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Police Dep't v. Wollmer

OATH Index No. 1806/07, mem. dec. (Apr. 24, 2007)

Petitioner entitled to retain vehicle where respondent driver,more likely than not, was beneficial owner of vehicle who permitted the use of the car in furtherance of a crime, unlawful possession of a loaded firearm by passenger he knew.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

RITA WOLLMER

Respondent

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MEMORANDUM DECISION

JOAN R. SALZMAN, Administrative Law Judge

Petitioner, the Police Department, brought this proceeding 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 Rita Wollmer is the registered owner of the seized vehicle (Pet. Ex. 6). It was undisputed that Louis Lopez was the driver of the vehicle at the time it was seized in connection with the arrest of his passenger. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041, 2005 U.S. Dist. Lexis 43845 (MBM), second amended order and judgment(S.D.N.Y. Dec. 6, 2005) (the “Krimstock Order”). 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 vehicle, a red 2006 Mercedes Benz (Voucher No. B131995), was seized on September 20, 2006 (Pet. Ex. 7), following the arrest of Mr. Lopez’ passenger, Luis Fermin, a/k/a Johandy Colon, on East 138th Street in the Bronxfor criminal possession of a loaded firearm under Penal Law sections 265.02 (a felony) and 265.01 (a misdemeanor)(Pet. Exs. 2, 3). The Department claims that the car was used as the instrumentality of the alleged crime, and that respondent Lopez, as the beneficial owner of the car, “permitted or suffered” the use of his car “asa means of committing crime” or “in aid or in furtherance of crime,” NYC Admin. Code § 14-140(e)(1) (Lexis 2007). Under theKrimstock Order, there is only one claimant in this proceeding, Ms. Wollmer, because, as the registered owner, she is given preference as claimant over Mr. Lopez, from whom the vehicle was seized. Krimstock Order ¶ 5. Criminal charges are pending only against Mr. Fermin.

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 action for forfeiture of the vehicle; and (iii) that it is necessary that the vehicle remain impounded to ensure its availability for a judgment in a civil forfeiture action. Canavan, 1 N.Y.3d at 144-46, 770 N.Y.S.2d at 286; Krimstock Order ¶ 2. In these administrative vehicle retention hearings, due process requires an “initial testing of the merits of the City’s case,” not “exhaustive evidentiary battles that might threaten to duplicate the eventual forfeiture hearing.” Krimstock, 306 F.3d at 69, 70.

At the close of the Department’s case, respondents’ counsel moved to dismiss this proceeding on the basis that the Department had failed to prove the elements of Krimstock by a preponderance of the evidence. I deferred decision on that oral motion until the completion of the hearing, and hereby deny the motion for the reasons set forth below.

ANALYSIS

With respect to the first prong of Krimstock, I find that the Department demonstrated probable cause for the arrest pursuant to which the vehicle was seized. The arresting officer, Latravio Wells, stated in the computerized arrest report:

At TPO while completing a car stop A/O did observe defts[1] pull up next to them at a steady red signal in the said vehicle. The car stereo was making excessive noise. A/O approached defts and did ask for license and reg. Driver & front passenger began to go under the car seat causing A/Os to fear for their safety. A/O pulled defts out of vehicle after several warnings. A/O did search under front passenger seat and did find handgunvoucher#N341746.
While trying to handcuff front passenger, passenger did refuse to comply by not placing his hands behind his back and flairing [sic] his arms. The gun is a Luger highpoint 9MM black in color. All defts. were in a reachable area of the firearm. Also the firearm was loaded.

