Opinion
10-10-2017
In the Matter of the Application of Larry TINSLEY, Petitioner, v. TAXI AND LIMOUSINE COMMISSION, Respondent.
Superior Law, PLLC, by James Scott Yoh, Esq., Flushing, for Petitioner. Corporation Counsel of the City of New York, by Sheryl Neufeld, Ave Maria Brennan, and Yungbi Jang, Esqs., New York, for Respondent.
Superior Law, PLLC, by James Scott Yoh, Esq., Flushing, for Petitioner.
Corporation Counsel of the City of New York, by Sheryl Neufeld, Ave Maria Brennan, and Yungbi Jang, Esqs., New York, for Respondent.
SALVATORE J. MODICA, J. The petitioner, Larry Tinsley ("Tinsley") filed a petition for an order directing the respondent New York City (the "City") Taxi and Limousine Commission ("TLC"), sued herein as "Taxi and Limousine Commission," to issue him a license to drive a taxi or a vehicle-for-hire. This petition brings up for review the decision of the Administrative Law Judge ("ALJ"), which denied the petition on behalf of the TLC. After analyzing the relevant law that governs this issue, the Court annuls the decision of the ALJ and remands this matter back to the ALJ respondent-agency to re-open the hearing in a manner not inconsistent with this decision. The re-opened hearing shall take place on a date to be agreed upon by the TLC, and the attorneys, but no later than November 21, 2017.
When the re-opened hearing is completed, the matter shall be returned to this Court for decision on the petition.
As an initial matter, this Court, sua sponte, corrects the caption to reflect the respondent as "New York City Taxi and Limousine Commission," instead of "Taxi and Limousine Commission." The Clerk is directed to make such changes on the Court's records.
The instant petition was marked "Fully Submitted" in October, 2016, when the petitioner was pro se and declined an opportunity to submit reply papers. In March, 2017, the Court accepted additional submissions from the respondent that corrected obviously incorrect dates on affidavits of service. Thereafter, attorney James Scott Yoh, Esq., of Superior Law, PLLC, contacted the Court advising of his intention to represent petitioner pro bono publico. In June, 2017, the Court accepted reply papers from Mr. Yoh on petitioner's behalf and sur-reply papers from the respondent, in light of the seriousness and importance of the issues presented.
This Court, moreover, cautions all counsel to avoid the pernicious or careless practice of sloppiness in the dating of litigation pleadings, affirmations, and documents. The Court, however, accepts the excuse proffered by the Assistant General Counsel in the Office of Legal Affairs of the New York City Taxi and Limousine Commission.
The petitioner, Larry Tinsley, who is 68 years of age and has spent much of his adult life in prison, applied for a license with the Taxi and Limousine Commission [Hereinafter, TLC] to operate a taxi or a vehicle-for-hire. A hearing was held in this matter, whereupon it was revealed that, in 1986, he had been convicted of armed robbery with a firearm, for which he was sentenced to 28 years. The hearing also revealed that he had several weapons' convictions in the 1970's, when he was either in his early to late twenties or early thirties. Finally, the hearing evidence also revealed that the 68–year old petitioner is destitute, documenting his papers with exhibits, and he lives only on a modest Social Security allowance. He is not computer literate and has no other skills needed for employment. The only means of livelihood he ever had before his troubles with the criminal justice system was in driving a taxi. Based on his rather extensive criminal record, his application for a TLC license was denied at the conclusion of the hearing. This Article 78 proceeding ensued.
