Police Dep't V. Mays

1

Police Dep't v. Mays

OATH Index No. 1516/09, mem. dec. (Dec. 30, 2008)

Petitioner is not entitled to retain custody of seized vehicle, having failed to demonstrate that respondent is not an innocent owner. Vehicle ordered released.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

EBONI MAYS

Respondent

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MEMORANDUM DECISION

TYNIA D. RICHARD,Administrative Law Judge

Petitioner, the Police Department (“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 Eboni Mays is the registered and titled owner of the vehicle, which was seized from a person known to her. 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 is a 1999Ford Expedition, which was seized by the Department in connection with the arrest of Curtis Kirklandfor attempted murder, assault, and criminal possession of a loaded firearm (Pet. Ex. 4). Respondent asserts that she is an innocent owner.

Respondent’s demand for a hearing was received by the Department on November 10, 2008, and trial was scheduled for November 20, 2008 (Pet. Exs. 1, 2). Trial commenced and respondent appeared with counsel, Morris Markowitz, Esq. Upon respondent’s request, trial was continued to November 24 so that she could call her father as a witness to contradict an argument asserted by the Department. On November 24, respondent appeared without her attorney who she said was engaged in another matter. Although I had not been made aware of counsel’s unavailability on the date, which was jointly selected, I allowed respondent to proceed on her representation that she was confident she could question her father in her attorney’s absence. After testimony was given and at the time for closing arguments, however, respondent protested that she was unprepared to marshal the evidence to her best advantage, as she presumed her counsel would, and she asked that another trial date be selected so he could appear to give argument. Over the Department’s objection, I granted her request for a second continuance to December 9, a date that Mr. Markowitz’s office assured me (by telephone) he would be available to appear. On December 9, I received a phone call from Mr. Markowitz’s office and was told that he wasundergoing chemotherapy and was too ill to appear. During a conference call with Mr. Markowitz, it was evident that he was quite ill and could not appear for his client that day, even by conference call, as his speech was so hindered that I had difficulty understanding him. Over the Department’s objection, a continuance was granted and scheduled for December 29, a date agreed to by both parties.

On December 29, respondent appeared without her attorney and indicated that he was too ill to appear and that she wished to proceed without him. Instead, her father, Levon Hicks, offered closing argument on her behalf.

ANALYSIS

The Department seeks to retain the seized vehicle as the instrumentality of a crime pending the outcome of its civil forfeiture action. To do so, the Department bears the burden of proving three elements 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 protect the public safety. Krimstock Order, at 3; Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286. The due process rights at issue here require 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; see Canavan, 1 N.Y.3d at 144-45 n.3, 770 N.Y.S.2d at 286 n.3 (hearing is intended to establish “the validity, or at least the probable validity, of the underlying claim”) (citation omitted). The Department has notmet its burden here.

Respondent is the registered and titled owner of a 1999 blue Ford Expedition (Pet. Ex. 7). She testified that she is a neighbor of Curtis Kirkland, the man whose arrest led to the seizure of her car.

It was undisputed that,on June 18, 2008, Kirkland was convicted upon a plea of guilty to criminal possession of a loaded firearm, a class C felony (Pet. Ex. 6, at 3). The criminal conviction precludes any challenge to the basis for the arrest as well as to the merits of the criminal charge itself. Berman v. Turecki, 885 F.Supp. 528, 533 (S.D.N.Y. 1995), aff’d without opinion, 1996 U.S. App. LEXIS 3026 (2d Cir. 1996) (guilty plea “‘disposes of any issue pertaining to the constitutionality of [the] arrest, interrogation, search and prosecution’”) (citation omitted). Thus, respondent may not challenge the probable cause for Kirkland’s arrest, the first prongof the Krimstock analysis, or the fact that he committed the felony of possessing a loaded gun.

As to the second prong, however, petitioner must still prove that the vehicle was the instrumentality of a crime in order to establish the Department’s likelihood of success in the civil forfeiture action. See Police Dep't v. Ferrer, OATH Index No. 977/08, mem. dec. (Nov. 14, 2007) (vehicle altered for purposes of transporting bags of cocaine was instrumentality of crime).

