-5-

Police Dep’t v. Alickaj

OATH Index No. 221/06 (Aug. 3, 2005)

Police Department is entitled to retain respondent’s vehicle pending outcome of civil forfeiture action.

______

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

SHKUMBIN ALICKAJ

Respondents

______

MEMORANDUM DECISION

FAYE LEWIS, Administrative Law Judge

Petitioner, the Police Department (“Department”), brought this action to determine its right to retain a vehicle seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. Respondent Shkumbin Alickaj is the titled and registered owner of the seized vehicle. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), amended order and judgment (S.D.N.Y. Jan. 22, 2004) (the “Krimstock Order”), as amended December 23, 2004. See generally Krimstock v. Kelly, 306 F. 3d 40 (2d Cir. 2002), cert. denied sub nom. Kelly v. Krimstock, 539 U.S. 969 (2003); County of Nassau v. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003).

The Department seized the vehicle, a 2003 Nissan Altima, property clerk voucher number B010649V, on February 2, 2005, in connection with Mr. Alickaj’s arrest for criminal possession of a weapon in the third degree and menacing in the second degree. The Department received respondent’s demand for a hearing on July 19, 2005 (Pet. Ex. 1 - “notice of right to a retention hearing”) and scheduled a hearing for August 1, 2005.

At the hearing, respondent asserted that petitioner had failed to timely notice the hearing. The Department is required under the terms of the Krimstock Order to schedule a hearing within ten business days after receipt of a written demand for a hearing. Respondent asserts that he had first requested a hearing from the Department by faxed letter dated June 20, 2005, more than a month before the actual hearing date.

In support, respondent references a letter written by his counsel, Mr. Megaro, dated June 20, 2005, and attachments thereto (Resp. Ex. A). The letter contains a handwritten notation, indicating “Faxed/mailed 6/20/05” and the initials, “PMM.” Mr. Megaro represented that these were his initials and his handwriting, and that he had faxed the letter and attachments to the Department on June 20, 2005. The last page of the package contains a facsimile transmission sheet, indicating that the fax was sent by Mr. Megaro to “NYPD Civil Enforcement,” at a fax number which petitioner agreed was its own, and which is the fax number provided on the OATH intake sheet by the petitioner (ALJ Ex. 1). The last page also contains a transmission verification report indicating that seven pages were successfully faxed to that fax number. In his letter, Mr. Megaro stated that, over a week previously, his client had presented the Civil Enforcement Unit with the District Attorney’s Property Release (dated June 9, 2005) for the vehicle, and that, “[i]n that time, they have not been served with any papers indicated [sic] that the NYPD is instituting any civil forfeiture action.” The letter continued, “If there will be a civil forfeiture action, I am hereby requesting that a Krimstock hearing be held as soon as possible. If not, please release the car to my clients immediately.” Attached to the letter were various documents, including the certificate of title, insurance identification card, property clerk’s invoice, and the Property Release.

Counsel for petitioner, Ms. Arenson, represented that she had not received Mr. Megaro’s letter and attachments prior to the hearing, that the papers had not been in the file, and had not been brought to her attention. She could not explain why that was the case. She indicated that the file contained a notation with an intake date of June 10, 2005, which was the date following the District Attorney’s release of the vehicle, and that a “courtesy copy” of the “notice of right to retention hearing” was then mailed by her office to the respondent.[1]

The narrow issue presented is whether the Department was required to schedule this case for hearing within ten days of receipt of Mr. Megaro’s letter requesting a hearing. The Krimstock Order, as noted above, specifies that a hearing is to be commenced not more than 10 business days after receipt of “a written demand for a hearing on the form to be provided by the Police Department.” Krimstock Order, at 3. As this tribunal has noted, the “order does not provide for any other form of demand for a hearing.” Police Dep’t v. Bruno, OATH Index No. 304/04, mem. dec. at 6 (Apr. 8, 2004). We have recently concluded that an attorney’s letter, sent by fax, but without the form required by the Order, does not trigger the Krimstock timeframes. Police Dep’t v. Williamson, OATH Index No. 1371/05, mem. dec. at 3 (Mar. 8, 2005).