Under the relevant law, as interpreted by the Court of Appeals, the petitioner was entitled to a full and fair opportunity to present evidence at the hearing. That denial was crucial in the context of this case. As noted in Matter of Acosta v. New York City Dept. of Education, 16 N.Y.3d 309, 921 N.Y.S.2d 633, 946 N.E.2d 731 (2011) :
As a general matter, it is unlawful in this state for any public or private employer to deny any license or employment application "by reason of the individual's having been previously convicted of one or more criminal offenses" ( Correction Law § 752 ; see Executive Law § 296[15] ). This general bar was enacted to further certain goals that the Legislature has identified as among the "general purposes" of the Penal Law, namely, "the rehabilitation of those convicted" and "the promotion of their successful and productive reentry and reintegration into society" ( Penal Law § 1.05[6] ). As
Governor Hugh L. Carey's memorandum approving the legislation that codified this general prohibition noted, "the key to reducing crime is a reduction in recidivism," and "[t]he great expense and time involved in successfully prosecuting and incarcerating the criminal offender is largely wasted if upon the individual's return to society his willingness to assume a law-abiding and productive role is frustrated by senseless discrimination" (Governor's Approval Mem., Bill Jacket, L. 1976, ch. 931, 1976 McGivney's Session Laws of N.Y., at 2459 ["Providing a former offender a fair opportunity for a job is a matter of basic human fairness, as well as one of the surest ways to reduce crime"] ).
There are, however, two significant exceptions to this general prohibition. The first exception arises where "there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual" ( Correction Law § 752[1] ). The Legislature has clarified that a " ‘[d]irect relationship’ means that the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license, opportunity, or job in question" ( Correction Law § 750[3] )....
... The second exception [is] where "the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public" ( Correction Law § 752[2] ).
Matter of Acosta v. New York City Dept. of Educ., 16 N.Y.3d 309, 314–315, 921 N.Y.S.2d 633, 946 N.E.2d 731 (2011).
The law against such discrimination was expressed in the recent opinion by Chief Judge Janet M. DiFiore in Griffin v. Sirva, Inc., 29 N.Y.3d 174, 54 N.Y.S.3d 360, 76 N.E.3d 1063 (2017). Chief Judge DiFiore, writing for the majority of the Court of Appeals, stated that, under New York State Human Rights Law section 296(15), discrimination against individuals with prior criminal convictions is prohibited. Human Rights Law section 296(15) provides, in pertinent part, that: " ‘[i]t shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to deny any license or employment to any individual by reason of his or her having been convicted of one or more criminal offenses ... when such denial is in violation of the provisions of article twenty-three—A of the correction law.’ " quoted in Griffin v. Sirva, Inc., 29 N.Y.3d at 181, 54 N.Y.S.3d 360, 76 N.E.3d 1063, supra. Chief Judge DiFiore further elaborated that "[A]rticle 23–A of the Correction Law ..., in turn, instructs that ‘[n]o application for any license or employment, and no employment or license held by an individual, to which the provisions of this article are applicable, shall be denied or acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses' ( Correction Law § 752 )." Griffin v. Sirva, Inc., 29 N.Y.3d at 182, 54 N.Y.S.3d 360, 76 N.E.3d 1063, supra.
New York State Human Rights Law section 296(15), prohibiting discrimination against individuals with at least one prior criminal conviction from obtaining employment or a license, is not absolute. Chief Judge DiFiore, however, stressed that "[t]wo exceptions to Article 23–A's prohibitions, set out in Correction Law § 752, further clarify the scope of the statute. The first exception applies when ‘there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual’ ( Correction Law § 752[1] )." Griffin v. Sirva, Inc., 29 N.Y.3d at 182–183, 54 N.Y.S.3d 360, 76 N.E.3d 1063, supra. The second applicable exception is "when ‘the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public’ ( Correction Law § 752 [2 ] )." Griffin v. Sirva, Inc., 29 N.Y.3d at 182–83, 54 N.Y.S.3d 360, 76 N.E.3d 1063, supra.
