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Petitioner commenced this proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules (CPLR)

A Kings Criminal Lawyer said that, petitioner was self-represented, but retained counsel for oral argument. Counsel, however, failed to enter a notice of appearance. Respondent was represented by the Counsel to the Corporation Counsel of the City of New York. Petitioner commenced this proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules (CPLR), challenging the decision of the New York Health and Hospitals Corporation Personnel Review Board (Respondent) in affirming the Health and Hospital Corporation’s decision to disqualify petitioner from appointment to the position of “special officer” under Examination No. 6090. Petitioner asks the Court to reverse this decision, thereby deeming petitioner qualified for the position to which he applied. Petitioner was pro se until the date of his Oral Argument in this matter. He was represented by counsel for oral argument.

A Kings Marijuana Possession Lawyer said that, respondent cross-moves the Court to dismiss the petition on the ground that the Personnel Review Board’s decision was rationally based, and was not arbitrary, capricious or unlawful.

On October 16, 2009, petitioner applied for the position of “special officer” with the respondent hospital. The “special officer” position is designated as a Peace Officer position pursuant to New York Criminal Procedure Law Section 2.10. To be found eligible for this position, candidates must meet the requirements for Peace Officer status in New York State, which includes proof of good character. As such, respondent requires all applicants to reveal all arrests, convictions and pending charges. Consistent with this requirement, petitioner duly noted his record with specificity on his application for employment with the respondent.

As part of the application process, petitioner was subject to a background investigation by the New York City Department of Citywide Administrative Services (DCAS). Upon DCAS’s recommendation, petitioner’s application was denied on the basis of (1) his arrest and conviction record, and (2) his failure to accurately disclose his prior employment history. His appeal of DCAS’ decision to the Personnel Review Board of The New York City Health and Hospitals’ Corporation was denied by a decision dated July 22, 2011. Petitioner timely commenced his Article 78 Application on September 15, 2011.

Among the exhibits provided to the Court by the parties is a document entitled “NOTICE OF EXAMINATION” “Special Officer (HHC)”. This document contains detailed descriptions of “What the Job Involves”, “salary” and “How to apply”. The applicant is instructed to reveal “ALL arrests, convictions and pending charges that have occurred in your lifetime. This includes any materials sealed, expunged, or set aside under Federal or State law…”

The document also lists the factors which may be cause for disqualification: “(a) conviction of an offense, the nature of which indicates lack of good moral character or disposition toward violence or disorder, or which is punishable by one of more years of imprisonment; (b) two or more convictions of an offense, where such convictions indicate disrespect for the law; (c) discharge from employment, where such discharge indicates poor behavior or inability to adjust to discipline; (d) dishonorable discharge from the Armed Forces.”

A Kings Criminal Lawyer said that, a copy of portions of petitioner’s application were attached as “exhibits” both by petitioner and respondent, along with several other exhibits including a New York City Police Department “Criminal History Search Based Solely on NYPD Records within the Environs of New York City Only”. Petitioner’s fingerprints are found on this document and the document is dated August 29, 2008. After a search based upon petitioners fingerprints the following is noted on said document: “Criminal Record: no”. At the top of this document is found this statement: “Good Conduct Certificate”. Petitioner also attached a copy of a “Certificate of Merit” presented to him by “The Criminal Court of the State of New York” in recognition of outstanding and dedicated service to the People of the State of New York during the BLIZZARD of 1996″. Several other letters and documents are also provided by petitioner and respondent and will be referred to when relevant.

The issue in this case is whether the Personnel Review Board’s decision was irrationally based, and was arbitrary, capricious or unlawful.

According to New York Practice Law and Rules (CPLR), in an Article 78 proceeding, an administrative agency’s decision may be disturbed by the courts if that decision was arbitrary, capricious or erroneous as a matter of law. CPLR § 7803(3). A reviewing court should look to the “whole record to determine whether there exists a rational basis to support the findings upon which the agency’s determination is predicated”. Whether a rational basis exists turns on whether the administrative determination is supported by substantial evidence, which is defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.” In the instant matter, the Personnel Review Board for New York City Health and Hospitals Corporation based its decision upholding petitioner’s disqualification for the position of Special Officer on the following grounds: 1. “DCAS recommended the disqualification of the Appellant, largely due to his record of arrests and convictions for unlawful possession of marijuana’. 2. “His termination from prior similar employment.” 3. “His omission of this prior termination when he applied for exam 6090”.

A thorough review by the Court of all submissions in this matter and a search of the record indicates that all three of these grounds for disqualification are factually incorrect.

On petitioner’s employment application for the position of “special officer” he lists an arrest in 1977 for allegedly possessing a “gravity knife” in the glove compartment of his car. He pled guilty to disorderly conduct, and was “conditionally discharged” and his record sealed. Petitioner was 19 years old at the time of his arrest. Petitioner’s next arrest which resulted in a conviction occurred on April 2, 2000, approximately 23 years after his first arrest in 1977. Petitioner was charged with possession of a controlled substance, to wit, marijuana possession, and pled guilty to disorderly conduct. Petitioner was conditionally discharged and the charge was later dismissed and the record sealed. These are petitioner’s only convictions. Petitioner was also arrested on criminal possession of marijuana 11/10/98, 8/18/99, 2/17/01, 3/9/04 and 9/8/06. Each of these arrests was dismissed. The date of his employment application for the position of “special officer” was October 16, 2009 – more than three years after his last arrest (September 8, 2006) for unlawful possession of marijuana, a charge which was dismissed on October 5, 2006.

