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Police Dep't v. Melendez
OATH Index No. 1520/06, mem. dec. (April 5, 2006)
The Department is entitled to retain the seized vehicle as the instrumentality of a crime pending outcome of a civil forfeiture action. ALJdenied respondent’s motion to dismiss, finding that the notice of right to a hearing was properly served. Respondent conceded the first two elements; ALJ found that the third prong was established by petitioner’s high blood alcohol content at the time of arrest.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
-against-
CARMEN MELENDEZ
Respondent
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MEMORANDUM DECISION
ROBERTO VELEZ, ChiefAdministrative 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 Carmen Melendez was the registered owner and driver of the vehicle at the time it was seized (Pet.Exs. 1,2,3). This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), second amended order and judgment (S.D.N.Y. Dec. 6, 2005) (the "Krimstock Order"); see County of Nassau v. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003).
The vehicle in issue, a 1995 Ford Windstar, voucher number B104010, was seized on March 4, 2006, in connection with Ms. Melendez’sarrest for driving while intoxicated (Pet.Ex.23). Following receipt of respondents' demand for a hearing on March 20, 2006, the Department scheduled a hearing for March 30, 2006 at 2:00 p.m. Ms. Melendezappeared with counsel and contested the Department's petition. As set forth below, I conclude that the Department is entitled to retain the vehicle.
ANALYSIS
The Department seeks to sustain its retention of the seized vehicle as the instrumentality of a crime. To do so, 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. Krimstock Order at 3;Canavan, 1 N.Y.3d at 14445, 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 v. Kelly, 306 F.3d 40, 6970 (2d Cir. 2002); see Canavan, 1 N.Y.3d at 144 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).At the beginning of the hearing, Ms. Melendez moved to dismiss the proceeding and requested an order directing the Department to return the car immediately because the Department failed to properly serve her with a notice of her right to request a retention hearing.
Paragraph 3 of the KrimstockOrder sets forth the notice requirements with which the Department must comply upon seizing a respondent’s vehicle:
Notice of the right to a forfeiture hearing will be provided at the time of seizure by attaching to the [property clerk’s] voucher already provided to a person from whom a vehicle is seized a notice, in English and Spanish, as set forth below.
Krimstock Order, ¶ 3. The Order specifies the minimum contents of that notice, which must include a form which a respondent can submit to the Department demanding a hearing seeking return of her vehicle, which hearing must then be scheduled within ten business days of receipt of the demand. The notice must also contain important information about the place, subject matter, and timing of the hearing. The Department has created a vehicle seizure form containing the required notices. In addition to serving respondent with this form at the time the vehicle is seized, the Krimstock Order also requires the Department to mail the form to the registered and/or title owner of the vehicle within five business days of the seizure if it is different from the driver. Police Dep’t v. Cardona, OATH Index No. 1476/06, mem.dec. (Mar. 29, 2006). This is not the case here. Ms. Melendez is the driver and registered owner. Mail notice was not required.
The Department contends that it served Ms. Melendez with the notice by submitting its copy of the Vehicle Seizure Form prepared by Police Officer Kenneth Radigan, who arrested Ms. Melendez(Pet.Ex. 8). In the section entitled “Acknowledgment of Service”, there is a space for the “defendant” to sign, which in this case is Ms. Melendez. Ms. Melendez’s name is typed in, but her signature does not appear. In place of her signature is the handwritten word “refused” and Officer’s Radigan’s initials with his badge number. Officer Radigan’s signature appears at the bottom of the “Acknowledgment of Service” box indicating that Officer Radigan completed this section. According to the Department’s counsel, this form indicates that Officer Radigan attempted service of the notice on Ms. Melendez but she refused.
Ms. Melendez testified that she was not served with the vehicle seizure form at the time of her arrest, as required. Nor did she ever receive the mail notice required by the Krimstock Order. Instead, she stated that she learned of her right to request a vehicle retention hearing only by a letter she received by the Department’s auto pound unit (Resp. Ex. B) and through a conversation with her attorney. Her counsel assisted her in obtaining a copy of the vehicle seizure form from the Department. Ms. Melendez’scounsel represented that counsel promptly completed the form and forwarded it back to the Department.
