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Police Dep’t v. Strunk

OATH Index No. 1705/09, mem. dec. (Dec. 19, 2008)

Vehicle was seized as the instrumentality of a crime in connection with passenger’s arrest for prostitution. Petitioner failed to establish that retention of respondent’s vehicle is necessary to protect public safety. Vehicle ordered released.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

KERRY STRUNK

Respondent

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MEMORANDUM DECISION

KARA J. MILLER,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, Kerry Strunk, the titled and registered owner, was present when the vehicle was seized. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (HB), third amended order and judgment (S.D.N.Y. Sept. 27, 2007) (“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 1996 Ford Explorer, voucher number B180306, was seized by the Department on November 7, 2008, in connection with the arrest of Stephanie Turcotte, a passenger in the vehicle, for prostitution in violation of Penal Law section 230.00, a class B misdemeanor (Pet. Exs. 1, 2, 3, 4, 7, 8). Following receipt of respondent’s demand for a hearing on November 26, 2008, the Department scheduled a hearing for December 8, 2008, at 9:30 a.m. (Pet. Exs. 4, 7). On December 8, 2008, respondent requested an adjournment of the hearing so that her attorney could further prepare. The trial was adjourned to December 15, 2008, at 2:00 p.m., at which time respondent appeared with counsel. The record was held open for petitioner to submit a copy of the signed criminal court complaint relating to Ms. Turcotte’s arrest. Petitioner instead submitted a copy of the prostitution supporting deposition, upon which the criminal court complaint was based, and the record was closed on December 18, 2008.

For the reasons set forth below, I conclude that the Department is not entitled to retain the vehicle and order that the vehicle be released.

ANALYSIS

Petitioner seeks to retain custody of the subject vehicle as the instrumentality of a crime. Under the Krimstock Order, petitioner 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 petitioner will prevail in a civil action for the forfeiture of the vehicle; and (iii) that it is necessary that the vehicle remain impounded pending final judgment in the forfeiture action. Krimstock Order ¶ 3; Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286. Here, 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.

Petitioner presented documentary evidence and called respondent to testify. Respondent presented the testimony of Ms. Turcotte.

Respondent described herself as a “working girl.” She stated that she has known Turcotte, who is also a “working girl,” socially for many years. On the night her car was seized, respondent, Turcotte, and another friend, Jessica, met in Queens to go to a nightclub located on the west side of Manhattan. Because respondent was tired, Jessica drove respondent’s car while respondent slept in the back. Respondent testified that she had just woken up and gotten out of her car to have a cigarette when police officers surrounded the car. Respondent was not arrested.

Turcotte,who is now 27, testified that she has been a prostitute since she was 18. She lives in Pennsylvania but does not drive or have a driver’s license. She testified that on the night she was arrested, she, respondent, and Jessica, who was driving respondent’s car, were going to a nightclub. On the way, they stopped at a deli on 28th Street and Lexington Avenue in order for Turcotte to get coffee. On the way back to the car from the deli, Turcotte saw a man walking down the street. Turcotte thought she could possibly make some extra money, so she handed him her business card, which contained her phone number, and told him that she did not want to talk to him on the street. According to Turcotte, he walked off around the street corner. The man subsequently called Turcotte, who was still standing outside the car, about one or two minutes later. Turcotte told him to meet her at a nearby hotel, but did not say anything about the price. The man came back around the corner and towards Turcotte. Turcotte began walking towards him but realized that she had forgotten her purse in the car. She walked back to the car and reached in to get her purse. It was at that time that the car was surrounded by police officers, including the man, who was actually an undercover officer. Turcotte was arrested. She pleaded guilty to prostitution and was sentenced to time served and court costs. On cross examination, Turcotte testified that she did not remember whether she introduced the man to respondent or Jessica. When questioned by the tribunal as to the temperature that night, Turcotte answered, “It was cold. It was not real cold, but it was cold,” but nonetheless reconfirmed that she was outside respondent’s car while she waited to see if the man would call her.

