.) Therefore, in applying existing statutes to new circumstances, the courts must first inquire how the legislature "would have handled the problem if it had anticipated it." (Ward v Tilly's, Inc., 31 Cal App 5th 1167, 1178, 243 Cal Rptr 3d 461, 469 [2d Dist 2019] [emphasis omitted].) There, the California Court of Appeals ruled that retail store employees were due reporting time pay pursuant to Wage Order 7, when they called into the store two hours before their shift. Although at the time Wage Order 7 was enacted, telephonic reporting had not been contemplated, such "contemporaneous understanding of 'report for work' [was] not dispositive," since its history reveals that the purpose in adopting reporting time pay requirements was twofold: to " 'compensate employees' and 'encourag[e] proper notice and scheduling.' " (31 Cal App 5th at 1178-1181, 243 Cal Rptr 3d at 469-472.) Therefore, had the Industrial Welfare Commission "considered the issue, it would have concluded that telephonic call-in requirements trigger reporting time pay," and "that the on-call scheduling alleged . . . triggers Wage Order 7's reporting time pay requirements" even though the employees did not physically show up to work. (31 Cal App 5th at 1171, 1182, 243 Cal Rptr 3d at 463, 473; see also O'Grady v Superior Court, 139 Cal App 4th 1423, 1465-1466, 44 Cal Rptr 3d 72, 104-105 [2006] [holding that an online news magazine constitutes a "periodical publication" under a law that was enacted well before the advent of digital magazines].)

The New York courts have also addressed how to analyze statutory terms in light of technological advances. In Matter of {**73 Misc 3d at 948}Comptroller of City of N.Y. v Mayor of City of N.Y. (7 NY3d 256 [2006]) the Court of Appeals determined that the term "property" included in New York City Charter § 362 (a)—which provides that a " '[c]oncession' shall mean a grant made by an agency for the private use of city-owned property for which the city receives compensation"—was not limited to only "real property" but also included intangible or intellectual property. The only qualifier to the term "property" in the statute was "city-owned"—and the drafters had removed the word "on" before the term "city-owed property," thereby demonstrating some intent not to limit the types of property covered by section 362 (a). (7 NY3d at 264-265.) Furthermore, "[i]t would be an unjust reflection upon the wisdom and intelligence of the [legislature] to assume that they intended to confine the scope of their legislation to the present, and to exclude all consideration for the developments of the future." (7 NY3d at 266.)

In Lohan v Take-Two Interactive Software, Inc. (31 NY3d 111 [2018]), the Court of Appeals held that an avatar—a graphical representation of person in a video game or like media—may constitute a portrait within the meaning of Civil Rights Law §§ 50 and 51. These two statutes, enacted in 1903, created a limited right of privacy by requiring a living person's written consent before their "name, portrait or picture" is used for advertising purposes. In response to the query as to how a reasonable person in 1903 could even imagine much less equate a portrait with computer imagery, the Court replied that it must employ the theory of statutory construction that "general terms encompass future developments and technological advancements." (31 NY3d at 121.) "In view of the proliferation of information technology and digital communication, . . . a graphical representation in a video game or like media may constitute a 'portrait' within the meaning of the Civil Rights Law." (Id. at 122; see People v Fraser, 264 AD2d 105, 109-110 [4th Dept 2000] [the Fourth Department upheld a jury instruction that a "photograph" could include a computer graphic image and noted that "it is impossible for the Legislature to consider every societal and technological change that may occur and the effect those changes may have upon the particular conduct it is seeking to regulate" and that the legislature did not have to amend the law to accommodate every advancement in technology], affd 96 NY2d 318 [2001]; see also People v Santiago, 1999 NY Slip Op 40004[U], *6-7 [Monroe County Ct 1999] ["this court must try to harmonize technology with statutory construction{**73 Misc 3d at 949} in accordance with the plain purpose, viz. the underlying policy, of the legislative enactment"].)

