In the Matter of Jacqueline Perez, Respondent,v.John B. Rhea,, Appellant.BriefN.Y.January 10, 2013To Be Argued By: Seth E. Kramer 10 minutes requested New York County Supreme Court Index No. 110920/09 COURT OF APPEALS In the Matter of the Application of JACQUELINE PEREZ, Petitioner-Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law And Rules, , -against- JOHN B. RHEA, as Chairman of the . New York City Housing Authority, Respondent-Appellant. REPLY BRIEF OF RESPONDENT-APPELLANT KELL YD. MACNEAL Acting General Counsel Nancy M. Harnett, Of Counsel Seth E. Kramer, Of Counsel New York City Housing Authority 250 Broadway, 9th Floor New York, NY 10007 t: (212) 776-5206 f: (212) 776-5404 seth.kramer@nycha.nyc.gov Attorneys for Respondent-Appellant Completion date: July 31,2012 Reproduced on recycled paper TABLE OF CONTENTS PRELIMINARY STATEMENT ........................................................................... 1 ARGUMENT ....................................................................................................... 5 I. PETITIONER'S PURPORTED MITIGATING CIRCUMSTANCES DO NOT WARRANT A LESSER PENALTY .................................................................... 5 A. Petitioner's Purported Restitution Does Not Warrant a Lesser Penalty ...................................... 7 B. The Duration and History of Petitioner's Occupancy Do Not Warrant a Lesser Penalty ..................................................... 14 C. The Possible Adverse Consequences to Petitioner's Children Do Not Warrant a Lesser Penalty ..................................................... 19 D. The Speculation Petitioner's Household May Become Homeless Does Not Warrant a Lesser Penalty ..................................................... 22 II. A LESSER PENALTY IN THIS CASE DOES NOT AFFORD DETERRENCE ........................................ 24 III. A LESSER PENALTY WOULD NOT . PREVENT INJURY TO THE ADMINISTRATIVE AGENCY AND THE PUBLIC ......... : ........................................... 26 IV. THE HOUSING AUTHORITY COMPLIED WITH ITS TERMINATION-OF-TENANCY PROCEDURES .............. 28 CONCLUSION ........ ... ........................................... ...................... ........... ...... ... .. 32 1 TABLE OF AUTHORITIES PageCs) State Cases Ahsafv. Nyquist, 37 N.Y.2d 182 (1975) ................................................................ 28 Bland v. New York City Hous. Auth., 72 A.D.3d 528 (1st Dep't 2010) .............................................................................. 20 Cuevas v. Beacon Hous. Auth., 220 A.D.2d 179 (3d Dep't 1996) ............................................................................ 21 Davis v. New York City Dep't of Hous. Preserv. & Dev., 58 A.D.3d 418 (1st Dep't 2009) .............................................................................. 21 Dickerson v. Popolizio, 168 A.D.2d 336 (1st Dep't 1990) ..................................... 18 Featherstone v. Franco, 95 N.Y.2d 550 (2000) .......................................... 7,8,10,25 Gray v. Donovan, 58 A.D.3d 488 (1st Dep't 2009) ................................................ 19 Holiday v. Franco, 268 A.D.2d 138 (1 st Dep't 2000) ................................. 16, 18,21 James v. New York City Hous. Auth., 186 A.D.2d 498 (1stDep't 1992) ...................................................................... 13, 17 Johnson v. New York City Hous. Auth., 266 A.D.2d 102 (1st Dep't 1999) ................................................................ 17,18,22 Maldonado v. New York City Hous. Auth., 63 A.D.3d 568 (1st Dep't 2009) ........ ~ ..................................................................... 26 Martinez v. Franco, 272 A.D.2d 234 (1st Dep't 1997) ........................................... 17 McNeal v. Hernandez, 58 A.D.3d 417 (1st Dep't 2009) .......................................... 8 Milton v. Christian, 99 A.D.2d 984 pst Dep't 1984) ............................................. 17 11 Page(s) State Cases (continued) New York City Hous. Auth. v. Johnson, 148 Misc. 2d 385 (App. Term 1st Dep't 1990) ....................................................... 29 Pell v. Board ofEduc., 34 N.Y.2d 222 (1974) ................................................. passim Peoples v. New York City Hous. Auth., 281 A.D.2d 259 (1st Dep't 2001) ............................................................................ 16 Perry v. Popolizio, N.Y.L.J. Dec. 16, 1987, p. 11, col. 4 (Sup. Ct. N.Y.), aff'd, 146 A.D.2d 974 (1st Dep't 1989) ....................................... 24 Rodriguez v. New York City Hous. Auth., 51 A.D.3d 532 (1st Dep't 2008) ................................................ .. .............................. 8 Sanchez v. Popolizio, 156 A.D.2d 210 (1st Dep't 1989) ........................................ 11 Scott v. Peekskill Hous. Auth., 28 N.Y.2d 610, aff'g, 35 A.D.2d 554 (2d Dep't 1970) ......................................................... 