In determining, however, whether either or both of the exceptions applies, the ALJ is to consider, weigh, and balance the eight factors contained in Correction Law § 753[1]. See, Matter of Acosta v. New York City Dept. of Educ. supra, 16 N.Y.3d at 315–16, 921 N.Y.S.2d 633, 946 N.E.2d 731. In Griffin, the Court of Appeals held that in order to determine whether either or both exceptions applies, "the public agency or private employer " "shall consider ... eight factors" enumerated in Correction Law § 753[1] [emphasis in the original by the Court of Appeals). Griffin v. Sirva, Inc., 29 N.Y.3d at 182–183, 54 N.Y.S.3d 360, 76 N.E.3d 1063, supra. In that regard, this Court finds that the use of the word "shall" in Correction Law § 753[1] is a mandatory modifier, not a discretionary one. See, e.g., Matter of Syquia v. Board of Educ., 80 N.Y.2d 531, 591 N.Y.S.2d 996, 606 N.E.2d 1387 (1992). After an examination of the eight factors enumerated in Correction Law section 752, if it is determined that neither of the exceptions contained in Correction Law section 752 are applicable, then such prior conviction may not be used to deny an individual employment. In that respect, the petitioner is entitled to a full and fair opportunity to present evidence as to each factor. See, Matter of Acosta v. New York City Dept. of Educ., 16 N.Y.3d at 314–315, 921 N.Y.S.2d 633, 946 N.E.2d 731, supra.
The eight enumerated factors contained in Correction Law section 753[1] are as follows:
(a) The public policy of this state, as expressed in
this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.
(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
(d) The time which has elapsed since the occurrence of the criminal offense or offenses.
(e) The age of the person at the time of occurrence of the criminal offense or offenses.
(f) The seriousness of the offense or offenses.
(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.
N.Y. Correction Law § 753. See, e.g., Dellaporte v. New York City Dept. of Bldgs., 106 A.D.3d 446, 965 N.Y.S.2d 44 (1st Dept.2013) ; Formica Construction Inc. v. Mintz, 65 A.D.3d 686, 885 N.Y.S.2d 298 (2nd Dept.2009) ; Gallo v. New York State Office of Mental Retardation and Developmental Disabilities, 37 A.D.3d 984, 830 N.Y.S.2d 796 (3rd Dept.2007) ; Dudley v. City of N.Y., 56 Misc.3d 448, 50 N.Y.S.3d 856 (Sup.Ct. New York County 2017) (Jaffe, J.); Boone v. New York City Dept. of Educ., 53 Misc.3d 380, 38 N.Y.S.3d 711 (Sup.Ct. New York County 2016) (Moulton, J.); Weidig v. N.Y. City Transit Auth., 43 Misc.3d 1202(A), 2014 WL 1236788, 2014 N.Y. Slip Op. 50448(U) (Sup.Ct. Kings County 2014) ; Exum v. New York City Health and Hosps. Corp., 37 Misc.3d 1218(A), 2012 WL 5456393, 2012 N.Y. Slip Op. 52078(U) (Sup.Ct. Kings County 2012) (Velasquez, J.); Panessa v. LiMandri, 2011 WL 4193275, 2011 N.Y. Slip Op. 32365(U) (Sup.Ct. New York County 2011) (Jaffe, J.); Soto v. New York State Office of Mental Retardation and Developmental Disabilities, 26 Misc.3d 1215(A), 2010 WL 334857, 2010 N.Y. Slip Op. 50103(U) (Sup.Ct. Kings County 2010) ; accord, King v. New York State Div. of Parole, 190 A.D.2d 423, 598 N.Y.S.2d 245 (1st Dept.1993) (overturning the board's decision where "record clearly reveals that the denial of petitioner's [parole] application was a result of the Board's failure to weigh all of the relevant considerations").
The Court fully recognizes the legislative goal of protecting the public against a person who wishes to drive a taxi or a vehicle-for-hire and who has been convicted of a specific type of offense. At common law, railroad and subway conductors, bus operators, and drivers of taxis and other for-hire vehicles have an enormous responsibility. Their "duty springs from the contract to carry safely." Middleton v. Whitridge, 213 N.Y. 499, 510, 108 N.E. 192, 197 (1915). A fundamental public policy upholds the right of the City to screen drivers for the obvious safety of the public. "One purpose of licensing cabmen is to eliminate possible dangers to the public from riding in cabs driven by criminals. Accordingly, it is within the powers of the municipal licensing authority to refuse to grant a license to one previously convicted of a felony." 17 N.Y. Jur. 2d Carriers § 84 (footnote references omitted). Toward this policy of protecting the public, the New York City Council enacted provisions concerning the licensing of drivers of taxis and other vehicles for-hire. See, N.Y.C. Admin. Code sections 19–501 and 19–512.1(a).