Applying these tenets of statutory construction to the instant matter, it is clear that Boyd's conduct falls within the term of other illegal business or illegal manufacture and constitutes the modern-day version of engaging in illegal lewd behavior by use of technology. Certain of the terms included within sections 711 and 715 are unambiguous and cover Boyd's conduct. The ordinary meaning of the term "manufacture" is "[a thing that is made or built by a human being or by a machine] as distinguished from something that is the product of nature." (Black's Law Dictionary [7th ed], as cited in Baird Props., LLC v Town of Coventry, 2015 RI Super LEXIS 111 [Aug. 31, 2015, CA No. KC-2015-0313]; see also Lonesource, Inc. v United Stationers Supply Co., 2013 WL 1309290, *6, 2013 US Dist LEXIS 44023, *18 [ED NC, W Div, Mar. 28, 2013, No. 5:11-CV-33-D] ["manufacturer" is a person or entity "engaged in producing or assembling new products," citing Black's Law Dictionary 984 (8th ed 2004)].) Clearly Boyd manufactured a product by strategically placing antennae, transmitters and receivers in the girl's apartment and on the roofs so that he could view the continuous recording [*16]of the teenage girl in his mother's apartment on his camcorder. Furthermore, Boyd manufactured 17 tapes from the continuous recordings which were transmitted to his camcorder. These activities constituted manufacturing and, by virtue of his conviction under Penal Law § 263.16, his recording of a minor in compromising positions constituted "illegal manufacturing."

It is also clear that Boyd engaged in an illegal activity or business endeavor to record the teenager in her home and create tapes of such conduct. In Atlantic Cas. Ins. Co., Inc. v River Hills Antique Tractor Club, Inc. (2012 WL 40467, *6, 2012 US Dist LEXIS 2266, *16-18 [ED Mo, Jan. 9, 2012, No. 1:10CV 72 LMB]), the parties disputed whether the definition of business had a definite or legal meaning which included "some element of commercial enterprise or profit motive." Each side quoted different dictionary definitions, including Black's Law Dictionary (198 [6th ed 1990]), which defines business as "[t]hat which habitually busies or occupies or engages the time, attention, labor and effort of persons as a principal serious concern or interest or for livelihood or profit." The court found that despite {**73 Misc 3d at 950}the existence of different meanings for the term business, the term was not ambiguous and that not all definitions of " 'business' include a commercial or profit aspect." (2012 WL 40467, *6-7, 2012 US Dist LEXIS 2266, *18-19.) The court pointed to one definition of business—"A matter or affair that engages a person's time, care and attention; that which one does for a livelihood; occupation; employment; mercantile concerns, or traffic in general; . . . what belongs to one to do; task or object undertaken; concern; right of action or interposing; affair; point; matter" (New Webster Encyclopedia Dictionary of English Language 109 [1952 ed])—as proof that business is "often used independently of any notion of profit" and is used in the broader sense "to describe one's 'affairs,' 'activities,' or 'livelihood.' " (2012 WL 40467, *6, 2012 US Dist LEXIS 2266, *18-19; see also People v Johnson, 52 Misc 2d 1087 [Crim Ct, NY County 1967], citing People v Gillette, 172 Misc 847, 848-849 [Rochester City Ct 1939] [the court found that the term "business" in former Vehicle and Traffic Law § 20 (1), which limited the use of a motor vehicle by a holder of a junior permit to the "usual and ordinary pursuit of the business of the parent or guardian," was not restricted solely to a productive trade, profession or occupation. The court looked to the broader definition of business found in A Standard Dictionary of the English Language which provided: "1. A pursuit or occupation; trade; profession; calling; also, commercial affairs. 2. A matter or affair. 3. Interest; concern; duty. 4. A commercial enterprise or establishment. 5. A state of being busy"].)

