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As a former Queens ADA and a principal law clerk to Queens Supreme justices sitting in the Criminal Term, I had a great deal of experience in the area of criminal law before ascending the bench as a Housing Court judge. Some of the cases that interested me the most, and I enjoyed writing about, by way of both published decisions and articles, were the holdover proceedings that were intertwined with the criminal law.

More often than not, they involved the sale and/or possession of drugs or prostitution and were brought under Real Property and Proceeding Law (RPAPL) §715(1) [known as the “Bawdy House” law] in conjunction with §711(5) and Real Property Law (RPL) §231(1). Recently, in, East Midtown Plaza Hous. Co. v. Gamble, 2018 NY Slip Op 28164 (AT 1st Dept, 6/1/18), the landlord’s motion for summary judgment was granted by the trial court and affirmed because the record “conclusively established that the apartment premises were used for prostitution on an ongoing basis, that the tenant knew of and acquiesced in this illegal activity, and, indeed, received a portion of the proceeds from such activity.”

As I wrote in an article titled ‘Diaz’ and Eviction Proceedings for Illegal Drug Activities, NYLJ, 3/7/07, the “interplay between criminal proceedings and eviction proceedings, which are civil in nature, is derived from the statutory scheme” which is set forth in the statutes noted above which “coalesce with regard to alleged illegal activities.” Such cases “involve matters of public policy for the protection of the safety and welfare of neighboring tenants and the community.”  See, also, Heymann, Eviction Proceedings for Alleged Illegal Drug Activities: An Overview, NYLJ, 5/28/99.

The landlord – tenant relationship is severed with the commencement of a holdover proceeding. Where a landlord can establish that the tenant has breached a substantial obligation of his or her lease, as a result of criminal activity or otherwise occurring in a premises, a judgment and warrant will issue at the successful conclusion of a holdover proceeding. Generally, in a holdover proceeding involving illegal activity, it is more than likely that the tenant(s) or other individual(s) involved in such activity will have previously been arrested and charged with, or even convicted of, a crime related to the premises prior to the commencement of the proceeding.

In contrast, however, where a landlord commences a nonpayment proceeding, the intent is merely to collect arrears and maintain the landlord – tenant relationship.  At the successful conclusion of the nonpayment proceeding, the landlord will obtain a judgment for the amount of arrears as determined by the court or as stipulated between the parties and the landlord can apply for a warrant. If the arrears are not paid by a date certain as ordered or stipulated, the landlord can request the marshal to execute on the warrant. The landlord has the option of simply having the lock(s) on the door(s) changed or a full eviction where all the property is removed from the premises and held in storage.

In People v. McCullum, 2018 NY Slip Op 00570, (AD 2nd Dept, 1/31/18), the Appellate Division, Second Department [Cohen, J], in a case of first impression, discussed the issue of an individual’s Fourth Amendment right of expectation of privacy when it comes up against a landlord’s legal right to evict the occupants of the subject premises, based on a nonpayment proceeding, as opposed to a holdover for a substantial violation of the lease. In short, the court held that an occupant does not retain such protections once a warrant is issued and the marshal tenders “legal possession” of the leasehold to the landlord.

Summary of Facts

In 2011, the defendant, McCullum, moved into a room in an apartment leased by Tanzania Mosley, and shared by Mosley’s husband, Bobby Taybron, and Mosley’s two children. The defendant, McCullum, had a key to enter the apartment and a separate one for his room.

On Jan. 26, 2012, as a result of a nonpayment proceeding, the marshal effectively evicted all the occupants by changing the locks to the apartment door, thus executing a partial eviction by giving “legal possession” to the landlord, yet allowing the occupants’ possessions to remain inside.

Later that day, the police were notified that someone was trespassing in the same premises and went to investigate. When they arrived at the scene, a security guard informed them of the prior eviction and gave them a key to enter. However, they soon realized that someone was still in the apartment trying to keep the door shut until it finally gave way as the person ran out the back door. The police gave chase and caught up with the person who was identified as Taybron. The police then brought Taybron back to the apartment in handcuffs and proceeded to search the entire apartment for further intruders.

On the lower level of the apartment the police found a bedroom with the door open and “observed a clear plastic container with five bullets inside… a gun cleaning kit on the floor in front of the bed and a black hard plastic case” which contained four handguns inside. The search ultimately turned up eight guns. When the officers questioned Taybron about the bedroom he informed them that it belonged to McCullum.

The defendant was subsequently convicted of criminal possession of a weapon in the second degree, upon a jury verdict, and appealed the court’s denial of his motion to suppress the evidence seized in his bedroom.