The goal of rehabilitating prisoners, on the other hand, is worthwhile and laudable. The Appellate Division, Second Department stated: "[T]he public policy of the state is to encourage the licensing and employment of persons previously convicted of one or more criminal offenses." Levine v. N.Y.C. Taxi & Limousine Comm'n, 136 A.D.3d 1037, 1039, 26 N.Y.S.3d 180 (2nd Dept.2016). The court, in Miller v. D.C. Bd. of Appeals & Review, 294 A.2d 365, 370 (D.C.1972), stated: "[T]he Department's apparent policy of denying vendors' licenses to ex[-]convicts ... may frustrate entirely the legislative goal of vocational rehabilitation in our penal institutions. So, too, it may violate a general policy against unreasonable restrictions upon entrance into nonprofessional ‘common callings,’ such as street vending." One New York court, in Tanner v. De Sapio, 2 Misc.2d 130, 134, 150 N.Y.S.2d 640 (Sup.Ct. Cayuga County 1956), similarly, observed:
It would seem most inconsistent and improper to have one governmental department stress a vocational training in a correctional institution for convicts and have another governmental department deny the right to a reformed convict who has expiated her crime and paid her debt to society to enter upon such a vocation and become self-supporting after reformation and rehabilitation.
This administrative action is subject to mandamus to review and may not be disturbed unless the decision of the ALJ is, for example, arbitrary and capricious. See CPLR 7803(3) ; compare CPLR 7804 (g). In other words, it may be disturbed, in part, only if there is no rational basis for the exercise of discretion by the administrative agency. CPLR 7803 states that "[t]he only questions that may be raised in a proceeding under [Article 78] are" contained in four subsections. Insofar as this case in concerned, CPLR 7803(3) provides that "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" may be so raised. Pursuant to this section, a Court may not substitute its judgment unless the decision of the board or body was arbitrary and capricious and constituted an abuse of discretion. On this record, not only did the ALJ incorrectly note that Tinsley, in 1986, caused serious injury to another person, she, otherwise, failed fully to consult, weigh, balance, and weighed all of the eight factors in Correction Law section 753(1). Accordingly, the decision by the ALJ was arbitrary and capricious.
Briefly, the Court acknowledges that Correction Law section 752 makes it illegal in New York for a public or private employer to deny any license or employment application because the person desiring the employment or license has been previously been convicted of one or more criminal offenses. As noted, such license or employment may be denied when, as noted above, one of two exceptions, exist. Tinsley does not deny that both exceptions are applicable in the present case. As discussed in the City's answer, Tinsley was convicted of various felonious weapons possession charges during the 1970s. In 1986, he was again convicted of weapons possession and other crimes, and was sentenced, as a persistent felon, to a term of 28 years in prison, serving from 1986 to on or about 2014.
Assistant Corporation Counsel Jang, in respondent's opposition, discusses extensively Rules of the City of New York, title 35, chapter 55, governing "For–Hire Drivers." As Mr. Yoh correctly observes in petitioner's reply papers, the entire title quoted and discussed by respondent was repealed on September 22, 2016, effective October 22, 2016. The section was in effect when the petition was initially marked "Fully Submitted," but, as Mr. Yoh correctly notes, has been repealed.
The correct and current provision is found in New York City Administrative Code section 19–501, making express legislative findings and stating:
Legislative findings. It is hereby declared and found that the business of transporting passengers for hire by motor vehicle in the city of New York is affected with a public interest, is a vital and integral part of the transportation system of the city, and must therefore be supervised, regulated and controlled by the city.
New York City Administrative Code section 19–501 is, indeed, a codification of the well-settled and classic common law rule that the duty of a carrier is to carry safely. See, Middleton v. Whitridge, 213 N.Y. at 510, 108 N.E. 192, supra. So important is the responsibility of drivers of taxis and other vehicles for hire that the respondent TLC may "for good cause shown relating to a direct and substantial threat to the public health or safety and prior to giving notice and an opportunity for a hearing, suspend a taxicab, for-hire vehicle license or a HAIL license issued pursuant to this chapter and, after notice and an opportunity for a hearing, suspend or revoke such license." New York City Administrative Code section 19–512.1. The respondent TLC, even without engaging in an immediate suspension, subject to the due process guarantees, is further empowered by the codification "to seek suspension or revocation of such license and after notice and an opportunity for a hearing, suspend or revoke such license." Id.
