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Police Dep’t v. Adams

OATH Index No. 1997/06, mem. dec. (June 30, 2006)

The Department is entitled to retain seized vehicle as the instrumentality of a crime pending outcome of a civil forfeiture action. ALJ denied respondent’s motion to dismiss, finding respondent receivednotice of his right to a hearing. Respondent conceded the first two elementsof Krimstock and ALJ found that the third prong was established by respondent’s criminal history.

______

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

CLARENCE ADAMS

Respondent

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MEMORANDUM DECISION

ALESSANDRA F. ZORGNIOTTI,Administrative Law Judge

Petitioner, the Police Department, brought this proceeding to determine its right to retain a vehicle, a 1998 Dodge Durango (Voucher No. B025580), seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. Respondent Clarence Adams is the registered owner of the seized vehicle and was driving the vehicle at the time it was seized. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), second amended order and judgment (S.D.N.Y. Dec. 6,2005) (“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 Nassauv. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003).

Respondent’s vehicle was seized on April 10, 2006, in connection with respondent’s arrest fordriving while impaired by drugs, unlawful possession of a controlled substance, unlawful possession of marijuana, and driving without a license. Respondent was observed by Detective Jason Gonzalez driving slowly, weaving through traffic, and rolling through a red light (Pet. Exs. 4 & 5). On May 16, 2004, respondent pled guilty to operating a motor vehicle while impaired by drugs, a misdemeanor (Pet. Ex. 6). Following receipt of respondent’s demand for a hearing on June 14, 2006, a hearing was scheduled for June 27, 2006, a date when respondent’s counsel was available. Respondent appeared with counsel and contested the Department’s petition. Upon evaluating the evidence, I find that petitioner is entitled to retain the seized vehicle pending the outcome of the forfeiture action.

ANALYSIS

At the hearing, respondent moved to dismiss the proceeding and foran order directing the Department to immediately return the car because it failed toproperly serve him with a notice of his right to request a retention hearing at the time thevehicle was seized or by mail thereafter, as required by the Krimstock Order.

The Order is very specific about the notice requirements that petitioner must complywith upon seizing a vehicle. It states:

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 vehicleis seized a notice. . . . A copy of such notice will also be sent by mail to the registered and/or title owner of the vehicle within five business days after the seizure.

Krimstock, second amended order, para. 3 (Dec. 6, 2005). The Order also specifies theminimum contents of that notice, which must include a form that a respondent cansubmit to petitioner demanding a hearing seeking return of the vehicle. The hearingmust be scheduled within ten business days of receipt of the demand.

Petitioner hascreated a“Vehicle Seizure Form”(PD 571-1218),a five-page tear-off document. The arresting officer writes pertinent information in a box on the first page which is carbon copied to the other pages. The first four pages are identical and arecolor coded for distribution to various entities including the Civil Enforcement Unit (white),which represents the Department in these proceedings. The fifth page is pink and contains the notice of the right to a retention hearing and the form that must be used to request the hearing. The pink copy is given to the defendantat the time the vehicle is seized.[1]

Respondent testified that he was not served with the VehicleSeizure Form or with a copy of the property clerk’s voucher, asrequired. Nor did he ever receive a copy of the notice by mail. Instead, he claimed that he only learned of his right to request a vehicle retention hearingthrough his attorney in a conversation sometime in June 2006. Counsel assisted him in getting a copy of the Vehicle Seizure Form and respondent requested a hearing by submitting the form to petitioner (Resp. Ex. E).

The Department contends that it served respondent with the notice and submitteda copy of the Civil Enforcement Unit’s Vehicle Seizure Form prepared by Detective Gonzalez (Pet. Ex. 1). In the section entitled “Acknowledgment of Service,” there is a space for the “defendant” to print his name and sign an acknowledgement of receipt of the “NOTICE OF RIGHT TO A RETENTION HEARING.” The document bears respondent’s printed name and signature. At trial, respondent initially denied signing the document but later conceded that it was his signaturebutclaimed that the form was never given to him by the police officer. However, on the document,Detective Gonzalez indicated by checking off the appropriate boxes that respondent acknowledged service of the Vehicle Seizure Form and that hegave respondent both theform and the voucher (Pet. Ex. 1).[2]

In a post-trail submission, respondent argued for the first time that the form was not given to him at the time of arrest (7:15 pm)as required, but that he was asked to sign the acknowledgment at 10:07 pm (Pet. Ex. 1). This does not warrant dismissal because service of the notice occurred while respondent was in Detective Gonzalez’s custody. Respondent also argued that evidence that he did not get the notice can be inferred from the voucher which contains information entered after April 10, 2004 (Pet. Ex. 2). The fact that Detective Gonzalez may not have completed the vouchering paperworkon the day of the arrest is not evidence that he did not give respondent his copy of the voucher on April 10. The voucher has a space on the bottom for the officer to write that the vehicle was delivered to a storage facility and that it was received and signed for. Since delivery of the vehicle occurredon April 13, 2006, it is logical that that the voucher would not have beencompleted on the day of the arrest. I did not find respondent’s testimony concerning the Department’s failure to provide him with the required documents credible. Based on respondent’s admission that he signed for the notice and the form which shows that Detective Gonzalez gave it to him,I find that the Department has shown by a preponderance of the evidence that respondent was served with notice of his right to a hearing as required by Krimstock. Cf. Police Dep’t v. Sica, OATH Index No. 1139/06, mem. dec. (Jan. 26, 2006) (where officer failed to check-off box that he had served respondent with Vehicle Seizure Form and respondent testified credibly that he had not received it, ALJ determined that officer had not complied with notice requirements).