This court adopts the broad definition of business set forth above, which is confirmed by the definition of "business" found in Black's Law Dictionary (6th ed 1990), i.e., "[t]hat which habitually busies or occupies or engages the time, attention, labor and effort of persons as a principal serious concern or interest." The court finds that Boyd's creation of a laborious technological setup to continuously tape the minor over a year, and his creation of 17 tapes of these recordings habitually busied and occupied his time as a serious concern or interest regardless of whether he earned money for this endeavor. Although petitioner does not claim that Boyd sold the obscene material which he produced, he nonetheless conceded in his testimony that he busied himself with watching the obscene videotapes that he produced. Accordingly, this court deems Boyd's violation of Penal Law § 263.16 to be a ground for his eviction under RPAPL 711 (5). Nowhere in the text of RPAPL{**73 Misc 3d at 951}711 (5) or 715 is there a requirement that the illegal manufacture or business or immoral conduct be commercial, and only a few Civil Court decisions have read into the text the requirement that there be a commercial activity. Based upon the plain language of the statute and the canons of statutory construction, this court chooses not to read said requirement into these statutory provisions.

Historically, in order for a petitioner to prevail under RPAPL 711 (5) and 715, he must [*17]show that the tenant is using the premises "for an illegal or immoral purpose." (See generally Paragon Realty Corp. v Kelly, NYLJ, Oct. 30, 1996 at 2, col 6 [Civ Ct, Bronx County 1996]; Grosfeld Realty Co. v Lagares, 150 Misc 2d 22 [App Term, 1st Dept 1989]; Lloyd Realty Corp. v Albino, 146 Misc 2d 841 [Civ Ct, NY County 1990]; City of New York v Rodriguez, 140 Misc 2d 467 [Civ Ct, NY County 1988].) Therefore, the terms "any illegal trade or manufacture, or other illegal business" in RPAPL 711 (5) were interpreted in light of the preceding terms "bawdy house" or place of assignation for lewd persons. In Spira v Spiratone, Inc. (148 Misc 2d 787, 788 [Civ Ct, Queens County 1990]), the court denied petitioner landlord's request to expand the definition of "illegal use" to include public assembly for church purposes, despite the landlord's contention that the illegality was based upon building code violations such as inadequate exits, lack of fire retardant etc. and the "immediate danger and potential life threatening hazard" caused by the use.

The court first construed the terms "illegal trade, manufacture or business" in section 711 (5) "to be an activity which is either criminal in nature, such as gambling, theft or prostitution, or an illegal manner of conducting an otherwise legal business activity, such as the illegal manufacture of goods." (148 Misc 2d at 788.) The court then found that apart from specifying the use of the premises as a place of assignation for lewd persons or a bawdy house, the RPAPL contained no definition of what was encompassed under the phrase "or for any illegal trade or manufacture, or other illegal business." (Id. at 789, citing 2 Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 34.3 at 529 [3d ed 1988].) "There must be a showing that the tenant has departed from the legitimate or legal use for which the premises were hired, by some measurable degree of continuity of acts of vice related to the occupancy of the premises or to the method of conducting the business therein." (2 Dolan, Rasch's Landlord and Tenant—Summary {**73 Misc 3d at 952}Proceedings § 34:5 at 516 [4th ed] [emphasis added]; see Solow Bldg. Co. II, L.L.C. v Banc of Am. Sec., LLC, 13 Misc 3d 55 [App Term, 1st Dept 2006].) The court found the cases advanced by the landlord were inapposite since they involved "inherently criminal and immoral activities such as gambling, prostitution and theft," none of which pertained to the running of a church. (148 Misc 2d at 790 [emphasis added].) Simply put, the fact that the respondents operate the church in violation of the certification of activity did not constitute an activity that fell with the meaning of an illegal trade or business under section 711 (5). (See also New York v Rodriguez, 140 Misc 2d at 470 [Another factor to be taken into consideration is the "ill repute" of the building or the occupants thereof]; see Matter of Kellner, NYLJ, Nov. 26, 1986 at 11, col 6 [Civ Ct, NY County 1986].)