11,20,21 , Smith v. New York City Hous. Auth., 40 A.D.3d 235 (1st Dep't 2007) ..................................................................... : .. 18,21 Spand v. Franco, 242 A.D.2d 210 (1st Dep't 1997) ......................................... 17,22 Stroman v. Franco, 253 A.D.2d 398 (1st Dep't 1998) ............................................ 21 Torres v. New York City Hous. Auth., 40 A.D.3d 328 (1st Dep't 2007) ................................................ .. ........................ 8,25 Turner v. Franco, 237 A.D.2d 225 (1st Dep't 1997) ......................................... 17,23 Vargas v. Franco, 238 A.D.2d 274 (1st Dep't 1997) .............................................. 18 Vazquez v. New York City Hous. Auth., 57 A.D.2d 360 (1st Dep't 2008) ........................................................................ 13,21 111 Page(s) State Cases (continued) Waterside Redev. Co. v. New York City Dep't ofHous. Pres. & Dev., 270 A.D.2d 87 (1st Dep't 2000) .............................................................................. 12 Williams v. Franco, 262 A.D.2d 45 (lst Dep't 1999) ....................................... 18,22 Williams v. Donovan, 60 A.D.3d 594 (lst Dep't 2009) ......... .. .............................. 18 Wise v. Morales, 85 A.D.3d 571 (lst Dep't 2011), Iv denied, 18 N.Y.3d 808 (2012) ........................................................................ 12,21 Wong v. Govemeur Gardens Hous. Corp., 308 A.D.2d 301 (lst Dep't 2003) ............................................................................ 12 Wooten v. Finkle, 285 A.D.2d 407 (lst Dep't 2001) .............................................. 22 Federal Statutes and Regulations 24 C.F.R. § 960.253 ................................................................................................. 27 24 C.F.R. § 960.257 ................................................................................................. 27 24 C.F.R. § 960.259 ................................................................................................. 27 24 C.F.R. § 966.4 ..................................................................................................... 26 31 U.S.C. § 3729 ........................................................... , ......................................... 25 42 U.S.C. § 1437 ..................................................................................................... 27 State Statutes and Regulations N.Y. Pub. Housing Law § 401 ............................................ .. .................................. 27 N.Y. State Finance Law § 189 ................................................................................ 25 IV PRELIMINARY STATEMENT Petitioner-Respondent Jacqueline Perez ("Petitioner") does not dispute she intentionally concealed $200,000 in employment income for six years and thereby effectively stole more than $27,000 in excess rental subsidy from the public fisc administered by the New York City Housing Authority ("Housing Authority"). At issue on this appeal is whether the termination of Petitioner's tenancy is excessive punishment for this misconduct. As the Housing Authority established and the trial court and dissent found, termination is appropriate where, as here, the tenant conceals a large amount of income over an extended period causing a substantial rent underpayment. Citing this Court's decision in Pell v. Board ofEduc., 34 N.Y.2d 222 (1974), the majority vacated the termination of Petitioner's tenancy as shockingly disproportionate to the offense based on Petitioner's purported mitigating circumstances. Under the Pell standard for judicial review of agency determinations, mitigating circumstances are at most one factor to consider. The other factors to consider include the prospect of deterring the offender and other individuals from repeat misconduct, societal standards on the sanction to be imposed, and the agency's responsibilities to the public to fulfill its mandate. Under Pell, mitigating factors playa role in cases not involving grave moral turpitude and grave injury to the agency or to the pUblic weal. Apparently for this reason, the majority and Petitioner.struggled to portray Petitioner's misconduct as a mistake and an indiscretion, with Petitioner providing the tortuous analysis she made the mistake of intentionally misrepresenting her income. The reality is for six years Petitioner never once answered yes to the simple question whether anyone in her household was employed. She admitted she knew the Housing Authority calculated her rent based on her household income, and she pled guilty to petit larceny, a crime of intent. In Pell, this Court cited larceny as an example of an offense society deems morally grave even if, unlike here, only small sums of money are involved. Consistent with its own procedures, the Housing Authority considered Petitioner's alleged