Respondent disputes that her vehicle was used in the commission of a crime. She claimed that it was parked inside a garage that day. The record indicates that Kirkland’s crime was committed a week before he was apprehended and arrested, and the vehicle was not seized at the time of his arrest, as the arrest report makes no mention of it (Pet. Ex. 4). Moreover, the Department did not offer the property clerk’s voucher which might help establish the date, location, and circumstance of the vehicle seizure, information that is otherwise absent from the record.[1]

The Department contends that Kirkland’s use of the vehicle as an instrumentality of a crime is supported by its hearsay evidence, particularly the complaint report. I agree.

The Department’s documentary evidence indicates that, on May 23, 2007, Curtis Kirkland shot two men several times resulting in serious injuries to both (Pet. Exs. 5, 9). The complaint report states that an officer at the scene heard five shots fired, observed one of the victims fall to the ground, and observed both victims with multiple gunshot wounds (Pet. Ex. 5). It further states that the shooter, who was unnamed at the time, fled the scene “through rear door in a blue Ford JeepNY plate #AYN7238,”although the complaint report does not specify the source of this information. Ms. Mays claimed that she provided Detective Parsekian with the license number of her vehicle contained in the report and disputes that this information was obtained from other information or witnesses. I did not credit her claim, however, and note that she also stated that her conversation with the detective occurred on May 30th, the day of Kirkland’s arrest, days after the complaint report was written.[2]

Petitioner’s evidence further indicates that, the day after the shooting, a witness told police thatshe heard several gunshots and then saw Kirkland run out of the building, place a gun in his waistband, and flee the scene in “his blue truck” (Pet. Ex. 5A). The witness identified Kirkland by a photograph shown to her by police and also told police that she has known him for years and that he lived at 131 Belmont Avenue with his girlfriend. The informant did not identify the girlfriend by name.

Mays sought to discredit this witness account, stating that the informant is a relative of the person who murdered her brother in 2004 and that the informant’s children had vandalized her vehicle in the past. She also argued that the informant’s account was improbable because Kirkland would have been shot immediately if he had been seen leaving the building with a gun. The Department contendsthat Kirkland was not seen because he left through a rear door (Pet. Ex. 5).

In general, I found respondent’s contentions unreliable inasmuch as they evidenced a fair degree of self-interest and contained numerous inconsistencies. I therefore viewed her testimony with some skepticism. First, Mays claimed that Kirkland was merely a neighbor of hers and denied any real connection to him, but this was contradicted by other evidence in the record. At the time of his arrest, Kirkland gave police Mays’s address as his own (131 Belmont Avenue, apartment 13H); Mays’s address is also listed on his driver’s license (Pet. Exs. 4, 7). She denied that Kirkland lived with her and claimed that he used her address because of his mother’s eviction, which caused him to move in with his sister. She did not explain why he did not use his sister’s address. In addition, Mays, who testified that her complete name is Eboni Mays Carter, denied that Kirkland called her from prison -- a claim that is disputed by the arrest report which states that Kirkland called “Eboni Carter” after his arrest (Pet. Ex. 4). Second, when asked by her lawyer, under oath, whether Kirkland had to seek permission from her to use her vehicle, she answered yes. But when questioned by the Department’s advocate, she denied that Kirkland had ever driven her vehicle. She specifically denied that he drove it on the day of the shooting and said that it was parked in a garage that day.

In all, I found the information contained in the complaint report, which was obtained on May 23 and 24, before Kirkland’s arrest and Mays’s interview, sufficient to show that respondent’s vehicle was used as an instrumentality of a crime. I find it more likely than not that the officer at the scene at the time of the shootings made the observations and obtained the information contained in the complaint report, including the license number of respondent’s car. The proof that respondent was seen with a gun getting into a vehicle similar to the one police observed established that the vehicle was used as an instrumentality of a crime.

To establish prong two, it is also the Department’s burden to show that respondent is not an innocent owner. See Property Clerk, New York City Police Dep’t v. Pagano, 170 A.D.2d 30, 34-35, 573 N.Y.S.2d 658, 661 (1st Dep’t 1991). The Department failed to do so here.

First, the Department sought to establish that Kirkland was the beneficial owner of the vehicle. Beneficial ownership or a possessory interest in a vehicle is established by dominion and control over the vehicle. See Vergari v. Kraisky, 120 A.D.2d 739, 502 N.Y.S.2d 788 (2d Dep't 1986). Several factors have been used to evaluate whether someone is the beneficial owner of a vehicle: 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. See, e.g., Police Dep't v. Washington, OATH Index No. 1525/07, mem. dec. (Mar. 30, 2007) (son was beneficial owner who exercised “dominion and control” over seized car by using it regularly and predictably, even though mother purchased car and used it periodically but primarily used another car); Police Dep't v. Bacon, OATH Index No. 551/06, mem. dec. (Oct. 19, 2005) (finding that driver was the beneficial owner of vehicle, rather than his girlfriend who was the titled owner, because he made the car payments).

