IN RE: Connie SATTERWHITE (2005)

Determination of respondent New York City Housing Authority, dated April 8, 2004, which terminated petitioner's tenancy on the ground of nondesirability, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Herman Cahn, J.], entered on or about August 4, 2004) dismissed, without costs.

 The propriety of respondents' determination terminating petitioner's tenancy did not depend upon whether petitioner knew that drugs were being stored in and sold from her apartment (see Dept. of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 122 S.Ct. 1230, 152 L.Ed.2d 258 [2002] ).   In any event, the hearing officer's decision not to credit petitioner's averment of ignorance of her apartment's criminal use is entitled to deference (see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444, 522 N.Y.S.2d 478, 517 N.E.2d 193 [1987] ).   Respondent's determination is supported by substantial evidence, including, notably, the testimony of a police officer that he found a marijuana cigarette and two bags of marijuana in plain view in petitioner's living room, 69 rounds of .22 caliber ammunition in petitioner's dresser drawer, and 45 packets of heroin and 52 rocks of crack cocaine hidden in petitioner's apartment (see Matter of Woody v. Franco, 260 A.D.2d 186, 688 N.Y.S.2d 39 [1999], lv. denied 94 N.Y.2d 754, 701 N.Y.S.2d 340, 723 N.E.2d 89 [1999] ).

Petitioner's contention that the hearing officer was biased is not properly raised for the first time in her brief before this Court, and we decline to consider it (see Gregory v. Town of Cambria, 69 N.Y.2d 655, 657, 511 N.Y.S.2d 829, 503 N.E.2d 1366 [1986];  Matter of Fanelli v. New York City Conciliation & Appeals Bd., 90 A.D.2d 756, 455 N.Y.S.2d 814 [1982], affd. 58 N.Y.2d 952, 460 N.Y.S.2d 534, 447 N.E.2d 82 [1983] ).

Since the termination of petitioner's tenancy was based upon her own conduct, and not just that of her ex-boyfriend, respondent was not obliged to offer her probation, even though she presented evidence that the ex-boyfriend had permanently moved out of her apartment by the time of the hearing (see Matter of Walker v. Franco, 96 N.Y.2d 891, 892, 730 N.Y.S.2d 785, 756 N.E.2d 74 [2001];  cf. Matter of Stroman v. Franco, 253 A.D.2d 398, 676 N.Y.S.2d 591 [1998], lv. denied 93 N.Y.2d 817, 697 N.Y.S.2d 564, 719 N.E.2d 925 [1999] ).   While we recognize the hardship to petitioner and her two minor children, we do not find that the penalty of termination shocks the conscience (see e.g. Matter of Wooten v. Finkle, 285 A.D.2d 407, 408-409, 728 N.Y.S.2d 152 [2001];  Matter of Walker v. Franco, 275 A.D.2d 627, 628, 713 N.Y.S.2d 164 [2000], affd. 96 N.Y.2d 891, 730 N.Y.S.2d 785, 756 N.E.2d 74 [2001] ).