mitigating circumstances, none of which had any causal connection to her concealment of income, and found they did not warrant a lesser penalty. The four purported mitigating circumstances Petitioner invokes do not justify disturbing the Housing Authority'S determination. First, Petitioner's payment of partial restitution over several years will never make the Housing Authority whole, has no deterrent effect on Petitioner or other tenants who would conceal their income to obtain a lower rent, and cannot cure her fraud as a matter of law. Second, Petitioner's tenancy record is not unblemished and not entitled to great weight. Petitioner's '17-year tenancy is marred by, among other things, six steady years of violating her basic obligation to report her income, a violation 2 which ceased only once the Housing Authority discovered Petitioner's fraud. In Pell, this Court explained the nature of the misconduct and the penalty imposed are entitled to more weight than a prior employment record, and upheld the New York City Transit Authority's dismissal of an employee who misappropriated $1.26 over 18 days in a fraudulent change-making scheme. Third, it is sheer speculation that if Petitioner moves, she will not be able to obtain assistance for her children's learning difficulties and other health issues, including the statutorily mandated assistance one of her sons allegedly receives. Petitioner herself did not report her children had disabilities in her annual recertification papers and, as the dissent noted, the disabilities she now asserts are not such severe disabling conditions so as to warrant a disposition other than termination. Fourth, it is also speculation Petitioner and her family will become homeless, especially when they have family living in the area. As the dissent correctly noted, viewing public housing as housing of last resort would result in no tenant of public housing ever being evicted, to the detriment of public housing residents and the many families in need of public housing who are willing to comply with basic tenant obligations. Petitioner does not seriously dispute deterrence is one of the goals of imposing an administrative penalty. She argues she and others will be deterred from future fraud because she will have to report her criminal conviction on future 3 job, employment, and housing applications. There is no deterrence for those residents who do not complete these applications. There is also no guarantee Petitioner, who failed to give accurate information to the Housing Authority, will report her criminal record on any applications she may submit to third parties. The Housing Authority cannot police applicants' truthfulness or the consequences of false reporting on the applications to third parties, which also undermines the reporting requirement's efficacy as a deterrent to concealing income from the Housing Authority. The legislature has charged the Housing Authority with providing decent, safe, affordable housing. As this Court stated in Pell, "it is the agency and not the courts which, before the public, must justify the integrity and efficiency of their operations." While one person's concealment of income, viewed in isolation, need not have agency-wide consequences, large-scale concealment of income resulting in significant underpayment of rent would have a devastating impact on the Housing Authority's ability to comply with its mandate, especially considering the ever dwindling limited resources made available for public housing. Because the Housing Authority reasonably acted within the scope of its powers, the majority erred in disturbing the Housing Authority's determination to substitute its preferred result of a mitigated penalty. 4 Finally, in her Petition, Petitioner asserted incorrect claims the Housing Authority had failed to afford her certain procedural protections, including an opportunity for an interview with development management. The majority recit~s these assertions without any analysis in its Order and Petitioner repeats them in her brief before this Court. The Housing Authority fully complied with its procedures in deciding to terminate Petitioner's tenancy. For each of these reasons as discussed more fully below, this Court should reverse the Order of the Appellate Division, First Department, and reinstate the trial court's judgment denying the petition and dismissing this Article 78 proceeding in its entirety. ARGUMENT POINT I PETITIONER'S PURPORTED MITIGATING CIRCUMSTANCES DO NOT WARRANT A LESSER PENALTY According to Petitioner, the Housing Authority contends it is inappropriate for courts to consider mitigating circumstances in assessing whether a penalty shocks the conscience. See Brief of Petitioner-Respondent ("Pet. Br.") at 30 ("Appellant's contention that consideration of such mitigating factors was inappropriate is contrary to well-settled law."); Pet. Br. at 34 (The Housing