In 1165 Broadway Corp. v Dayana of N.Y. Sportswear (166 Misc 2d 939, 944-947 [Civ Ct, NY County 1995]), the court engaged in an intensive analysis of the legislative history of RPAPL 715 which this court adopts herein. The court found that "a plain reading of the statute" and the legislative history supported a "nonrestrictive application" of RPAPL 715 (1) to "any illegal business, trade or manufacture," and that said language covered an illegal business involving the sale and storage of counterfeit trademark goods: "By their very terms, these statutes were specifically intended to address any illegal business, trade or manufacture and should not be interpreted to arbitrarily exclude those illegal businesses which fail to directly impact on the health, morals, welfare or safety of the public," as urged by the respondents. (166 Misc 2d at 943.)

The court then found that nothing in the legislative history of RPAPL 715 (1) would warrant the restrictive construction urged by the respondents. In 1868, the legislature first [*18]passed an amendment to a statute that became known as the "bawdy-house" law, which provided that the owner of "any house or other real property . . . used or occupied as a bawdy house, or house of assignation for lewd person" could apply for a "warrant of dispossession." (L 1868, ch 764, § 55.) In 1880, the statute was amended and placed in the Code of Civil Procedure as section 2231 (4). The revised statute provided that the landlord could remove a tenant from property "where the demised premises, or any part thereof, are used or occupied as a bawdy-house, or house of assignation for lewd persons, or for any illegal trade or manufacture, or other illegal business." (L 1880, ch 178.) The 1947 bill jacket accompanying the amendments to{**73 Misc 3d at 953} the statute included a recommendation for approval by New York County Lawyers' Association which noted that the amendment "broadens the scope of the law" by including "not merely cases of lewdness, but also 'any illegal trade, business or manufacture,' " such as "gambling, or the surreptitious distillation of alcohol." (Rep of NY County Lawyers' Assn, Comm on Municipal Ct, Bill Jacket, L 1947, ch 284 at 3 [emphasis added].)

In fact, many courts have ruled that for a petitioner to prevail under RPAPL 711 (5) and 715, he must show that the tenant is using the premises "for an illegal or immoral purpose." (See generally Paragon Realty Corp. v Kelly, NYLJ, Oct. 30, 1996 at 2, col 6; Grosfeld Realty Co. v Lagares, 150 Misc 2d 22 [App Term, 1st Dept 1989]; Lloyd Realty Corp. v Albino, 146 Misc 2d 841 [Civ Ct, NY County 1990]; City of New York v Rodriguez, 140 Misc 2d 467 [Civ Ct, NY County 1988].)

Therefore, the legislative history of RPAPL 711 (5) and 715 reveals that illegal business was traditionally interpreted within the context of lewd or immoral conduct. The term "lewdness" is not a legal term of art but a word of common usage. (State ex rel. Miller v Rear Door Bookstore, 1991 WL 38204, *3, 1991 Ohio App LEXIS 1243, *8 [10th App Dist, Mar. 21, 1991, No. 90AP-986].) Webster's Third New International Dictionary defines "lewd" as "sexually unchaste or licentious . . . lascivious . . . inciting to sensual desire or imagination" (1991 WL 38204, *3, 1991 Ohio App LEXIS 1243, *8-9 [emphasis added]), whereas Black's Law Dictionary (11th ed 2019) defines "lewd" as "[o]bscene or indecent; tending to moral impurity or wantonness," while "lewdness" is defined as "[g]ross, wanton, and public indecency that is outlawed by many state statutes; a sexual act that the actor knows will likely be observed by someone who will be affronted or alarmed by it." (See People v Fibble, 49 Misc 3d 1220[A], 2015 NY Slip Op 51822[U], *7 [Crim Ct, Kings County 2015].) The New Oxford American Dictionary (3d ed 2010) defines lewd as "crude and offensive in a sexual way."

