The following papers read on this motion:Notice of Petition and Affidavits XAffirmation in Opposition XReply Affirmation XReply Memorandum of Law XFor a Judgment Pursuant to Article 78 of the Civil Practice Law and RulesRelief RequestedThe petitioner moves for an order reversing the Decision of the Hearing Officer of the County of Nassau Office of Housing & Community Development dated June 27, 2018, terminating the Housing Choice Voucher Assistance of Tyrone Tillman, and directing the respondents to issue a Moving Voucher to Mr. Tillman. Respondents submit opposition. Petitioner submits a reply.BackgroundThe petitioner has been a Section 8 participant since 2009. In September of 2015, the petitioner was convicted of forcible touching (PL 130.52) and sexual abuse in the third degree (PL 130.55), resulting from an arrest in July of 2014. The petitioner is now registered as a Level 2 Sex Offender on the New York State Sex Offender Registry.On March 30, 2018, the Nassau County Office of Housing & Community Development (hereinafter referred to as “OHCD”) issued a Notice of Intent to Terminate Housing Choice Voucher Assistance due to criminal activity, listing the following reasons:“Participant listed as Level 2 Sex Offender on NYS Sex Offender Registry. Convicted of Forcible Touching (PL 130.52) and Sexual Abuse-3rd Degree (PL 130.55).”At petitioner’s request, an informal hearing was scheduled, of which the petitioner was notified by letter dated April 23, 2018. The informal hearing was ultimately held on June 1, 2018. The petitioner appeared with counsel and presented evidence in support of his arguments.In the Decision of the Hearing Officer, dated June 27, 2018, evidence submitted by OHCD as well as Mr. Tillman was considered, and Mr. Tillman’s arguments were articulated throughout the findings of fact. Of note, the decision acknowledges that the designation as a “Level 2 Sex Offender” carries with it a “moderate risk that an offender will commit another sex crime.” The decision states the fact that such offenders must be registered for life “suggests that the offender’s criminal activity ‘threatens the health, safety, or right of peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises.’” The decision additionally notes that it was not the requirement that Mr. Tillman register as a sex offender, but rather, the convictions themselves, that were the grounds for his termination pursuant to 24 CFR 982.551.Applicable LawJudicial review of a determination of an administrative agency is limited to the questions enumerated in CPLR 7803, including “whether a determination was made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence” (CPLR 7803[4]; see also Matter of Rosario v. Municipal Hous. Auth. for City of Yonkers, 141 A.D.3d 664). Substantial evidence has been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (Matter of Aschkenasy v. Municipal Hous. Auth. for City of Yonkers, 132 A.D.3d 985).Regarding the alleged grounds for Mr. Tillman’s termination, 24 CFR 982.551(l) states “[t]he members of the household may not engage in drug-related criminal activity or violent criminal activity or other criminal activity that threatens the health, safety, or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises.”DiscussionIn support of his petition, the petitioner argues that the Decision of the Hearing Officer was based solely on Mr. Tillman’s status on the NYS Sex Offender Registry, and not based on Mr. Tillman’s actions and convictions themselves. Petitioner insists that regulations and case law prevent respondents from terminating petitioner’s participation in the Section 8 program “just because he is a lifetime sex offender.” However, contrary to these assertions, the Decision of the Hearing Officer makes clear that Mr. Tillman’s actions and convictions, and not his mere presence on the NYS Sex Offender Registry, were the grounds for the termination of his benefits. Specifically, it states the following:“OHCD does not allege, nor did it argue, that being required to register as a lifetime sex offender is grounds, in and of itself, for termination. Rather, being a convicted level 2 sex offender is grounds for termination under 24 CFR 982.551, as a person classified as such is defined as a moderate risk of committing another sexual offense and thereby is a threat to the health, safety, or right of peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises.”As the Decision of the Hearing Officer articulates, petitioner’s characterization of his termination incorrectly argues that petitioner’s presence on the NYS Sex Offender Registry is the only ground for his termination, while completely ignoring the facts of petitioner’s arrest and convictions. It is clear in the Notice of Intent to Terminate Housing Choice Voucher Assistance and in the Decision of the Hearing officer that petitioner’s convictions form the basis for his termination. Further, the purpose of including petitioner’s status on the NYS Sex Offender Registry was to demonstrate that petitioner carried a moderate risk of committing another offense. Such a risk can clearly be seen as “a threat to health, safety, or the right of peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises.”Accordingly, OHCD has demonstrated that the Decision of the Hearing Officer was based upon substantial evidence pursuant to 24 CFR 982.551.ConclusionIn light of the foregoing, the petitioner’s motion is denied.