Authority "is flat-out wrong in its argument that the Appellate Division's 5 consideration of the impact of eviction on [Petitioner's] children as a mitigating factor was inappropriate."). Petitioner misconstrues the Housing Authority's position. Consistent with its procedures, the Housing Authority considered Petitioner's purported mitigating circumstances but rationally found they did not warrant a lesser penalty.] See Record on Appeal ("R") at 422 ("The plight of the family, especially with a disabled child, has been considered; however, this is an insufficiently mitigating circumstance."). In Pell, this Court stated: [c ]onsideration of the length of employment of the employee, the probability that a dismissal may leave the employee without any alternative livelihood, his loss of retirement benefits, and the effect upon his innocent family, all playa role, but only in cases where there is absent grave moral turpitude and grave injury to the agency involved or to the public weal. But deliberate, planned, unmitigated larceny .. . is not of that kind. Pell, 34 N.Y.2d at 235 (emphasis added). Accordingly, the Housing Authority gave greater consideration to Petitioner's alleged mitigating circumstances than this Court required of the agency employers in Pell. As discussed in the Housing Authority's initial brief, the majority's distortion of the record in analyzing Petitioner's purported mitigating circumstances demonstrates the majority inappropriately substituted its preferred The Housing Authority's Termination of Tenancy Procedures permit the tenant or her representative to make a general statement in mitigation about why her tenancy should not be terminated. See R 74 at ~ 6(f). 6 result for the Housing Authority's determination. None of Petitioner's purported mitigating circumstances justifies disturbing the Housing Authority's determination to terminate Petitioner's tenancy. "The question is not whether [the reviewing court] might have imposed another or different penalty, but whether the agency charged with ... responsibility reasonably acted within the scope of its power." Pell, 34 N.Y.2d at 238. The Housing Authority did so here. A. Petitioner's Purported Restitution Does"Not Warrant a Lesser Penalty Petitioner contends termination of tenancy is too harsh because in a few short years she will complete making full restitution to the Housing Authority in compliance with an agreement with the Housing Authority. See Pet. Br. at 2; see also Pet. Br. at 7-8, 22-29. Not a single part of this representation is supported by the record or accurate as a matter of law. First, the record contains no restitution agreement between the Housing Authority and Petitioner. The Housing Authority is not a party to the unexecuted confession of judgment in the criminal case brought by the People of the State of New York against Petitioner. See R 364. Petitioner waived her right to rely on the confession of judgment by failing to introduce it at her administrative hearing. See R 31 (trial court noting Petitioner did not introduce any documents at her administrative hearing); Featherstone v. Franco, 95 N.Y.2d 550, 554 (2000) (appellate review is limited to the record presented to the administrative agency); 7 Torres v. New York City Bous. Auth., 40 A.D.3d 328,330 (1st Dep't 2007) ("This Court has repeatedly rejected parties' attempts to raise issues on appeal where they neglected to raise those issues at an administrative hearing."). Petitioner claims prior to entering into her plea agreement with the State, she already had entered into an oral agreement with development management to make restitution payments. See Pet. Br. at 28 n.5. As discussed in the Bousing Authority's initial brief (see App. Br: at 30 n.2), P~titioner also waived this claim by failing to raise it at her administrative hearing.2 See Featherstone, 95 N.Y.2d at 554; Torres, 40 A.D.3d at 330. The majority erred in relying on this alleged oral agreement. See R 15 at n.l. Under any scenario, Petitioner did not "voluntarily" agree to pay restitution. As the dissent noted, Petitioner agreed to restitution as part of a plea agreement whereby the more serious criminal charges were 2 Petitioner claims the Housing Authority cannot refute she started to make payment immediately after the meeting at which she and management reached this oral restitution agreement. See Pet. Br. at 28 n.5. The Housing Authority had no obligation to refute in its Answer Petitioner's assertions impermissibly raised for the first time in her Petition. See McNeal v. Hernandez, 58 A.D.3d 417, 418 (Ist Dep't 2009) (refusing to consider petitioner's claims that were improperly raised for the first time in the Article 78 proceeding); Rodriguez v. New York City Hous. Auth., 51 A.D.3d 532,532 (Ist Dep't 2008) ("Petitioner's contention that respondents' determination was not supported by a rational basis because respondents relied