The Department’s documentary evidence, an arrest report (Pet. Ex. 1) and complaint follow-up informational (“informational”) (Pet. Ex. 8), contradicted both respondent’s and Turcotte’s testimonies as to where Turcotte was when she spoke to the undercover officer. According to the arrest report, the undercover officer called Turcotte’s cell phone and made an agreement for sexual intercourse for $300. Turcotte then instructed the officer to proceed to respondent’s vehicle, where, the arrest report states, they again reached an agreement for sexual intercourse for $300 while Turcotte was sitting in the vehicle (Pet. Ex. 1). The arrest report does not indicate how the undercover officer came into possession of Turcotte’s cell phone number. The informational goes into more detail: At about 11:20 p.m., the undercover officer met Turcotte in front of 130 East 28th Street. She was sitting in the front passenger seat of respondent’s vehicle. After a brief conversation, Turcotte introduced herself and two other females in the vehicle, and handed the undercover officer her business card. She instructed him to call her. The officer asked how much it would cost, to which respondent answered, “full service?” The officer asked what full service included. Turcotte told him, “anything you want for one hour.” Turcotte said that she provided the condoms. She told him they would go to a hotel room on 24th Street and asked him to pay the hotel cost. The undercover officer stated he would. Turcotte exited the vehicle and said they would take a taxi to the hotel. At that time, the undercover officer signaled the field team, which converged and arrested Turcotte next to the vehicle.

The informational describes only one conversation that took place between Turcotte and the arresting officer, which took place in person at respondent’s vehicle, while the arrest report describes two conversations, one by cell phone followed by one in person at respondent’s vehicle. Nonetheless, the facts essential to establishing the crime of prostitution as presented in the two documents do not necessarily contradict each other: Turcotte reached an agreement with the undercover officer while she was in respondent’s vehicle. See Police Dep’t v. Lord, OATH Index No. 942/08, mem. dec. at 5-6 (Dec. 6, 2007)(finding arrest report, complaint report, and criminal complaint not inconsistent where each alone provided sufficient justification for the arresting officer to have arrested respondent).

I find the version of events as put forth in the Department’s documentary evidence to be more likely what occurred than the version testified to by respondent and Turcotte. It seems unlikely that Turcotte would wait in what she described as cold weather for a man to possibly call her when she could instead wait in respondent’s vehicle. Additionally, Turcotte testified that she planned on keeping the potential prostitution transaction a secret from respondent and Jessica, which could serve as an explanation for her waiting outside the car, yet she did not testify as to what explanation she would have given them for her disappearance when they were allegedly planning on going to a nightclub.

As to the first prong of the Krimstock Order, based on Ms. Turcotte’s testimony at trial, as well as her conviction for the crime of prostitution, there was probable cause for her arrest. SeePolice Dep’t v. Patterson, OATH Index No. 1424/09, mem. dec. at 3 (Nov. 14, 2008) (“a guilty plea resolves all issues relating to the underlying arrest in these proceedings and essentially establishes the first two Krimstock prongs”); Police Dep’t v. Ojeda-Burgos, OATH Index No. 1959/05, mem. dec. at 3 (June 9, 2005); Police Dep’t v. Ayala, OATH Index No. 1539/05, mem. dec. at 4 (Apr. 5, 2005)(citing Berman v. Turecki, 885 F. Supp. 528, 533 (S.D.N.Y. 1995), aff’d without op., 1996 U.S. App. LEXIS 3026 (2d Cir. 1996) (“[A] guilty plea ‘disposes of any issue pertaining to the constitutionality of [party’s] arrest, interrogation, search and prosecution.’”) (citations omitted)). Accordingly, here, the first prong of the Krimstock Order is established.

To establish the second element of the Krimstock Order, petitioner must show that it is likely to prevail at a civil forfeiture proceeding. That is, it must prove that the subject vehicle was “used as a means of committing crime or employed in aid or in furtherance of crime….” Admin. Code § 14-140[e][1] (Lexis 2008). The purpose of this section is to punish wrongdoers, not innocent parties. Property Clerk v. Pagano, 170 A.D.2d 30, 35, 573 N.Y.S.2d 658, 661 (1st Dep’t 1991) (“The courts have long held that a statute which holds a person liable for having permitted or suffered a certain activity may only be enforced against one who knew, or should have known, that the activity would take place”). Here, respondent testified that she was sleeping in the back of her car and awoke only to find police officers arresting Turcotte. However, the Department’s documentary evidence establishes that respondent was present and awake in the car—she was in fact introduced to the undercover officer—while Turcotte negotiated an agreement with him. As I credit the documentary evidence over both respondent’s and Turcotte’s testimonies, I find that respondent permitted Turcotte to use her vehicle in furtherance of a crime. Therefore, the Department has established the second prong of the Krimstock Order.