The common definition of "lewd" clearly shows "that there are activities of a sexual nature which are beyond the limits of what society deems tolerable." (State ex rel. Miller, 1991 WL 38204, *4, 1991 Ohio App LEXIS 1243, *12.) Black's Law Dictionary (11th ed) defines "lewd" as "[o]bscene or indecent; tending to moral impurity or wantonness," while "lewdness" is defined as "[g]ross, wanton, and public indecency that is outlawed by many state statutes; a sexual act that the actor{**73 Misc 3d at 954} knows will likely be observed by someone who will be affronted or alarmed by it." (See People v Fibble, 49 Misc 3d 1220[A], 2015 NY Slip Op 51822[U], *7 [Crim Ct, Kings County 2015].) The New Oxford American Dictionary (3d ed 2010) defines lewd as "crude and offensive in a sexual way." Lewd has been defined as "characterized by lust, obscene or indecent," and "offensive to accepted standards of decency" and "not so arcane as to escape the understanding of the average juror." (People v Pinkoski, 300 AD2d 834, 837-838 [3d Dept 2002].) One court has found that, like acts of obscenity, lewd acts are measured by the average citizen applying contemporary community standards (Penal Law § 235.00 [1]; People v Wade, 51 Misc 3d 612, 617-618 [Crim Ct, Kings County 2016]). While these definitions are broad and not identical, they clearly encompass the activities of Boyd described above.

In fact, implicit in Boyd's conviction under Penal Law § 263.16, much less Boyd's broader conduct in creating the videos and tapes, is the recognition that the materials he created might make their way into the outside market for sale and exploitation of the youth. Penal Law § 263.16 provides that "[a] person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control, or knowingly accesses with intent to view, any performance which includes sexual conduct by a child less than sixteen years of age." The Fourth Department found that the statute's purpose in prohibiting possession of child pornography, in every form, was a means to "eradicat[e] the market for such material," and that former Governor Pataki had noted that " '[s]omeone who possesses child pornography does so at the expense of an exploited child, and society cannot hope to eradicate this evil unless the market for these perverse materials is destroyed' (Governor's Mem approving L 1996, ch 11, 1996 NY Legis Ann, at 630 . . . )." (Fraser, 264 AD2d at 110.) Therefore, the prohibition against possession was inextricably linked to the goal of eradicating the spread of these materials in the perverted market that exploited children (id. at 110-111). A graphic image of a child engaged in sexual conduct captures the child's humiliation and preserves it into the future as permanently as does any photograph. (Id.) Furthermore, the advent of the computers "to transmit and possess child pornography can only increase the market for child pornography—especially with the clarity of images, the speed of transmission, and the ability to upload or{**73 Misc 3d at 955} download the images with ease" (id., citing State v Cohen, 696 So 2d 435, 440 n 5 [Fla Dist Ct App, 4th Dist 1997]).

In sum, this court finds that Boyd's extensive year long scheme to beam the young girl's acts into his home by means of transmission antennae and other apparatus, and his creation of numerous tapes of the recordings, comes within the definition of using the premises for illegal business regardless of whether Boyd planned to sell the tapes in a commercial transaction. The distinction drawn in the plethora of cases between merely using drugs and selling the drugs is inapt since Boyd's conduct went well beyond using an already manufactured item on the computer for personal viewing. In other words, Boyd did more than just view the pornography on the computer and create tapes of the pornography. Boyd engaged in the business of manufacturing illegal child pornography by creating an elaborate transmission scheme in or about his premises so that he could view the underage female in various sexual acts in real time.

This court also finds that Boyd's conviction under Penal Law § 263.16, and his underlying actions in utilizing the premises and their surroundings to create a technological apparatus to view a child masturbating in live time for over a year, constitutes a continuity of acts of vice or lewdness related to the occupancy of the premises. The legislature could not have been expected to anticipate, when it first started passing the Bawdy House Laws, that technology and videoconferencing and video usage would permit someone to invade the privacy of a minor's home and illegally view and create tapes of sexual acts that exploited the minor and aroused lewd and lascivious feelings in the eyes of the beholder.

Although Boyd met the first prong of 9 NYCRR 2204.6 (d), since his conviction and conditions of parole were tantamount to a court order which prevented him from residing at the subject premises for the requisite two year period prior to the tenant of record's death, he did not meet the second prong. His court order and his underlying actions constituted grounds for eviction specified in the RPAPL. Therefore, Boyd does not meet the residency requirement and he is not entitled to succeed to the tenancy of Elizabeth Boyd. Petitioner is directed to prepare an order of eviction for this court to sign.