Moreover, as noted in Police Dep’t v. Rice, OATH Index No. 1709/05, mem. dec. at 5 (Apr. 21, 2005), the prescribed form explicitly provides that it is to be mailed to the attention of the Vehicle Seizure Unit, so that it will not be misdirected. Mr. Megaro’s letter, although apparently faxed to the correct fax number, was addressed only to “NYPD Civil Enforcement,” not specifically to the Vehicle Seizure Unit, which may explain why it was not forwarded to the attorney handling the case.[2]

For these reasons, I conclude that the Department’s receipt of Mr. Megaro’s letter did not commence the ten business day period within which a hearing must be scheduled. I conclude that the Department timely noticed the hearing based on its receipt of the form demand, entitled “notice of right to a retention hearing.”

ANALYSIS

The Department seeks to sustain its retention of the seized vehicle as the instrumentality of a crime. Therefore, the Department bears the burden of proving three points by a preponderance of the evidence: (i) that probable cause existed for the arrest pursuant to which the vehicle was seized; (ii) that it is likely that the Department will prevail in a civil forfeiture action regarding the vehicle; and (iii) that it is necessary that the vehicle remain impounded, either to protect the public safety from further illegal use of the vehicle or to ensure its availability for a judgment of forfeiture. County of Nassau v. Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286; Krimstock Order, at 3; Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. at 2-3 (Feb. 24, 2004).

The Department’s evidence showed that the respondent was arrested after a complainant alleged that the respondent had menaced him and threatened to shoot him if he did not “shut up”. The vehicle was then stopped, and the car, upon consent, was searched, after which a loaded .25 caliber semi-automatic pistol was recovered from under the driver’s seat (Pet. Exs. 2, 3, 7). According to the arresting officer’s signed statement in the criminal court complaint, respondent admitted that the gun was his and that he had carried it with him that day, although he indicated that he had done so because he was “scared” because he had been beaten by four men demanding money on the street a few days earlier (Pet. Ex. 7). Respondent was charged in a criminal court complaint with menacing in the second degree, criminal possession of a weapon in the second, third, and fourth degrees, and possession of ammunition. This evidence satisfied the first prong, probable cause for the arrest, as well as the second prong, likelihood of success in a civil action for forefeiture, because the preponderance of the evidence demonstrated that respondent committed a crime and that the seized vehicle was an instrumentality of a crime. Along these lines, it should be noted that the criminal possession of a weapon in the third and fourth degrees does not require a showing that the defendant intended to use a loaded firearm.

The remaining issue is the necessity to retain the vehicle pending outcome of the civil forfeiture action. We have shown that this prong is satisfied by the showing of a heightened risk to public safety if the vehicle were to be returned. See Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. at 2, citing County of Nassau v. Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S. 2d at 285-86. The criminal offenses for which respondent was arrested involve “serious felony offenses, including crimes, such as his alleged criminal possession of a loaded firearm, which are classified by the Penal Law as ‘Offenses against Public Safety.’” Police Dep’t v. Rice, OATH Index No. 1709/05, mem. dec. at 8 (Apr. 21, 2005)

In addition, respondent is charged with threatening to shoot someone with this loaded firearm. Although respondent told the arresting officer that he only carried a gun because he had been assaulted four days previously, he did not testify at trial, and therefore his statement is of little weight, especially when viewed in the context of the complainant’s statement that the respondent had threatened to shoot him with the gun. Accordingly, I am satisfied that petitioner has demonstrated a heightened risk to public safety, which requires retention of the vehicle pending the forfeiture action.

ORDER

I find that the petitioner proved its right to retain respondent’s vehicle pending the forfeiture hearing.

Faye Lewis

Administrative Law Judge

August 3, 2005

APPEARANCES:

ALLISON ARENSON, ESQ.

Attorney for Petitioner

PATRICK MEGARO, ESQ.

Attorney for Respondent

[1] Counsel for respondent asserted that his client did not receive the “notice of right to a retention hearing” form until July 13, 2005, but that statement, which was not testimony, and which relayed, presumably, upon information provided by his client, was of little probative value.

[2] Ms. Arenson represented that had she seen this letter, she would have telephoned Mr. Megaro and advised him that respondent needed to mail in the prescribed form in order for a hearing to be scheduled.