In connection with its contention that Kirkland is the beneficial owner of the Expedition, the Department argued that Maysuses a 1997 Chevrolet Suburban, which is also registered in her name (Pet. Ex. 7). Mays testified that the Chevrolet’s registration is inaccurate and that it belongs to her father, Levon Hicks. She said she originally registered it in her name as a favor to him just after he moved to New York from Arkansas and that she recently corrected the DMV filings to properly register the car in his name. Mays said the Suburban is a two-seater work van that could not accommodate her and her six children. Her father confirmed her account, though they produced no corrected DMV filings.

Mr. Hicks testified that he recently registered the Suburban in his name and that he has owned it since he purchased it on June 29, 2005, the date onhiscertificate of title (Resp. Ex. B). He said he uses the van in his work as a street vendor and that it is modified to transport the goods he sells. He said his daughter has never driven it. He brought his government-issued vendor identification and displayed it for the tribunal’s review. He also brought his certificate of title and DMV records indicating that Mays surrendered the plates to the vehicle on May 15, 2007 (Resp. Exs. A, B).

In the absence of any documentation that the car’s registration had been changed to Hicks, I declined to conclude, asrespondent urged, that the Suburban was registered to her father. Nevertheless, this fact alone was insufficient to conclude that the Suburban was primarily used by Ms. Mays or that she did not make primary use of the Expedition.

Respondent said she purchased the Expedition in July 2003. Mays, who has six children, testified that she is unemployed and has not worked since January 2007. She said she receives SSI payments for her son and some support from her father. She was not questioned about the cost of the Expedition, whether she financed any portion of it, or whether she currently makes payments on it. She stated that she and her father pay for the vehicle’s maintenance.

Although it appeared doubtful that respondent could afford to make any current car payments, and given her transparent attempts to hide a much closer relationship with Kirkland than she would admit to, petitioner’s evidence nevertheless failed to establish a beneficial ownership. The Department’s evidence never established who paid for or was paying for the Expedition. In addition, there was no evidence that Kirklandexercised “dominion and control” over the vehicle to any quantifiable degree. Ms. Mays said he never used it and, except for his use on the day of the shootings, there was no other evidence of his use of the vehicle. Thus, the evidence of beneficial ownership was sparce and ultimately insufficient to meet petitioner’s burden.

Last, the Department failed to establish that Mays was not an innocent owner. The rule regarding innocent owners arises from the Administrative Code provision that prohibits claimant-owners who use property to commit a crime “or permit[] or suffer[] the same to be used” for unlawful activity from reclaiming such property. Admin. Code § 14-140(e); see also Krimstock, 306 F.3d at 48, n.9. A court will hold an owner liable for having permitted or suffered a certain activity if that owner “knew, or should have known, that the activity would take place.” Pagano, 170 A.D.2d at 35, 573 N.Y.S.2d at 661.

Kirkland has no prior criminal history (Pet. Ex. 6). Assuming that Kirkland was driving respondent’s car on the day of the shootings, the Department produced no evidence that Mays was complicit in Kirkland’s criminal use of the vehicle, that she permitted or suffered its criminal use, or that she should have known that the vehicle would be used as an instrument of a crime. See Police Dep't v. Padilla-Barham, OATH Index No. 1356/08, mem. dec. (Jan. 8, 2008).

Accordingly, the Department failed to prove the second prong of the Krimstock test.

ORDER

The Department failed to satisfy its burden of proof under the Krimstock Order and is not entitled to retain the vehicle pending the forfeiture action.

Tynia D. Richard

Administrative Law Judge

December30, 2008

APPEARANCES:

MICHAEL DECILLIS

Representative for Petitioner

MORRIS MARKOWITZ, ESQ.

Attorney for Respondent

EBONI MAYS

Respondent pro se

[1]Respondent said the car was seized from her mother’s house. No reason was offered by either party why this would be the case.

[2]Mays reported that she learned of Kirkland’s arrest from Detective Parsekian who visited her on May 30 and told her that the people she “had problems with” said that “Curtis had just shot two of them.”