Indeed, this section is a codification of the well-settled and classic common law rule that the duty of a carrier is to carry safely. See, Middleton v. Whitridge, 213 N.Y. at 510, 108 N.E. 192, supra. So important is the responsibility of drivers of taxis and other vehicles for hire that the respondent TLC may "for good cause shown relating to a direct and substantial threat to the public health or safety and prior to giving notice and an opportunity for a hearing, suspend a taxicab, for-hire vehicle license or a HAIL license issued pursuant to this chapter and, after notice and an opportunity for a hearing, suspend or revoke such license." New York City Administrative Code section 19–512.1. The respondent TLC, even without engaging in an immediate suspension, subject to the due process guarantees, is further empowered by the codification "to seek suspension or revocation of such license and after notice and an opportunity for a hearing, suspend or revoke such license." Id.
Given that both exceptions applied, the respondent-agency and the ALJ were required to consult, weigh, balance, and weigh the eight factors contained in Correction Law section 753(1). The Court finds that they did not fulfill that responsibility. There were documents that Tinsley wished the ALJ to consider. This request, however, was rejected. As noted above, in a case similar to the facts of this case, Chief Judge Jonathan Lippman, writing for the majority in Acosta, stated the general rule that "it is unlawful in this state for any public or private employer to deny any license or employment application ‘by reason of the individual's having been previously convicted of one or more criminal offenses' ( Correction Law § 752 ; see Executive Law § 296 [15 ] )." Acosta, 16 N.Y.3d at 314, 921 N.Y.S.2d 633, 946 N.E.2d 731. Two exceptions to the general rule need to be weighed. The first exception arises where: " ‘there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual’ ( Correction Law § 752[1] )." Acosta, 16 N.Y.3d at 315, 921 N.Y.S.2d 633, 946 N.E.2d 731. Under the first exception, a " ‘[d]irect relationship’ means that the nature of criminal conduct for which the person was convicted has a direct bearing on his fitness or ability to perform one or more of the duties or responsibilities necessarily related to the license, opportunity, or job in question' ( Correction Law § 750[3] )." The "direct relationship" exception was not at issue in the case. Acosta, 16 N.Y.3d at 315, 921 N.Y.S.2d 633, 946 N.E.2d 731. The focus of the decision was whether the petitioner came within the second exception of there being an "unreasonable risk ... to the safety or welfare of ... the general public.' ( Correction Law § 752[2] )." Acosta, 16 N.Y.3d at 315, 921 N.Y.S.2d 633, 946 N.E.2d 731.
Chief Judge Lippman, weighing each of the eight factors posited in Correction Law section 753(1), stated: "We conclude that the New York City Department of Education (DOE) failed to comply with the requirements of the Correction Law and thus acted arbitrarily in denying petitioner's application for security clearance." Acosta, 16 N.Y.3d at 314, 921 N.Y.S.2d 633, 946 N.E.2d 731. The Court of Appeals, in pertinent part, observed:
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.
Matter of Acosta v. New York City Department of Education, 16 N.Y.3d at 320, 921 N.Y.S.2d 633, 946 N.E.2d 731, supra.
Petitioner also requests that this Court consider the documents submitted to the ALJ by Tinsley in favor of the application that the ALJ completely ignored in her decision. In Matter of Acosta, 16 N.Y.3d 309, 921 N.Y.S.2d 633, 946 N.E.2d 731, supra, Chief Judge Lippman stated:
The Correction Law requires the DOE to "consider" "[a]ny information produced by the person, or produced on his [or her] behalf, in regard to his [or her] rehabilitation and good conduct" in determining whether the "unreasonable risk" exception applies to an application (
Correction Law § 753[1][g] ). Yet, on this record, it is plain that, other than her personal statement, the DOE did not consider the documentation that petitioner submitted in support of her application.