on the occupancy standard set forth in the Housing Authority's Management Manual rather than its Applications Manual is unpreserved, as it i~ raised for the first time on appeal[.]"). Nevertheless, the Housing Authority can refute Petitioner's vague assertions. Petitioner never even specified when the purported meeting after which she allegedly immediately began making payments occurred other than the year 2006. See R 288-89 at ~ 21. The record shows Petitioner did not begin making payments until June 2007 (see R 366), long after the alleged meeting and after Petitioner's arrest in December 2006 (see R 85). Management's interview records, attached to the Answer, do not reference an oral agreement. See R 96-97. Petitioner does not explain how the Housing Authority's file should otherwise prove the nonexistence of an oral agreement. 8 withdrflwn, not to avoid termination of her tenancy. See R 22; see also R 85, 89- 90,92. By Petitioner's own account, she did not agree to make restitution until the Housing Authority discovered her fraud upon sending a fax to her employer asking if Petitioner was an employee. See R 288 at ~ 21. Second, as the dissent recognized, Petitioner is not making full restitution to the Housing Authority by ultimately repaying only $20,000 of the $27,000 she underpaid in rent. See R 20 ("In accordance with her plea agreement, Petitioner was required to repay only $20,000 of the more than $27,000 in rent that she avoided paying, which amounts to no penalty at all."). Contrary to Petitioner'~ representations, neither the testimony of Chief Investigator Christopher France ("France") of the Inspector General's Office ("IG") nor the unsigned confession of judgment establishes Petitioner owed the Housing Authority only $20,000. Cf. Pet. Br. at 27-28. France authenticated the schedule of rent calculation showing Petitioner owed $27,144. See R 133:2-17, 246. Police arrested Petitioner for defrauding the Housing Authority of that sum. See R 85 . Petitioner's counsel asked France ifhe knew, not how much Petitioner actually owed, but the amount in the confession of judgment in connection with the plea deal. See R 155:7-12. France responded he could not remember the figure off-hand, and ultimately respond~d to the question, "Does twenty thousand dollars sound approximate" by stating "Approximately, yeah." R 155:11-12. Even if Petitioner had not waived 9 her right to rely on the confession of judgment by failing to introduce it at her administrative hearing, that document only confirms the language of the plea agreement demonstrating Petitioner and the State resolved her criminal proceeding by agreeing to restitution of only $20,000. See R 364. The Housing Authority never stipulated $20,000 was the total amount by which Petitioner underpaid her rent; Petitioner resolved the criminal charges by "acknowledg[ing] indebtedness in the sum' of $20,000,,3 and agreeing to pay that sum. See id. Third, the majority erred in relying on Petitioner's claim she has faithfully made restitution payments and speculation she will continue to do so. Judicial review is limited to the record adduced before the agency and Petitioner's payment record and aspirations after the hearing and for years to come are beyond the record. See Featherstone, 95 N.Y.2d at 554 ("Moreover, for a court to consider evidentiary submissions as to circumstances after the Authority made its determination would violate another fundamental tenet of CPLR article 78 review - namely, that' [j]udicial review of administrative determinations is confined to the facts and record adduced before the agency."'); cf. R 15 (majority stating "From July 2007 through the present, petitioner has fully complied with the repayment Petitioner acknowledges the language of the confession of judgment does not establish the total amount when she adds the word "full" before the excerpt she quotes from that document. See Pet. Br. at 27 (Petitioner incorrectly states, "Indeed, in the Restitution Stipulation, Ms. Perez, the Assistant District Attorney and Ms. Dillard of the Housing Authority expressly agreed that Ms. Perez make monthly payments to cure her full 'indebtedness in the sum of $20,000 to the New York City Housing Authority. R. 364"') (emphasis added). 