# Perez v. New York State Human Rights Appeal Board

> Appellate Division of the Supreme Court of the State of New York · December 6, 1979 · 71 A.D.2d 150

URL: https://www.frixlaw.com/law-library/cases/5834963

## Case

- **Full name:** In the Matter of Edward P. Perez v. New York State Human Rights Appeal Board
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** December 6, 1979
- **Citations:** 71 A.D.2d 150; 422 N.Y.S.2d 767; 21 Empl. Prac. Dec. (CCH) 30,503; 1979 N.Y. App. Div. LEXIS 13241
- **Precedential status:** Published
- **Opinion:** Concurrence by Herlihy
- **Judges:** Herlihy, Sweeney
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5834963

## Opinion text

Herlihy, J. (concurring).
The issue is not necessarily the inclusion or exclusion of youthful offenders from the class of convicts entitled to the benefits of the Human Rights Law.
It is apparent that subdivision 15 of section 296 was added to the Human Rights Law to provide a forum and/or mechanism for the enforcement of the rights and privileges conferred on persons convicted of criminal offenses by article 23-A of the Correction Law enacted at the same time as the said subdivision 15. (See L 1976, ch 931, §§ 5, 6; cf. Correction Law, § 755.) In the case of discrimination by public employers the unqualified provisions of subdivision 15 would be in addition to the right to bring a judicial proceeding.
It is quite certain that article 23-A of the Correction Law does not have any application to youthful offenders and was not intended to give them any rights. (Correction Law, § 751; see, also, People v Doe, 52 Mise 2d 656.)
While the present case can be viewed as presenting a sympathetic appeal for the prevention of discrimination against persons such as the petitioner, the inadequacy, if any, of the provisions of CPL 720.35 to fully place the youthful offender in a noncriminal status with society is for the Legislature. It seems necessary to conclude that the Legislature did not intend to include youthful offenders within the protection of the Human Rights Law when one considers that it failed to *153 include them within the definition of a person in whose favor a civil action or proceeding is terminated pursuant to CPL 160.50 and a new subdivision 14 of section 296 of the Executive Law added by chapter 877 of the Laws of 1976.
In determining whether an applicant for a "sensitive position” is qualified, "moral fitness” is a significant standard and to this extent one should not be able to hide behind his youthful offender status. (See Matter of Cacchioli v Hoberman, 31 NY2d 287, 293 ; Matter of Bell v Codd, 57 AD2d 814, 815; Davis v State of New York, 54 AD2d 126, 130 .)
The cause of action and/or right to relief created by the Human Rights Law to avoid discrimination is statutory in nature and unknown to the common law of the State. It is my opinion that although the statute is to be construed liberally, it should not be extended to classes of persons not clearly intended to be included either expressly or implicitly. The administrative interpretation of the statute by the agencies herein is not irrational or contrary to the express intent of the statute and should be affirmed.
Mahoney, P. J., Kane and Staley, Jr., JJ., concur with Sweeney, J.; Herlihy, J., concurs in a separate opinion.
Determination confirmed, and petition dismissed, without costs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5834963. Public record. Not legal advice.