At trial, petitioner did not put forth any proof that the Department also mailed a copy of the notice to respondent within five business days of the seizure. The record was left open and the Department subsequently acknowledged that it did not do so. The Department’s failure to mail a copy of this notice is not grounds for granting respondent’s motion, since respondent, the registered owner, had actual notice of his rights at the time of arrest. Police Dep’t v. Melendez, OATH Index No. 1520/06, mem. dec. (Apr. 5, 2006); Police Dep’t v. Cardona, OATH Index No. 1476/06, mem. dec. (Mar. 29, 2006). I caution the Department for a second time that this finding in no wayobviatesits obligation to comply with the notice requirements as prescribed in paragraph 3 of the Krimstock Order. Police Dep’t v. Murray, OATH Index No. 1631/06, mem. dec. at 3-4 (Apr. 25, 2006).

Having found that respondent had notice of his right to a hearing, I turn to whether the Department has a right to retain the seized vehicle as the instrumentality of a crime. The Department bears the burden of proving by a preponderance of the evidence that: (i) probable cause existed for the arrest pursuant to which the vehicle was seized; (ii) it is likely that the Department will prevail in a civil action for forfeiture of the vehicle; and (iii) it is necessary that the vehicle remain impounded to ensure its availability for a judgment of forfeiture. Krimstock Order at 2; 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 v. Kelly, 306 F.3d 40, 69-70 (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).

With respect to the first two elements, counsel for respondentdid not challenge the validity of the arrest orthe Department’s likelihood of success at the eventual forfeiture proceeding. A guilty plea resolves all issues relating to the underlying arrest in these proceedings and essentially establishes the first two prongs of the Krimstocktest. Police Dep’t v.Cruz, OATH Index No. 1643/06, mem. dec. at 3 (Apr. 25, 2006).

As to the third element, the necessity to retain the vehicle pending the forfeiture action, we have held that where 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.

Initially, I reject the Department’s contention that the vehicle should be retained in order to preserve it from sale, loss, or destruction. In Police Dep’t v. Junior, OATH Index No. 1134/06, mem. dec. at 4-5 (Feb. 8, 2006), Judge McFaul stated:

This ground can no longer be accepted as a basis for retaining the vehicle since the Department has failed to adopt any of the alternatives to retention referred to by the Krimstock court. Krimstock, 306 F.3d at 70. One alternative to retention, posting a bond in an amount equal to the value of the vehicle, was removed from the process by order of the District Court until “a procedure for securing a bond” is put into place. Krimstock v. Kelly, 99 Civ. 12041 (MBM), order (S.D.N.Y. Dec. 23, 2004). More than a year has passed and no bond procedure or other alternative, such as accepting cash in lieu of a bond, has been adopted by the Department. The Department’s inaction undercuts its argument that retention is necessary to protect the asset for forfeiture.

However, where the Department has shown uncontroverted evidence of a respondent’s criminal history which indicates a strong possibility of continuing to drive while impaired, a heightened risk to public safety may be established. See Police Dep’t v. Pupa, OATH Index No. 1650/05, mem. dec. (Apr. 6, 2005) (Department entitled to retain vehicle where shown that respondent was driving while impaired, had five recent convictions for criminal possession of narcotics and one conviction for the sale of controlled substances). Police Dep’t v. Benkovich, OATH Index No. 1296/04, mem. dec. (Mar. 9, 2004) (respondent found to be a risk to public safety where there was evidence of repeat drug and alcohol offenses). Police Dep’t v. Miranda, OATH Index No. 450/05, mem. dec. (Sept. 13, 2004) (respondent’s record of prior criminal convictions demonstrates a general lawlessness that further enhances the risk to public safety).

Here, respondent’s criminal history, which dates back to 1988, justifies retention of the vehicle (Pet. Ex. 6). Respondent, who is 39 years old, has been arrested 15 times and has been convicted 13 times for various misdemeanors. Since 2000, respondent has been convicted of criminal possession of a controlled substance four times, criminal trespassing, menacing, fare evasion, and harassment. In addition, seven bench warrants have been issued for respondent’s failure to appear for scheduled court dates and he was convicted in 1999 of criminal contempt for failing to obey a judge’s order. Currently,respondent’s license is suspended until November 16, 2006. Respondent’s license was also suspended for six monthsin 2003 and in 1999. While respondent’s criminal history is generally one of misdemeanor offenses, it shows respondent’s unwillingness to obey lawful authority. This general lawlessness enhances the risk to public safety because it indicates a strong possibility that respondent will continue to drive while impairedand/or while his license is suspended.

ORDER

The Department is entitled to retain the seized vehicle.

Alessandra F. Zorgniotti

Administrative Law Judge

June 30, 2006

APPEARANCES:

VIKRANT PAWAR, ESQ.

Attorney for Petitioner

THE LEGAL AID SOCIETY

Attorney for Respondent

BY: ILISSA BROWNSTEIN

[1] Pursuant to my request, the Department provided a blank Vehicle Seizure Form post trial which I have placed into evidence as ALJ Exhibit 1.

[2] Detective Gonzalez used an earlier version of the form, created in February 2005, which has a “Vehicle Seizure Checklist” and boxes for the officer to indicate that he has performed that task. The most recent form, revised in March 2006, has the same “Vehicle Seizure Procedure” check list but without the check-off boxes (ALJ Ex. 1).