(Pet. Ex. 2). In addition, in the Criminal Court complaint relating to Mr. Fermin, stipulated into evidence with appropriate redactions (Pet. Ex. 3), Officer Wells stated that:

. . . on or about September 20, 2006, at approximately 04:37 AM at N.E. C/O Exterior Street and E. 138 Street, County of the Bronx, State of New York . . . . all three defendants were acting in concert, in that Defendant [name redacted] was sitting in the back seat, that defendant [name redacted] was sitting behind the steering wheel, that defendant Fermin was sitting in the front passenger of a 2006 Mercedes CLK500 . . . . Deponent states that she observed defendants to have in their custody and control one (1) 9 mm Luger firearm and eight (8) 9mm live rounds (each round is a metal casing topped with a metal projectile) in that said firearm was inside a compartment underneath the front passenger seat and said rounds were inside the magazine which was inside said firearm.

Although respondents’ counsel challenged the Department’s showing of probable cause for the arrest, I find that the Department has satisfied the first prong through its showing of the basis for the stop and arrest and has proved the first prong of Krimstock by a preponderance of the evidence with the arrest and complaint records. Paragraph 2 of theKrimstock Order provides this tribunal “may consider such hearsay and other evidence as [the] judge may consider reliable.” The arrest and complaint records are routinely considered in these administrative hearings pursuant to that Order. See, e.g. Police Dep’t v. Pramanik, OATH Index No. 1751/07, mem. dec. (Apr. 10, 2007). I credit the specific, detailed, observations of the arresting officer and find that it is more likely than not that the officers had a reasonable basis to approach this loud, red, attention-getting new Mercedes at 4:37 a.m. because of the excessively loud car stereo. See People ex rel. Johnson v. N.Y.State Div. of Parole, 299 A.D.2d 832, 750 N.Y.S.2d 696 (4th Dep’t 2002), appeal denied, 99 N.Y.2d 508, 757 N.Y.S.2d 819 (2003) (police were entitled to approach vehicle on the basis of loud music emanating from the vehicle and to ask for identification papers); Police Dep’t v. Ellis, OATH Index No. 1550/07, mem. dec. (Mar. 14, 2007). Moreover, when Mr. Fermin reached under the passenger seat below him, the officers reasonably believed he had placed a weapon under the seat and were justified in searching the vehicle. People v. Carvey, 89 N.Y.2d 707, 657 N.Y.S.2d 879 (1997) (police officer’s observation of defendant passenger furtively placing something beneath his seat contributed to officer’s conclusion that a weapon was located in the vehicle and posed an actual, specific threat to officers’ safety); People v. James, 272 A.D.2d 75, 708 N.Y.S.2d 67 (1st Dep’t), appeal denied, 95 N.Y.2d 866, 715 N.Y.S.2d 221, on reconsideration, appeal denied, 95 N.Y.2d 965, 722 N.Y.S.2d482 (2000) (defendant reached under driver’s seat and search was lawful). Finally, probable cause for the arrest is not defeated because respondent was not charged with a crime in that there was probable cause for the arrest (of the passenger) that led to the seizure of this car. Under the Penal Law, “[t]he presence in an automobile, other than a stolen one . . . , of any firearm . . . is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon . . . is found . . . . ” Penal Law § 265.15(3) (Lexis 2007).

The principal dispute in this hearing was as to the second prong. I find that the same police records show that it is more likely than not that the Department will prevail in a civil forfeiture action and that the Department has disproved the “innocent owner” defense for purposes of this preliminary hearing. As noted in Pramanik, OATH 1751/07, mem. dec., at 5, the “innocent owner defense”can be raised wherethe vehicle owner is not present when the driver is arrested and the vehicle is seized. Ms. Wollmer was not present at the arrest of Mr. Fermin. The Department bears the burden of proving that respondent is not an innocent owner. See Property Clerk, New York City Police Dep’t v. Pagano, 170 A.D.2d 30, 573 N.Y.S.2d 658 (1st Dep’t 1991). The Administrative Code provides that anyone who used property to commit a crime “or permitted or suffered the same to be [so] used . . . shall not be deemed to be a lawful claimant to any such . . . property.” Admin. Code § 14-140(e)(1); see also Krimstock, 306 F.3d at 48, n.9. The courts have concluded that a statute that holds a person liable for having permitted or suffered a certain activity may be enforced only against one who “knew, or should have known,”that the illegal activity would take place. Pagano, 170 A.D.2d at 35, 573 N.Y.S.2d at 661. Even if Ms. Wollmer is an innocent owner, the Department is entitled to retain the vehicle if she is not the true owner -- that is, if Mr. Lopez is really the beneficial owner of the car and he is not an innocent owner. Police Dep’t v. Ellis, OATH Index No. 1550/07, mem. dec. (Mar. 14, 2007).