... [I]n light of the DOE's failure to comply with the statutorily mandated minimum requirement of reviewing all of the documentation petitioner submitted (see e.g. Correction Law § 753[1][g] ), it is difficult to conclude on this record that the "closer review" purportedly applied here amounted to anything more than a pro forma denial of petitioner's application on the basis of her prior criminal conviction. Such a denial, without consideration of each of the Correction Law § 753 factors, is precisely what the statute prohibits.
Acosta v. New York City Dep't of Educ., 16 N.Y.3d at 319–320, 921 N.Y.S.2d 633, 946 N.E.2d 731, supra.
Based on the foregoing, the Court finds that the decision of the ALJ was arbitrary and capricious and an abuse of discretion. See, CPLR 7803(3). First, in this case, the ALJ failed properly to apply, weigh, and balance the eight factors contained in Correction Law section 753(1). Significantly, the ALJ failed to consider documents offered by Tinsley that would have an affect on the balancing and weighing of such factors. In addition, the ALJ should be aware that any admissible evidence that goes to a weighing and balancing of the eight factors should be considered. For example, exception (a), to Correction Law section 753(1) provides that the public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses. Given that this factor must be considered, any evidence such as Tinsley has no other means of supporting himself must be taken into account. In addition, the safeguard provided in New York City Administrative Code section 19–512.1, as noted in this decision, advances the public policy of this state, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses. In other words, the hearing examiner should, within the confines of the rules of evidence, give Tinsley a fair degree of latitude in presenting his evidence.
Given the Court's conclusion that Tinsley was deprived of his right to present his case fully at the hearing, the Court orders this case returned to the ALJ, who is directed to re-open the hearing in a manner not inconsistent with this decision. The Court notes that, as a general rule, "[i]t is, of course, improper for courts to "engag[e] in essentially a re-weighing" of the Correction Law § 753 factors." See, Matter of Arrocha, 93 N.Y.2d 361, 367, 690 N.Y.S.2d 503, 712 N.E.2d 669 (1999), supra; see also, Acosta v. N.Y. City Dep't of Educ., 16 N.Y.3d at 318, 921 N.Y.S.2d 633, 946 N.E.2d 731, supra. The exception to this rule is where the hearing examiner or agency has failed to consider all eight of the factors. Id. at 318, 921 N.Y.S.2d 633, 946 N.E.2d 731. Here, the ALJ considered all of the factors; the ALJ committed error by not allowing evidence as to all eight factors. For this reason, the Court is not re-weighing the eight factors of Correction Law section 753. It is well-settled that "[t]he ‘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." Matter of Acosta, 16 N.Y.3d at 320, 921 N.Y.S.2d 633, 946 N.E.2d 731, supra; see also, Matter of Arrocha, 93 N.Y.2d at 364, 690 N.Y.S.2d 503, 712 N.E.2d 669, supra. Thus, the ALJ is directed to consider all the evidence in the case before applying the factors to the two exceptions of Correction Law sections 752[1] and 752[2].
In that respect, ALJs and hearing examiners should recognize that the Legislature and the Court of Appeals mandate hearings specifically to provide law offenders with a forum in which the opportunity is presented for them to justify the obtaining of employment that will make them self-supportive. Here, in the present case, competing with this vital public policy to protect the public is the duty "to carry safely," Middleton v. Whitridge, 213 N.Y. at 510, 108 N.E. 192, supra, is the State's interest in rehabilitating, whenever possible, formerly incarcerated individuals, reintegrating them both into society and to productive jobs, and showing them different and better opportunities than their past experiences and histories unfortunately permitted. See, Griffin v. Sirva, Inc., 29 N.Y.3d 174, 54 N.Y.S.3d 360, 76 N.E.3d 1063, supra; Matter of Acosta v. New York City Dept. Of Educ., 16 N.Y.3d at 314–315, 921 N.Y.S.2d 633, 946 N.E.2d 731, supra.