For the reasons set forth below, I credit the Department’s documentary proof that Officer Radigan attempted to serve respondent with the notice of right to a hearing over respondent’s denial that service was attempted. The form entitled “Acknowledgment of Service” was completed clearly and it indicated that Officer Radigan attempted service and Ms. Melendez refused to accept it. Patrol Guide section 218-48 includes a command that the arresting officer serve the defendant (respondent) with the pink copy of the vehicle seizure formwhen processing the arrest (Pet. Ex. 14). The form contains the same instruction. There is a presumption of regularity which attaches to official acts. The thrust of the presumption of regularity is that public officials, absent credible evidence to the contrary, are presumed to have properly discharged their duties.In reMarcellus, 165 N.Y. 70, 77, 58 N.E. 796, 798 (1900); Dep't of Sanitation v. Smalls, OATH Index No. 270/01 (Nov. 3, 2000). I find that the Department is entitled to rely on the presumption here.
Nor do I find that Ms. Melendez’s testimony rebutted the presumption. In determining whether a respondent has credibly denied that they had been served by the Department, OATH ALJs have looked at inconsistencies within the completed acknowledgment form, respondents’ blood alcohol level, respondents’ behavior during the arrest. In light of those factors, I do not find Ms. Melendez’s testimony credible. Dep’t v. Sica, OATH Index No. 1139/06, mem. dec.(Jan. 26, 2006). Her blood alcohol level of .182 was twice the legal limit, which could have affected Ms. Melendez’s ability to recall events during her arrest and detention. There was no testimony offered regarding Ms. Melendez’s arrest, nor her subsequent interaction with police officers. In any event, I find Ms. Melendez’s testimony to be self-serving and not credible. Since the Department did what it was required to do under the KrimstockOrder, respondent could not defeat service by refusing to accept the notice. I deny Ms. Melendez’s motion to dismiss the petition and find that the Department provided proper notice.
With respect to the first two elements, counsel for Ms. Melendez conceded that she was not challenging the Department’s proof of the validity of the arrest and its likelihood of success at the eventual forfeiture proceeding. Thus, the Department has proven the first two elements required by the Krimstock Order.
As to the third element or the necessity to retain the vehicle pending the forfeiture action, we have held that where the return of the vehicle to the respondent would pose a heightened risk to the public safety, such risk satisfies this element. See, e.g., Police Dep't v. McFarland, OATH Index No. 1124/04, mem. dec. at 2, citing Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86. In certain cases we have found that the circumstances of the arrest were so extreme as to establish a heightened risk to the public safety, even in the absenceof a prior relevant criminal record. See Police Dep't v. Serrano, OATH Index No. 499/06, mem. dec. (Sept. 22, 2005) (.207 % breathalyzer reading was sufficient to retain vehicle because it established heightened risk to public safety); 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. McFarland, OATH Index No. 1124/04 (noting that “[a] very high blood alcohol level . . . might show a recklessness behind the wheel that would substantially heighten the risk to both the public and to the preservation of the vehicle”).
As in theSerrano case, the heightened risk is proven by a blood alcohol level of .182, which is more than twice the legal limit of .08 (Pet. Ex. 2). Ms. Melendez has shown a complete disregard for her safety, the safety of heryoung passengers, and the safety of the public. Serrano, mem. dec. at 4. See also Police Dep't v. Busgit, OATH Index No. 1616/05, mem. dec. (Apr. 4, 2005) (noting that, in addition to other factors, respondent’s .126% blood alcohol level was sufficiently high to infer disregard for public safety).
In her defense, Ms. Melendez testified that she has only been arrested once before for the sale of marijuana. Ms. Melendez testified that the matter was a misdemeanor and it was adjourned in contemplation of dismissal (Pet.Ex. 2). However, these facts do not serve as mitigating factors to her very high blood alcohol level. Ms. Melendez also testified that she needs her vehicle to go to work at Alliance for Health because it is difficult to travel within the county where she resides. Ms. Melendez’s hardship, however, is not a factor to be considered in this proceeding. See Busgit, OATH Index No. 1616/05 (noting that inconvenience to respondent and his family members is not considered).
The Department has proven all elements of the KrimstockOrder and is entitled to retain the vehicle pending the forfeiture action.
ORDER
The Department is entitled to retain the seized vehicle.
Roberto Velez
Chief Administrative Law Judge
April 5, 2006
APPEARANCES:
LAWRENCE V. SISTA, ESQ.
Attorney for Petitioner
KISSA BRODIE, ESQ.
Attorney for Respondent