Finally, petitioner must establish that it is necessary for it to retain the vehicle pending the forfeiture action or that the return of the vehicle would pose a heightened risk to the public safety. See, e.g., Police Dep’t v. McFarland, OATH Index. No. 1124/04, mem. dec. at 2 (Feb. 24, 2004) (citing Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86). This tribunal has found heightened risk to public safety may be established by the circumstances of the crime or the driver’s history. See, e.g., Police Dep’t v. Harris, OATH Index No. 983/06, mem. dec. at 4 (Feb. 16, 2006) (respondent arrested for “serious felony offense,” including the alleged reckless endangerment and serious misdemeanors such as menacing and the criminal possession of a firearm); Police Dep’t v. Serrano, OATH Index No. 499/06, mem. dec. at 5 (Sept. 22, 2005) (breathalyzer readings of .207% and .239% on the retest were so high that they indicated a certain recklessness); Police Dep’t v. Joyner, OATH Index No. 1327/04, mem. dec. (Mar. 11, 2004) (necessity to retain vehicle established by respondent’s driving at more than twice the speed limit); Police Dep’t v. Mohammed, OATH Index No. 1159/04, mem. dec. at 3-4 (Mar. 2, 2004) (vehicle used for multiple sales of illegal firearms); Lord, OATH 942/08 (driver’s third drinking and driving arrest); Police Dep’t v. Busgit, OATH Index No. 1616/05, mem. dec. (Apr. 4, 2005) (respondent’s two DWI arrests established heightened risk).

Prostitution is a serious crime with real consequences, see People v. Sato, 17 Misc. 3d 1120A, 1120A, 851 N.Y.S.2d 73 (Crim. Ct. N.Y. Co. 2007) (rejecting contention that prostitution is a victimless crime), the Department, however, failed to provide evidence that returning this car to this respondent would result in a heightened risk to public safety or health. Counsel for the Department analogized the potential risk here to that where vehicles have been seized in connection with the crime of selling counterfeit goods. We have repeatedly held, however, that releasing vehiclesthat were used in selling counterfeit goods generally does not pose a risk to public safety or health. Police Dep’t v. Weng, OATH Index No. 1472/08, mem. dec. (Feb. 6, 2008) (vehicle seized in connection with respondent’s arrest for selling counterfeit handbags released because petitioner failed to establish that retention of respondent’s vehicle was necessary to protect public safety);Police Dep’t v. Xia, OATH Index No. 128/08, mem. dec. (July 18, 2007). Instead, we have retained vehicles used to sell counterfeit goods only when the Department established that the owner had a history of using the vehicle to sell counterfeit goods. See Police Dep’t v. Yun Huang, OATH Index No. 2519/08, mem. dec. (June 5, 2008) (finding a substantial risk that criminal activity would resume because driver had an extensive history of similar unlawful conduct with the same vehicle).

Here, the Department has not proven a pattern of illegal conduct in respondent’s vehicle. Respondent’s repository inquiry indicated that she has been convicted 207 times, a majority of which were for the crime of prostitution (Pet. Ex. 9). While her criminal history is extensive, the Department did not establish that any of the convictions involved crimes in which a vehicle was involved. Although respondent admitted that she had a different car seized in connection with an August 27, 2004, arrest for prostitution, which resulted in a conviction, the Department did not ascertain the circumstances surrounding the seizure, such as whether respondent had even contested the seizure. This tribunal has repeatedly explained that the mere fact of a criminal history or other criminal conduct does not in all instances signify that releasing the seized vehicle to respondent would pose a heightened risk. See, e.g., Police Dep’t v. Cruz, OATH Index No. 339/06, mem. dec. (Aug. 19, 2005) (where respondent was arrested for DWI, attempted murder, and assault, his first time DWI and evidence of the assault was not sufficient to demonstrate a heightened risk); Police Dep’t v. Ferrer, OATH Index No. 977/08, mem. dec. at 4 (Nov. 14, 2007) (finding no evidence that respondent’s prior criminal conduct involved or was facilitated by his use of a motor vehicle, and that his prior convictions for criminal possession of a controlled substance, by themselves, were insufficient evidence of a heightened risk).

Accordingly, I find that the Department has failed to meet its burden in demonstrating that returning the vehicle to respondent would pose a heightened risk to public safety or health.

ORDER

The Department is not entitled to retain the seized vehicle.

Kara J. Miller

Administrative Law Judge

December 19, 2008

APPEARANCES:

BRIAN DERR, ESQ.

Attorney for Petitioner

DALE I. FREDERICK, ESQ.

Attorney for Respondent