In Ellis, as here, the driver of a vehicle in which a loaded firearm was found was not facing criminal charges, and the registered owner-claimant was not involved in the alleged crime. This tribunal found that the registered owner, based on the weight of the evidence, held the car for the benefit of her son, who was not an innocent owner. OATH 1550/07, mem. dec. “Beneficial ownership or a possessory interest in a vehicle may be established by dominion and control over the vehicle.” Id., at 4, citing Vergari v. Kraisky, 120 A.D.2d 739, 502 N.Y.S.2d 788 (2d Dep’t 1986). Factors that have been used to evaluate whether a person other than the registered owner of the vehicle is its beneficial owner are: the name on the documents related to ownership, the person who bears the expense for the vehicle or for the insurance, the primary user of the vehicle, how consistently the person uses the vehicle and how many vehicles the person owns. Ellis, OATH 1550/07, at 4.

The Department called both Ms. Wollmer and Mr. Lopez to negate the innocent owner defense and to show that Mr. Lopez is the beneficial owner of the Mercedes. Although Ms. Wollmer is the registered owner of the car and was apparently making loan payments on the car until it was seized in September 2006(at which point her son’s signature appears on the payment vouchers), and although the insurance is recorded in her name (Resps. Exs. A-C), I find it more likely than not that she cannot pay for this vehicle, does not drive it, and that it is owned for the benefit of another, likely Mr. Lopez, the primary user of the vehicle. Ms. Wollmer admits that in return for use of the carwhenever he wants it, Mr. Lopez drives Ms. Wollmer to and from her appointments. She owns two other vehicles that became inoperable around the same time as the arrest in 2006, and, therefore, had other means of transportation. I find that Mr. Lopez has dominion and control over this Mercedes Benz, by respondent's own admission.

Ms. Wollmer, age 60,testified that she is a former meat wrapper, and is no longer working because of a disability she has had since 1998 -- restrictions on her peripheral vision. She lives on a modest, fixed income and rents her home in Astoria. Her testimony that she bought and pays for an $80,000, 2006red Mercedes Benz, though she could not even recall exactly when she bought this major luxury item and hesitated about the price, is implausible, particularly when considered against her own testimony as to her income and expenses. (“I really don’t know when I bought it.” “I’m not sure.”) There is no way, with the figures she supplied for her income and expenses, that she can afford this car on her own income alone. Even with the help she says she gets from her son to pay “to help cover bills and everything,” she can barely afford it. She had difficulty estimating the cost to put gas in it (“I don’t know, say about $100?, give or take, depending on how much the gas is”), as she prefers not to drive because of her eyes, and she has not driven the car since it was seized seven months ago. Ms. Wollmer testified that her monthly income and expenses are as follows:

IncomeExpenses

$1,195 disability income$940 car loan payment (now $1,000, Pet. Ex. C)

375 pension 656 rent

71 pension -- vested rights 100 gas (estimated)

1,000 cash from son @ $200-300/week 426car insurance for three vehicles

$2,641 Total $2,122 Total

Ms. Wollmer was not sure whether the auto insurance cost for all three vehicles she said she owns is $450 or $426 per month. She testified that she had two other vehicles registered to her, but that her son had an accident with her Cherokee on September 22, 2006, two days after the arrest that is the subject of this matter, and that her van “wasn’t runnable” and was impounded “because of tickets” sometime in 2006 before this incident. The car payments have recently increased to $1,000 per month (Resp. Ex. A). Based on her testimony, Ms. Wollmerthus has only about $459 or $519 per month with which to pay all her other bills, such as food and clothing and all other household expenses. Ms. Wollmer’s son Steven, age 37, who lives with her, does not appear to use the Mercedes as his own; Ms. Wollmer testified that her son drives her at times, but hegets to work on trains or buses and also gets rides from colleagues from his job.