10 schedule set forth in the stipulation and [the Housing Authority] does not claim otherwise."); R -15 (majority stating "[Petitioner] h.as already repaid over $10,000 of the amount owed and in a few years restitution will be complete.") (footnote omitted); Pet. Br. at 22. Even if Petitioner's payment history and aspirations were part of the record, restitution does not preclude termination. In Scott v. Peekskill Hous. Auth., 28 N.Y.2d 610 (1971), aff'g, 35 A.D.2d 554 (2d Dep't 1970), this Court upheld an administrative determination to evict a tenant for chronic rent delinquency even though the Department of Social Services had agreed to furnish checks directly to the housing authority to pay the tenant's arrears and ongoing rent. See Scott, 35 A.D.2d at 555. Termination is equally if not more appropriate in this case, which involves intentional misrepresentation as opposed to chronic rent delinquency. In Sanchez , v. Popolizio, 156 A.D.2d 210 (1st Dep't 1989), the Appellate Division, First Department correctly cited the Pell standard requiring an administrative penalty shock one's sense of fairness to be set aside, and upheld the Housing Authority'S penalty of termination of a Section 8 rental subsidy based on the petitioner's fraudulent conduct. See Sanchez, 156 A.D.2d at 210. The court noted the Housing Authority was entitled to both recoupment of overpaid subsidies as well as termination of the subsidy. Sanchez therefore establishes termination is an 11 appropriate penalty for fraudulent conduct even where the tenant agrees to restitution. See id. at 210. As the Housing Authority showed in its initial brief, fraud cannot be cured. See Wong v. Gouverneur Gardens Hous. Corp.; 308 A.D.2d 301,305 (1st Dep't 2003) (obtaining possession of apartment by fraudulent means "is not a curable breach"); Waterside Redev. Co. v. New York City Dep't of Hous, Pres. & Dev.; 270 A.D.2d 87,88 (1st Dep't 2000) (under 28 RCNY 3-18(b), "a breach of the lease which involves fraud or illegality is not subject to an opportunity to cure"). Petitioner relies on Wise v. Morales, 85 A.D.3d 571 (1st Dep't 2011), Iv denied, 18 N. Y.3d 808 (2012), to dispute this appellate precedent. See Pet. Br. at 28-29. But Wise does not stand for the proposition fraud can be cured inasmuch as the Appellate Division held Petitioner "did not intentionally viol~te her obligations," "was functionally illiterate," "relied upon a housing assistant to complete the [recertification] form," and "was unaware that she had an obligation to report her income." Wise, 85 A.D.3d at 573. Here, Petitioner, an assistant bookkeeper, admitted she knew her rent was based on her employment income, which she intentionally failed to report.4 See R 159:18-23. This matter is also 4 Petitioner notes "she had always reported her income to the appropriate welfare agency and, accordingly, stopped receiving welfare payments." Pet. Br. at 10. This hardly advances Petitioner's cause. It confirms she was aware of her reporting obligations. It shows Petitioner had a motive not to report her employment income to the Housing Authority because she knew from personal experience she could lose a benefit, here in the form of rental subsidy, if she reported her employment income. 12 nothing like James v. New York City Hous. Auth., 186 A.D.2d 498 (1st Dep't 1992), on which the majority and Petitioner rely for the premise "the circumstances underlying the charge that [Petitioner] underreported her income no longer exist." Pet. Br. at 22; see Pet. Br. at 27; R 15-16. The James case did not involve fraud. J ames was a tenant who started a single fire and had since recovered from a substance abuse problem. See James, 186 A.D.2d at 500.5 Petitioner also argues the confession of judgment releases her from all liability, criminal or civil, once she makes full restitution. See Pet. Br. at 22. Petitioner is incorrect. As discussed above, she waived reliance on the confession of judgment by failing to submit it at the administrative hearing. The confession of judgment attached to the petition is not signed. See R 364. The Housing Authority is not a party to it and it does not purport to preclude the Housing Authority from pursuing administrative termination-of-tenancy charges against Petitioner. See id. The Housing Authority's own documents, including the lease and the affid~vit of income, state the Housing Authority may terminate the tenancy of a tenant who submits false information. See R 62 at ~ 7(a); R 69 at ~ 19; R 173, 181, 197, 209, 217., 225, 237. Finally, Petitioner has not made full restitution to trigger the confession of judgment's release even if it applied, which it does not. The other case on which Petitioner relies, Vazquez v. New York City Hous. Auth" 57 A.D. 3d 360 (1 st Dep't 2008), is also distinguishable because it involved unauthorized use of an ATM card and chronic rent delinquency. See id. at 361. 