Police Dep't V. Chan

1

Police Dep't v. Chan

OATH Index No. 197/08, mem. dec. (Aug.14, 2007)

Police Department is entitled to retain respondent’s vehicle pendingoutcome of civil forfeiture action. Respondent contested the stop and search of his vehicle and his risk to public safety but did not testify and provided no evidence to support his argument.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

MICHAEL CHAN

Respondent

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MEMORANDUM DECISION

ROBERTO VELEZ, Administrative Law Judge

Petitioner, the Police Department, brings 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 Michael Chan, is the 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), as amended December 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 in issue, a 1999Honda Civic (Voucher # B173405V), was seized by the Department on July 2, 2007 in connection with Mr. Chan’s arrest for criminal possession of a weapon in the fourth degree in violation of Penal Law section 265.01(1) and criminal possession of a weapon in the second degree in violation of Penal Law section 265.03(3) (Pet. Ex. 3). Following receipt of Mr. Chan’sdemand datedJuly 17, 2007, the Department scheduled a hearing for July 26, 2007. With consent of the Department, the proceeding was adjournedat respondent’s request because of his stated desire to obtain counsel. A hearing was rescheduled and held on August 9, 2007, at which Mr. Chanappeared without counsel andchallenged the Department’s right to retain the vehicle.

As set forth below, I conclude that the Department is entitled to retain the vehicle pending the civil forfeiture proceeding.

ANALYSIS

In the instant case, the Department seeks to sustain its retention of the seized vehicle as the instrumentality of a crime, not as evidence in a criminal case. 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 action for forfeiture of the vehicle; and (iii) that it is necessary that the vehicle remain impounded to ensure its availability for a judgment of forfeiture. Canavan, 1 N.Y.3d at 144-145, 770 N.Y.S.2d at 286; Krimstock Order at 3. 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.

The Department’s case consisted entirely of documentary evidence which I find to be reliable and credible. According to Police Officer Velez’s arrest report, on July 2, 2007, he pulled over respondent’s car after he passed through a red light at the intersection of Halsey Street and Wilson Avenue in Brooklyn (Pet. Ex. 4). When Officer Velez requested Mr. Chan’s paperwork regarding the vehicle, Mr. Chan opened his glove compartment to retrieve it and the officer noticed a pistol magazine in the glove compartment. After performing a subsequent search of the car, Officer Velez found a loaded, 9 mm semi-automatic pistol under the driver’s seat of the vehicle and accordingly placed Mr. Chan under arrest (Pet. Ex. 4).

With respect to the first element of the Krimstock Order, I find that the documentary evidence submitted by the Department is sufficient to establish probable cause for Mr. Chan’sarrest. Police Officer Velez directly observed respondent violate the Vehicle and Traffic law by running a red light, thus giving him proper basis to stop respondent’s vehicle. People v. Ingle, 36 N.Y.2d 413, 414, 369 N.Y.S.2d 67, 69 (1975); People v. Banks, 85 N.Y.2d 558, 626 N.Y.S.2d 986 (1995). The credible evidence showed that after stopping respondent’s vehicle, approaching, and demanding the vehicle’s registration, Officer Velez saw apistol magazine in respondent’s glove compartment. Because it was in plain view, he properly seized it, searched the vehicle, and after finding the firearm, placed Mr. Chan under arrest. See Police Dep't v. Rice, OATH Index No. 1709/05, mem. dec. at 6-7 (Apr. 21, 2005) (finding proper seizure where firearm was in plain view and probable cause for arrest upon discovery of firearm and drugs).

To establish the second element of the Krimstock Order, the Department must show that it is likely to prevail at a civil forfeiture proceeding. That is, petitioner must prove that the subject vehicle was “used as a means of committing crime or employed in aide or in furtherance of crime…” NYC Admin. Code § 14-140[e][1] (Lexis 2007). With respect to the second prong, I find the Department’s evidence established that Mr. Chan was in possession of an unregistered, loadedfirearm. Thismeets the Department’s burden for establishing the second prong of the KrimstockOrder that the Department is likely to prevail at a civil forfeiture proceeding because the vehicle was used as an instrumentality of the crime. See Rice, 1709/05, mem. dec. at 7-8 (possession of drugs and weapons in vehicle renders vehicle instrumentality of the crime of transporting drugs and weapons).

With respect to the first two prongs, Mr. Chan presented several arguments in an attempt to undermine the reliability of Department’s hearsay evidence. First, Mr. Chan disputed that the officers had probable cause to stop and search his car because he did not run a red light andthe officers could not have seen the magazine. Second, he argued that his gun is registered in Georgia. Finally, Mr. Chan argued that he never received notice of right to a retention hearing at the time of his arrest. However, each one of these arguments fail because Mr. Chan did not offer any evidence to corroborate his version of the events. For example, he could have called his passengers as witnesses to verify that he did not run a stop sign or he could have submitted proof of his Georgia gun registration. Most importantly, Mr. Chan could have testified under oath to attack the reliability of the Department’s evidence. But, he chose not to testify.