An Appellate Division decision that should be reviewed by the respondent on remand is Levine v. N.Y.C. Taxi and Limousine Comm'n, 2014 WL 6980206, 2014 N.Y. Slip Op. 33089(U) (Sup.Ct. Queens County 2014), rev'd, 136 A.D.3d 1037, 26 N.Y.S.3d 180 (2nd Dept.2016). There, the Second Department held that a denial of a application for a TLC license based on applicant's criminal record was neither arbitrary, capricious nor irrational. Mr. Yoh, petitioner's pro bono counsel, commendably cited this decision, alerting this Court's attention to what, at first glance, may seem adverse to petitioner. In Levine, a disbarred lawyer, who was convicted of stealing $432,000 from a client, and was sentenced to an indeterminate sentence of 3–9 years in 2008, and was paroled in 2011. In 2013, he applied for a TLC license. During the course of his fitness interview, the applicant blamed the client for his theft of the $432,000. At the conclusion of the hearing, the application of the disbarred lawyer to drive a vehicle for hire was denied.
Justice David Elliot, a widely respected and thoughtful jurist, granted the petition to overturn the TLC's determination. Levine, 2014 WL 6980206, 2014 N.Y. Slip Op. 33089(U), supra. The Second Department reversed, 136 A.D.3d 1037, 26 N.Y.S.3d 180, stating: "In this case, the petitioner's crimes were recent and serious, and bore a direct relationship to how he dealt with persons who hired him for services. Further, at his fitness interview, he minimized his culpability. Under the totality of circumstances, the determination under review was not arbitrary or capricious or irrational." Levine v. N.Y.C. Taxi & Limousine Comm'n, 136 A.D.3d 1037, 1039, 26 N.Y.S.3d 180, supra. Justice Elliot found that the applicant's lack of remorse for stealing $432,000 was "not one of the relevant factors to be considered by the Correction Law." 2014 WL 6980206, *4, 2014 N.Y. Slip Op. 33089(U). The Second Department, however, disagreed and reversed, finding fault with the applicant's attempts and efforts to minimize his culpability, and to deflect the blame upon the victim of his theft. 136 A.D.3d at 1039, 26 N.Y.S.3d 304.
The task before a tribunal on an application for employment is to apply and weigh the eight factors contained in Correction Law section 753(1). Correction Law section 753(1)(a) states to consider "[t]he public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses." Governor Andrew M. Cuomo, in this regard, on July 18, 2017, announced that New York is the first state in the nation to launch an employer pledge to hire more persons with criminal records and to help turn them into productive citizens, rather than to allow them to fall back into recidivism. The official launch of the "Work for Success Pledge," an online pledge in which businesses commit to consider hiring qualified individuals with criminal convictions, reflects New York's progressive public policy. The government web site articulating the "Work for Success Pledge" states:
Nearly 1 in 3 American adults have a criminal record, and there are 2.3 million individuals with a prior New York State criminal conviction. Currently, only 47% of people able to work on NYS parole are employed. While New York State law requires companies to consider hiring people with criminal convictions, many of these individuals, meet resistance and discrimination when trying to
reenter the workforce—one study found that, in New York City, a criminal record reduced the likelihood of a callback or job offer by nearly 50 percent. Governor Cuomo launched the Work for Success Pledge to encourage companies to hire those with previous criminal convictions and enable their smooth reentry after leaving prison.
See, https://www.governor.ny.gov/news/governor-Cuomo-launches-work-success-pledge-encourage-businesses-hire-qualified-individuals; accord, https://www.youtube.com/watch?v=VPA8SFk4dk8; Alexandra Semenova, "State implores businesses to hire ex-cons,"
The goal of rehabilitating prisoners, on the other hand, is worthwhile and laudable. The Appellate Division, Second Department stated: "[T]he public policy of the state is to encourage the licensing and employment of persons previously convicted of one or more criminal offenses." Levine v. N.Y.C. Taxi & Limousine Comm'n, 136 A.D.3d 1037, 1039, 26 N.Y.S.3d 180, supra. The court, in Miller v. D.C. Bd. of Appeals & Review, 294 A.2d 365, 370 (D.C.1972), stated: "[T]he Department's apparent policy of denying vendors' licenses to ex[-]convicts ... may frustrate entirely the legislative goal of vocational rehabilitation in our penal institutions. So, too, it may violate a general policy against unreasonable restrictions upon entrance into nonprofessional ‘common callings,’ such as street vending."