The defendant had moved to suppress the guns on the grounds that he had an “expectation of privacy” in his room and that he should have been given an opportunity to remove his possessions even after the landlord obtained legal possession. He further argued that once Taybron was apprehended there was no need for the officers to re-enter the apartment and that the only items that the officers could have seen were the five rounds of ammunition in the clear plastic bag, which should have concluded their search.

In opposition, the people argued that the officers had a right to re-enter the apartment to search for any additional trespassers and seize any contraband found in “plain view.” They further held that defendant’s expectation of the right of privacy ended upon the legal transfer of the apartment to the landlord.

The court denied that branch of defendant’s Omnibus Motion to suppress the weapons seized and determined that he “lacked standing to challenge the search and seizure after legal possession had been effected.”

Summary of the Appellate Court’s Analysis

The court stated that a legitimate expectation of privacy requires both “subjective” and “objective” components and to have standing for successful suppression of the items seized the defendant must prove both: [1] an expectation of privacy of the place or item searched; and [2] whether society would recognize such expectation as reasonable under the circumstances.

At the suppression hearing, the defendant had the burden to prove that the search was illegal in order to challenge it. To meet the two criteria above, the defendant claimed that he put a lock on the door to demonstrate his “subjective” expectation of privacy of the items in his room and that he met the “objective” expectation of privacy by sleeping in the room every night.

The defendant further argued that the fact that an eviction had taken place prior to the search of the apartment and, more specifically, his room did not “compel a contrary conclusion, because the people had failed to establish that the eviction was legal.” The defendant averred that when the marshal secured the apartment and tendered only “legal possession” to the landlord, without more [ie: removing all the possession inside, known as a “full eviction”], the landlord became the bailee of the tenant and, therefore, the defendant retained his expectation of privacy regarding the contents of his “bedroom.”

The appellate court found no merit to the defendant’s argument. The landlord had properly gone through all the necessary procedures to commence the nonpayment proceeding and, upon obtaining a judgment and a warrant, the landlord – tenant relationship was annulled by operation of law. The landlord then directed a city marshal to execute upon said warrant. As the court properly pointed out, an execution of the warrant either by a full eviction or by effectuating a legal possession [“partial eviction”] is a “distinction without a difference.”

The defendant alleged that the “legal possession” maintained his expectation of privacy but conceded that had a “full eviction” taken place he would no longer have such expectation of privacy. The defendant also challenged the legality of the marshal’s warrant because it was not signed by a judge and that he did not receive the proper notice prior to its execution. The court dismissed these contentions stating that while the “marshal’s legal possession” letter failed to establish that it was obtained legally, the defendant’s proof failed to demonstrate that it was not.

Although not addressed by the court, the landlord was merely seeking to collect arrears from the tenant(s) of record and, if the monies were paid, continuing the landlord – tenant relationship. That is generally why landlords only seek partial evictions. In all probability, the landlord did not even know of the defendant’s existence or that he was residing in the premises. The landlord had no privity of contract or relationship with McCullum.

The nonpayment proceeding was strictly between the landlord and Mosely and only Mosely would be entitled to any pleadings and other notices, including a notice of eviction. The rights of anyone else in the apartment, under these circumstances, was merely derivative, and other “family” members need not be named or served. A fortiori, in this case the defendant was neither a member of the family, a “sublessee” under RPL §226(b) or a “roommate” under RPL §235(f) entitled to any additional rights that terminated upon the execution of the warrant whether the eviction was a “partial” or “full” one.

At best, he was a licensee, whose license to remain in the apartment could be terminated at the pleasure of the tenant of record. Hence, once the tenant of record lost her right to enter the premises so did the defendant, as her rights were superior to his. If the tenant of record had violated a substantial obligation of the lease regarding subleasing, roommates, illegal activity, etc., the landlord could have proceeded to evict by way of a holdover proceeding to regain possession of the premises. As noted above, by commencing a nonpayment proceeding that apparently was not the landlord’s initial intent.

As the court concluded, “[g]iven that the defendant had no legal right to possess or control the subject apartment after the landlord was given legal possession thereof, any subjective expectation of privacy he manifested in the bedroom which he had occupied in the apartment was not objectively reasonable.” ***

“Accordingly, the defendant failed to establish that he had a legitimate expectation of privacy in the bedroom that he occupied after the execution of a legal possession, either on the basis that there was a lack of proof as the legality of the city marshal’s actions in executing a legal possession of the subject apartment, or that a former occupant maintains a legitimate expectation of privacy after a legal possession has taken place.”

George M. Heymann is a retired New York City Housing Court judge, of counsel to Finz & Finz and a certified mediator.