Therefore, I must draw an adverse inference against Mr. Chan and I must consider all statements he made as argument and not as evidence. Mr. Chan had the opportunity to challenge the Department’s evidence, but declined to do so. It is well established that a pending criminal case is not a constitutional bar to the conduct of a civil or administrative proceeding stemming from the same underlying facts or transaction. See Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551 (1976); Matter of Germaine B., 86 A.D.2d847, 447 N.Y.S.2d 448 (1st Dep't 1982); Mountain v. City of Schenectady, 89 A.D.2d 632, 453 N.Y.2d 93 (3d Dep't 1982); Dep't of Correction v. Dasque, OATH Index No. 1270/01, mem. dec. (July 26, 2001); Human Resources Admin. v. Rickenbacker-Miller, OATH Index No. 603/01 (Dec. 12, 2000). That is all the more true where, as here, Mr. Chanhad control over the timing of the hearing and initiated it by filing his demand for a hearing. He had the choice to either participate in the hearing or to remain silent at the risk that an adverse inference would be drawn and that his right to retain his vehicle pending a civil forfeiture action might be impaired. Baxter, 425 U.S. at 316-20, 96 S.Ct. at 1557-59; New York City Comm’r of Social Services on behalf of Jason C. v. Elminia E., 134 A.D.2d 501, 502, 521 N.Y.S.2d 283, 285 (2d Dep’t 1987). Furthermore, he was made well aware of this choice at various points before and throughout the hearing.

Since Mr. Chan elected to remain silent and not to challenge the Department’s evidence, it is appropriate to draw anadverse inference against him and take the evidence presented in the light mostfavorable to the Department, including all reasonable inferences to be drawn from suchevidence. Comm’r of Social Services v. Phillip DeG., 59 N.Y.2d 137, 463N.Y.S.2d 761 (1983). Drawing this inference strengthens the Department’s position that there was probable cause for the arrest and that it is likely to succeed in a subsequent forfeiture hearing. Police Dep’t v. Harris, OATH Index No. 983/06, mem. dec. (Feb. 16, 2006); Police Dep’t v. Chirico, OATH Index No. 2205/05, mem. dec. (June 28, 2005).

The third prong of the Krimstock Order may be satisfied by showing a heightened risk to public safety if the vehicle were to be returned. Police Dep’t v. Vanegas, OATH Index No. 1056/06, mem. dec. (Jan. 10, 2006); Police Dep’t v. McFarland, OATH IndexNo. 1124/04, mem. dec. (Feb. 24, 2004). Certain crimes are classified by the Penal Law as “Crimes against Public Safety” and are deemed to show a heightened risk by the circumstances of the crime itself. See, e.g., Police Dep't v. Harris, OATH Index No. 983/06, mem. dec. at 4 (Feb. 16, 2006) (respondent arrested for, among other charges, serious misdemeanors including the criminal possession of a firearm). Crimes involving the possession of a loaded firearm relate directly to these public safety concerns enumerated in the Penal Law and justify retention of a vehicle used as the instrumentality of such a crime. See Police Dep’t v. Van Rossum, OATH Index No. 2115/07, mem. dec. (June 12, 2007) (finding heightened risk to public safety where respondent was charged with possession of a loaded weapon); Police Dep’t v. Balseca, OATH Index No. 103/07, mem. dec. (July 25, 2006)(finding a heightened risk to public safety where respondent pled guilty to a felony firearm charge); Police Dep’t v. Cruz, OATH Index No. 1643/06, mem. dec. (Apr. 25, 2006) (retaining vehicle where respondent pled guilty to criminal possession of a loaded weapon in the fourth degree). Here, Mr. Chan is changed with criminal possession of a weapon in both the second and fourth degrees, establishing a heightened risk to public safety. I therefore find that the Department has demonstrated a risk to public safety if the vehicle is returned to respondent.

In his defense, Mr. Chan argued that he has no prior record, did not intend to sell his gun illegally, and is not a threat to society. He also stated that, in Georgia, he is generally permitted to carry an unloaded gun to and from the gun range. He argued that the weapon was left in his car from his last trip to Georgia. However these statements were not made under oath and it is equally appropriate to draw an adverse inference against him with respect to the third Krimstock prong and take the evidence presented in the light most favorable to the Department, including all reasonable inferences to be drawn from such evidence. Since no sworn statements were made to mitigate this risk, I find that the Department has met the third prong and the vehicle must not be returned to Mr. Chan.

ORDER

The Department is entitled to retain the seized vehicle.

Roberto Velez

Administrative Law Judge

August 14, 2007

APPEARANCES:

LAWRENCE SISTA, ESQ.

Attorney for Petitioner

MICHAEL CHAN

Respondent, pro se