17-327. 222 EAST 12 REALTY LLC, pet-lan-app, v. CHRIS MCNALLY, res-ten, -and- DORA BLOUNT, res-unt-res — Order (Jack Stoller, J.), dated November 10, 2016, insofar as appealed from, affirmed, with $10 costs.We agree with Civil Court that respondent Dora Blount made a prima facie showing of entitlement to summary judgment dismissing the holdover petition on the ground that she is a “permanent tenant” under the Rent Stabilization Code [9 NYCRR] §2520.6(j). The record shows, and it is not disputed, that respondent resided in the subject hotel dwelling unit for at least six months; landlord was aware of her occupancy as she paid rent in her own name, sued landlord in her own name in an HP proceeding, and even requested a lease in her own name. Thus, respondent qualified as a “permanent tenant” — a term broadly defined in the Code as “an individual or such individual’s family members residing with such individual, who have continuously resided in the same building as a principal residence for a period of at least six months” (RSC §2520.6[j]; see Einhorn v. McCloud, 57 Misc 3d 139[A], 2017 NY Slip Op 51323[U] [App Term, 1st Dept 2017]; 25 W. 24th St. Realty Corp. v. Gianquinto, 55 Misc 3d 28 [2017]; Kanti-Savita Realty Corp. v. Santiago, 18 Misc 3d 74 [2007]).We have considered landlord’s arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 26, 201817-360. AIMCO 240 WEST 73RD STREET, LLC, pet-lan-app, v. SAMUEL KOREN, res-ten, -and- FRIDA KOREN, res-occ — Final judgment (Jean T. Schneider, J.), entered on or about July 20, 2016, affirmed, without costs.Giving due deference to the trial court’s findings of fact and credibility, we find no cause to disturb the court’s determination that respondent-occupant Frida Koren was a “permanent tenant” of the subject hotel accommodation (Rent Stabilization Code [9 NYCRR] §2520.6[j]). The trial evidence showed, and the court found, that respondent, her then-husband and their two sons began residing in the premises in August 1986; the family lived openly in the subject unit and paid rent in person at the front desk for years; the manager of the building during the period 1982 to 2000 recognized respondent and her family as the tenant of the subject accommodation; and that respondent “occupied the subject building as her principal residence for almost 30 years.” Thus, respondent qualifies as a “permanent tenant” — a term broadly defined in the Code as “an individual or such individual’s family members residing with such individual, who have continuously resided in the same building as a principal residence for a period of at least six months” (RSC 2520.6[j]; see Einhorn v. McCloud, 57 Misc 3d 139[A], 2017 NY Slip Op 51323[U] [App Term, 1st Dept 2017]; 25 W. 24th St. Realty Corp. v. Gianquinto, 55 Misc 3d 28 [2017]; Kanti-Savita Realty Corp. v. Santiago, 18 Misc 3d 74 [2007]).Landlord’s contention that the family entered into the premises illegally in 1986 is unavailing, inasmuch as the prior manager testified that he recognized the family as the tenant and accepted rent from them for many years. Indeed, upon respondent’s divorce, her son, Stephen, was permitted to register as the tenant. We have considered landlord’s remaining arguments and also find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 26, 201813-060. THE PEOPLE OF THE STATE OF NEW YORK, res, v. JUAN ARIZA, def-app — Judgment of conviction (Rita M. Mella, J.), rendered April 19, 2012, is affirmed.The verdict convicting defendant of driving while ability impaired (see Vehicle and Traffic Law §1192[1]) was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court’s credibility determinations, including its assessment of police testimony about defendant’s condition upon his arrest (see People v. Reyes, 136 AD3d 443 [2016]).Contrary to defendant’s further contention, the court did not err in permitting the arresting officer to testify regarding a horizontal gaze nystagmus field sobriety test (HGN test) administered to defendant without first conducting a Frye hearing. “‘[HGN] tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test’s acceptability’” (People v. Julius, 93 AD3d 1296, 1297 [2012], lv denied 19 NY3d 963 [2012]; see People v. Tetrault, 53 AD3d 558, 558-559 [2008], lv denied 11 NY3d 835 [2008]; People v. Hammond, 35 AD3d 905, 907 [2006], lv denied 8 NY3d 946 [2007]; People v. Grune, 12 AD3d 944, 945 [2004], lv denied 4 NY3d 831 [2005]). Additionally, the People laid a proper foundation establishing the officer’s qualifications to administer the test and the techniques employed (see People v. Julius, 93 AD3d at 1297).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 26, 201814-428. THE PEOPLE OF THE STATE OF NEW YORK, res, v. MELVIN DEJESUS, def-app — Judgment of conviction (Diana M. Boyar, J.), rendered January 7, 2014, affirmed.The court properly denied defendant’s suppression motion. There is no basis for disturbing the hearing court’s credibility determinations, which are supported by the record (see People v. Prochilo, 41 NY2d 759, 761 [1977]; People v. Martin, 112 AD3d 453, 454 [2013]). The police had probable cause to arrest defendant for harassment in the second degree (see Penal Law §240.26), disorderly conduct (see Penal Law §240.20), or both. Defendant’s pattern of conduct, after his removal from a bus in New Jersey for violent and threatening conduct towards the driver, including following the driver into a restricted area inside the New York Port Authority Bus Terminal, moving towards the driver in an aggressive manner and yelling “I know how to find you…don’t think I don’t know how to get to you;” and refusing to comply when directed to leave the restricted area, prompting the officer to “restrain” him, placed the driver in reasonable fear of physical injury (see Matter of Gquan D., 110 AD3d 473 [2013]), and intentionally or recklessly created a risk of a potential or immediate public problem (see People v. Weaver, 16 NY3d 123, 128 [2011]; see also People v. Bigelow, 66 NY2d 417, 423 [1985])Since the police had the requisite probable cause to arrest defendant, the subsequent recovery of drugs on defendant’s person during a search incident to that arrest was proper (see People v. Perry, 102 AD3d 472, 472-473 [2013], lv denied 20 NY3d 1102 [2013]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 26, 201815-228. THE PEOPLE OF THE STATE OF NEW YORK, res, v. MICHAEL MCNEIL, def-app — Order (Raymond L. Bruce, J.), dated November 17, 2014, affirmed.The court properly adjudicated defendant a level three sex offender. Defendant was properly assessed 15 points for lack of supervised release, since he was not sentenced to any post-release supervision on the SORA qualifying offense, a 2014 sexual misconduct conviction, notwithstanding that defendant was released from jail into the supervision of the Department of Parole to complete a period of post-release supervision for his prior, 2003 burglary conviction. “The Board Guidelines make it clear the RAI scoring is predicated upon consideration of an offender’s ‘current offense,’ which clearly relates to the SORA qualifying offense and not necessarily other offenses that a defendant may have committed” (People v. Reid, 141 AD3d 156, 159 [2016], lv denied 28 NY3d 901 [2016]). Since the burglary conviction was not the qualifying offense under SORA, it cannot serve as the basis for the guideline scoring required under the RAI (see People v. Reid, 141 AD3d at 157). While the supervision on the nonqualifying burglary offense could have been considered on the issue of a possible departure (see id. at 160), defendant did not request a downward departure at the SORA hearing.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 26, 2018