One New York court, in Tanner v. De Sapio, 2 Misc.2d 130, 134, 150 N.Y.S.2d 640 (Sup.Ct. Cayuga County 1956), similarly, observed:
It would seem most inconsistent and improper to have one governmental department stress a vocational training in a correctional institution for convicts and have another governmental department deny the right to a reformed convict who has expiated her crime and paid her debt to society to enter upon such a vocation and become self-supporting after reformation and rehabilitation.
This Court, therefore, grants the Article 78 petition, annuls the determination and decision of the ALJ, and remands the matter to the respondent agency to re-open the hearing in a manner not inconsistent with this opinion and order.
Sooner or later, the time will come, in the life of every individual, that a professed belief will be tested by some real circumstance that forces each of us either to make a choice or re-evaluate our avowed principles. The challenges posed in those situations, whether large or small, are actually dramatic. Those life tests make us confront our beliefs and values with a real situation. The thoughtful and provocative facts of the present proceeding, with real life consequences for both the petitioner and society, place this Court in such a challenging dilemma. Socrates once said, "Moral philosophy is hard thought about right action." In the present case, we all believe and salute the principle that the chief goal of incarceration is the rehabilitation of a convicted felon, and that productive employment makes recidivism less likely. Yet, even where the only work that the released former convict has had in his lifetime has been as a driver, should he be permitted, upon his re-entry into society, a license to drive a taxi or vehicle for hire?
Given, for instance, the length of time spent in jail by such person, that such license will no longer make this person destitute, and that the New York City Administrative Code has placed a secure safeguard over the decision granting a TLC license to a convicted felon ( N.Y.C. Administrative Code § 19–512.1 ), perhaps the answer can be yes.
Finally, this Court commends James Scott Yoh, Esq., for his diligent, resourceful, and vigorous pro bono representation of the indigent petitioner. New York lawyer and author Henry Waters Taft, Esq. (1859–1945), in his book Law Reform Papers and Addresses by a Practicing Lawyer (The MacMillan Co. pub. 1926) noted the hardship faced by the poor in getting justice. Henry W. Taft, brother of United States President and Supreme Court Chief Justice William Howard Taft, dedicated a chapter of his aforementioned work entirely to the subject of "Justice and the Poor." Id., chapter V, pp. 109–120. "Today, profit often overshadows other goals of legal practice." Howard A. Matalon, The Civil Indigent's Last Chance for Meaningful Access to the Federal Courts: The Inherent Power to Mandate Pro Bono Publico, 71 B.U.L.Rev. 545, 545 (1991). The Honorable Jonathan Lippman, while serving as Chief Judge of the New York Court of Appeals, in implementing a controversial and mandatory system of pro bono representation by the Bar, noted a wide schism in the United States between the type of superior legal representation available to the wealthy, while millions of poor persons are left to fend for themselves. See, "The Task Force to Expand Access to Civil Legal Services in New York: Report to the Chief Judge," Nov. 2012, found at https://www.nycourts.gov/accesstojusticecommission/PDF/CLS –TaskForceREPORT_Nov–2012.pdf.
"There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (Black, J.). In the instant proceeding, Mr. Yoh, who specializes in commercial litigation, generously donated his valuable time, talents, and efforts, in an area normally outside his practice, to help the destitute and elderly petitioner. Mr. Yoh's diligent, masterly, and superb contribution breathes life into the writings of Chief Judge Lippman and Mr. Taft, urging more attorneys to undertake pro bono publico representation of the poor. The duty of pro bono representation is what helps separate legal practice as a profession and calling, rather than a garden-variety, money-generating business.
The Court also expresses its sincere gratitude to its Principal Court Attorney, Howard Lloyd Wieder, Esq., for the amount of personal time and work he devoted in researching and drafting this decision.
Accordingly, the matter is remanded to respondent to re-open the hearing in a manner not inconsistent with this decision. After the ALJ files his or her decision, the Clerk of the Court shall refer the matter back to this Court so it may properly determine the petition.