Ms. Wollmer testified that while she can and did drive the Mercedes before it was seized, she prefers not to drive it because she would rather not have an accident if her eyes are bothering her. It appears that Ms. Wollmerdid noteven drive this car routinely; rather, she depended on her son, Mr. Lopez (her son's contemporary), and on a woman named Sandra,who is a friend of hers, to drive her as needed to medical appointments, to stores and on errands. She gets around usually by walking. She testified that the Mercedes is parked outside her house in Astoria, Queens. Mr. Lopez and Ms. Wollmer’s son are friends and she is also friendly with Mr. Lopez’ mother. The mothers met through their sons. Mr. Lopez lives in Brooklyn and supposedly comes to her house to use the car, according to both witnesses. She testified that Mr. Lopez uses the car on a regular basis, two or three times a week to help her at a minimum, and that one of the “perks” he gets for driving her around is that he can use it “whenever he wants,” if, for example he wants to go out. There was no evidence that Mr. Lopez has a criminal record. Although I found the story of how and when and for whom this car was purchased highly implausible, there is little or no basis in the limited record before me to say that Ms. Wollmer actually knew that Mr. Lopez would use or allow the car to be used as an instrumentality of a crime. She denied knowing or ever having met Mr. Fermin, and denied knowing that when Mr. Lopez used the car on September 19th-20th, he would allow it to be used to transport a loaded gun. Shealso denied knowing that Mr. Lopez was going to drive it to a strip club, as he did that night. Whether she should have known how Mr. Lopez used the car, based on the implausible testimony of both witnesses about the peculiar circumstances surrounding the purchase and use of this car, is a different question, one that I need not resolve at this juncture.

Even if Ms. Wollmer is an innocent owner, a legal point as to which there remains some doubt on the record of this preliminary hearing, the Department is still likely to prevail at a forfeiture hearing because Mr. Lopez is, more likely than not, the beneficial owner of the car. In Vergari v. Kraisky, 120 A.D.2d 739, 502 N.Y.S.2d 788(2d Dep’t 1986), a son was arrested for selling cocaine to a police officer while in a car registered to his father. The court held that, “[a] certificate of title is prima facie evidence of ownership, but it is not conclusive proof of ownership and it may be rebutted.” Kraisky, 120 A.D.2d at 740, 502 N.Y.S.2d at 789 (citations omitted). It was determined that the evidence demonstrated a possessory interest on the part of the son due to his dominion and control over the vehicle. The court concluded that: “Since the evidence shows [the son] was the actual owner of the car, his father’s knowledge of the car’s use is not relevant.” Kraisky, 120 A.D.2d at 740, 502 N.Y.S.2d 789-90. Following this reasoning, if it is determined that Mr. Lopez was the beneficial owner of the car, then Ms. Wollmer’s knowledge, if any,with respect to the car’s use for transporting a loaded firearm becomes irrelevant. See Police Dep’t v. Bloise, OATH Index No. 2138/04, mem. dec. (June 17, 2004) (although respondent/father was the registered and titled owner of the vehicle, the evidence showed that the son was the beneficial owner as the car had been modified for his use in high-speed, performance driving). See also Police Dep't v. Washington, OATH Index No. 1525/07, mem dec. (Mar. 30, 2007) (respondent owned vehicle for benefit of her son, who regularly drove it), Police Dep’t v. Small, OATH Index No. 1556/07, mem. dec. (Mar. 26, 2007) (son was beneficial owner based on proof of usage and maintenance);Police Dep’t v. Bacon, OATH Index No. 551/06, mem. dec. (Oct. 19, 2005) (where driver was making loan payments on vehicle, driver was a beneficial owner).