On August 29, 2008, the NYPD’s Public Inquiry & Request Section issued a “Good Conduct Certificate” to the petitioner and found that he had no criminal record based upon his fingerprint submission for a Search of his Criminal History. Petitioner also pointed out in his petition, affidavit and exhibits that between his first arrest in 1977 and his conviction in 2000, he had no arrests during this twenty-three year period.

Thus, petitioner had one arrest for possession of marijuana which resulted in a plea and conviction for disorderly conduct. The conviction was later dismissed and the record sealed. All of petitioner’s other arrests for marijuana possession resulted in dismissals.

As regarding character and background for the position of Special Officer, HHC, among the factors listed as reasons for being found unqualified as mentioned above, are convictions not arrests. The only convictions to be considered are those which indicate lack of good moral character, or a disposition toward violence or disorder. Petitioner’s convictions which could indicate a lack of good moral character occurred in 1977 and 2000. These convictions are separated by 23 years, and the last in 2000 occurred 9 years before petitioner’s application. Both of these convictions were conditionally discharged and the record sealed. Petitioner has never been sentenced to a period of incarceration.

Moreover, New York Correction Law §753: “Factors to be considered concerning a previous criminal conviction; presumption” states as follows at “2.” “In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall also give consideration to a certification of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein.” Petitioner presented his Certificate of Good Conduct at his appeal and hearing before the Personnel Review Board, and no evidence was offered by respondent to rebut this presumption. Furthermore, petitioner obtained a second “Good Conduct Certificate dated April 19, 2011 and was again found to have “no criminal record” by an NYPD search based upon petitioner’s fingerprints in 2011.”

Where a court finds that a respondent has disqualified a petitioner by failing to address the eight obligatory Correction Law factors and give proper consideration to evidence of petitioner’s rehabilitation and good conduct including his Certificate of Relief from Disabilities, or Certificate of Good Conduct, the respondent’s decision to disqualify has been found to be arbitrary, capricious and an abuse of discretion.

In the instant matter, petitioner has two convictions for disorderly conduct one for possession of a “gravity knife” when petitioner was 19 years old, and a second for possession of marijuana over 23 years later. Both of these convictions resulted from petitioner pleading guilty to disorderly conduct. All of petitioner’s other arrests were dismissed with the exception of these two convictions for which petitioner pled guilty to a lesser offense and was never sentenced to a term of incarceration Moreover, §752 and 753 address only convictions and not arrests. Although respondent maintains that petitioner had two convictions for marijuana possession, respondent is incorrect. Petitioner had two convictions for disorderly conduct, only one of which resulted from an arrest for unlawful possession of marijuana, and both of which were conditionally discharged.

New York Corrections Law Article 23A: Policy Considerations: “Article 23A of the Correction Law was enacted in 1976 in an attempt to eliminate the effect of bias against ex-offenders which prevented them from obtaining employment. Studies establish that the bias against employing or licensing ex-offenders was not only widespread but particularly unfair and counterproductive.”

The Legislature has determined that, as a general rule, it is unlawful for a public or private employer to deny an application for a license or employment on the ground that the applicant was previously convicted of a crime. This general prohibition advances the rehabilitation and reintegration goals of the Penal Law. Furthermore, barring discrimination against those who have paid their debt to society and facilitating their efforts to obtain gainful employment benefits the community as a whole. The direct relationship’ exception and the unreasonable risk’ exception to this general rule may be resorted to only upon a consideration of each of the eight factors enumerated in Correction Law § 753.

The second two reasons respondents have given as reasons for petitioner’s disqualification are both factually incorrect. Petitioner has never been terminated from a position, and he revealed his entire employment history in his application for employment including the fact that he had been “written up” for having left his security guard station without permission.

Finally, the State of New York and this court practice a policy in favor of rehabilitation and encourages the employment of persons with a prior conviction as set forth in New York Correction Law Article 23A.3

Accordingly, the Court finds that the determination of respondent is arbitrary, capricious, and erroneous as a matter of law. While basing its finding that petitioner was disqualified on grounds that were factually incorrect and in error, respondent also failed to specify the bearing, if any, that petitioner’s convictions, which have had on his fitness or ability to perform such duties or responsibilities and the position at issue called for. The Court finds that since all the factors enumerated in Correction Law §753 were not properly addressed and considered, the determination that petitioner must be disqualified is arbitrary, capricious, and erroneous as a matter of law.

Accordingly, the court ordered that, the instant Article 78 petition is granted to the extent that the July 22, 2011 denial by respondent of petitioner’s application for employment as a security guard is hereby annulled; and it is further ordered, that the instant matter is remanded to respondent for a new determination based upon the”: eight factors enumerated in Correction Law §753(1); and, the statutory presumption of rehabilitation with respect to a Certificate of Good Conduct, pursuant to Correction Law §753(2).

If you have been previously convicted of a crime of unlawful possession of marijuana and your employer discriminates against your employment, seek the assistance of a Kings Marijuana Possession Defense Attorney and Kings Criminal Attorney at Stephen Bilkis and Associates.

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