13 For each of these reasons, Petitioner's agreement to provide restitution does not warrant a lesser penalty. B. The Duration and History of Petitioner's Occupancy Do Not Warrant a Lesser Penalty Petitioner alleges termination of tenancy is shocking to the conscience because of her tenancy record. As this Court recognized in Pell, however, "it is becoming increasingly clear that the nature of the misconduct charged when weighed with the action taken, where such action is reasonably within the scope of the disciplining agency, must be accorded greater weight or recognition [than a prior good record.]" Pell, 34 N.Y.2d at 239. The' Pell court minimized the role of mitigating circumstances in cases involving "deliberate, planned, unmitigated larcency." Pell at 235. The Pell Court explained: There is also the element that the sanctions reflect the standards of society to be applied to the offense involved. Thus, for a single illustrative contrast, [an employee's] habitual lateness or carelessness, resulting in substantial monetary loss, . .. will not be as seriously treated as an offense as morally grave as larceny, bribery, sabotage, and the 'like, although only small sums of money may be involved. Id. at 234-35. Using these criteria, this Court upheld the dismissals of, among others, a Transit Authority employee who misappropriated $1.26 over 18 days in a fraudulent change-making scheme Cid. at 238-39); a Board of Education employee who was absent on seven occasions and falsely certified he was ill Cid. at 235); and 14 a Board of Education Senior Construction Inspector with 21 years of allegedly unblemished service who received unlawful gratuities (id. at 237-38). Petitioner's tenancy record in this case does not outweigh her intentional concealment of her employment and more than $200,000 in employment income over six years. Although Petitioner claims she has lived in public housing for more than 39 years, Petitioner is 39 years old and, therefore, was a minor for more than half of her occupancy. At the time of her hearing, Petitioner had been a leaseholder for approximately 17 years (see Pet. Br. at 4; R 54); six years into her tenancy she began misrepresenting her employment and employment income and she continued her fraud for six years until the Housing Authority discovered her employment on its own. This is hardly a stellar record. The duration of Petitioner's occupancy only underscores her familiarity with public housing, including that rent is based on household income. See Pet. Br. at 2,29-33; R 288 at ~ 18. Petitioner sets the bar low when she boasts that prior to her guilty plea to petit larceny, she had no criminal record. The majority erred in accepting Petitioner's claim she had an unblemished tenancy record (see R 11), not only because of her long-standing fraud but also because Petitioner failed to pay her rent 15 on time for certain periods and a police report charged Petitioner with menacing and harassment6 (see R 42 at ~ 11). Petitioner points to the testimony of France, who stated at the hearing he was not aware of any other complaints from tenants or management against Petitioner. See Pet. Br. at 8-9. France also testified, however, the scope of his role was to investigate the fraud complaint, he "stayed"within the confines of [his] investigation," and management would handle administrative matters. See R 152:7-10, 155:20-24, 156:1-10. There was no showing it was part of France's role as the investigator of Petitioner's misrepresentations to determine whether there were any prior complaints about her tenancy. See R 152:1-25. The cases Petitioner cites in which the courts found termination too harsh are inapposite. Many do not involve misrepresentation of income. In those cases, juxtaposed against a long tenancy is an isolated incident during a snapshot in time, whereas here Petitioner continuously concealed her income for more than half a decade. Compare Peoples v. New York City Hous. Auth., 281 A.D.2d 259,260 (1st Dep't 2001) (termination because tenant accosted inspector on one occasion after inspector refused to acknowledge apartment needed constant repair); Holiday v. Franco, 268 A.D.2d 138, 139, 143 (1st Dep't 2000) (termination for violation of 6 Petitioner criticizes the Housing Authority for not substantiating these allegations. See Pet. Br. at 31. However, the Housing Authority was merely responding to Petitioner's disingenuous statement there had not been any complaints about her tenancy. See R 288 at,-r 19 (alleging except for this action "not a single complaint has ever been alleged against [Petitioner] by any " " " Housing Manager"). 16 · agreement to exclude son from apartment where son was present in the apartment "on a single occasion and without petitioner's knowledge"); Johnson v. New York City Rous. Auth., 266 A.D.2d 102, 102 (lst Dep't 1999) (termination for violation of stipulation to exclude son from apartment where violation "arose from the isolated act of an emancipated son who does not reside with her"); Spand v. Franco, 242 A.D.2d 210, 211 (lst Dep't 1997) (termination for non-desirability where petitioner "was involved in Qne isolated incident"); Turner v. Franco, 237 A.D.2d 225, 255 (lst Dep't 1997) (termination for non-desirability where there was no evidence the tenant, who suffered from chronic schizophrenia, "committed any other nondesirable acts before or after [the] incident"); James, 186 A.D.2d at 500 (termination because tenant started fire but "[n]o other incidents involving the petitioner have been reported since the one iri 1985"); Milton v. Christian, 99 A.D.2d 984, 986 (1st Dep't 1984) (termination for verbal altercations that occurred "during an eight-month period when [petitioner] was undergoing an extremely stressful period in his life"), with R 102, 248-49 (sustaining charges of concealment of income from 1999 through 2005). Additionally, several of the cases Petitioner cites, including some of the cases cited above involving isolated incidents, involve misconduct by individuals other than the tenant of record whose tenancy is terminated. See Martinez v. Franco, 272 A.D.2d 234, 234 (lst Dep't 1997) (termination based on violation ofa 17 stipulation requiring the continued absence of daughter from apartment where "paucity of information" concerning daughter's prior conduct resulting in permanent exclusion agreement); Williams v. Franco, 262 A.D.2d 45,45 (lst Dep't 1999) (termination for violation of agreement to exclude daughter from apartment where "violation emanates from the acts of an emancipated child who does not reside with [the tenant],,); Holiday, 268 A.D.2d at 139, 143 (involving conduct of tenant's son); Johnson, 266 A.D.2d at 102 (same as Holiday); Vargas v. Franco, 238 A.D.2d 274, 275 (lst Dep't 1997) (same as Holiday); Dickerson v. Popolizio, 168 A.D.2d 336, 337 (1st Dep't 1990) (same as Holiday). In this case, termination is appropriate because Petitioner was the tenant and she repeatedly concealed her income on the affidavits of income she completed. See Smith v. New York City Hous. Auth., 40 A.D.3d 235,235 (lst Dep't 2007) (rejecting long- term tenancy as sufficient mitigating circumstance where termination resulted from the tenant's own misconduct in concealing her income.). Several of the cases on which Petitioner relies are also inapposite because there was no finding on how long the tenants concealed their income and no impact of the misconduct on the administrative agency. See Williams v; Donovan,7 60 A.D.3d 594, 595 (lst Dep't 2009) (no determination of the amount Petitioner incorrectly cites Williams as an example of a case in which the Court "vacated or remanded for a lesser penalty decisions of [the Housing Authority]." Pet. Br. at 30. The 18 of excess subsidy the petitioner received); Gray v. Donovan, 58 A.D.3d 488, 488 (1st Dep't 2009) (no indication of impact of tenant's failure to report income on her housing subsidy). Here, Petitioner misrepresented her income on each annual affidavit of income she completed over a six-year period resulting in her underpayment of rent by at least $20,000, and the Housing Authority provided evidence she concealed her income by more than $27,000. See R 88-92, 133:2-17, 246, 248-49. Accordingly, Petitioner's claim she has a lengthy tenancy with an unblemished record does not warrant a lesser penalty. C. The Possible Adverse Consequences to Petitioner's Children Do Not Warrant a Lesser Penalty Petitioner argues termination of tenancy is too harsh because of the consequences it may have for her children, particularly her allegedly disabled nine- year old son. See Pet. Br. at 2, 33-38. As the dissent correctly.noted, the conditions affecting Petitioner's children, including attention deficit hyperactivity disorder and dyslexia, "are not such severe disabling conditions as to render forfeiture of public housing accommodations a wholly disproportionate penalty." R 20-21. Petitioner herself repeatedly reported no one in her household had a disability when asked on her affidavits of income to "list all persons in your Housing Authority was not a party to this case and the New York City Department of Housing Preservation and Development ("HPD") issued the determination under review. 19 household with a disability." R 175, 183, 199,211,219,227, 238. Petitioner has not claimed her 23-year old adult daughter has a disability and she does not vigorously argue about possible adverse consequences for her 19-year old son. While Petitioner argues eviction may "possibly force him to live too far away to commute to [his current school]" (Pet. Br. at 36), she does not dispute a school report shows the school already is a long distance from her home, her son already has attendance problems, and he may fare better in a different school (see R 404). Petitioner's arguments about her nine-year old son are no more convincing. It is entirely speculative Petitioner's family may move too far away for him to go to the same school and medical providers. Even if that were the case, there are many other schools and hospitals in New York City. And regardless of whether he attends his current school, he still would have an individualized educational plan, which Petitioner herself describes as mandated by New York State. See Pet. Br. at 36. Appellate courts have upheld termination of tenancy even when it will result in the eviction ofa minor. In Scott, 28 N.Y.2d 610, this Court upheld termination of tenancy for chronic rent delinquency even th