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Police Dep’t v. Arnold

OATH Index No. 377/07, mem. dec. (Aug. 22, 2006)

Petitioner failed to prove its entitlement to retain a seized vehicle as the instrumentality of a crime pending the outcome of a civil forfeiture action. Relying largely upon respondent’s conviction for disorderly conduct and unproven charges of more serious conduct, petitioner did not meet its burden of proving likelihood of success at civil forfeiture proceeding. Petitioner also failed to prove that impoundment of the vehicle was necessary to insure its availability for a judgment in a civil forfeiture action.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

LEONARD ARNOLD

Respondent

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MEMORANDUM DECISION

KEVIN F. CASEY, Administrative Law Judge

Petitioner, the Police Department, brought this action 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, Leonard Arnold, owns the vehicle and was driving it at the time it was seized. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), amended order and judgment (S.D.N.Y. Jan. 22, 2004) (the “Krimstock Order”), as amended December 23, 2004. See 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 Department seized the vehicle, a 2006 Mazda 3, property clerk voucher number B119714V, on July 9, 2006, following respondent’s arrest for criminal possession of a weapon. Petitioner received a demand for a hearing on August 8, 2006. Petitioner scheduled a hearing at this tribunal for August 17, 2006, and served notice of the hearing on respondent. On that date, respondent appeared without counsel and contested the Department’s petition.

For the reasons below, I conclude that the Department is not entitled to retain the vehicle.

ANALYSIS

There is no dispute that respondent was arrested on July 9, 2006, and charged with a serious crime. But the ensuing criminal prosecution ended with respondent’s guilty plea to disorderly conduct, a violation. Petitioner maintains that, despite the relatively low-level conviction, respondent is guilty of more serious criminal conduct. However, petitioner’s evidence failed to back up that accusation.

A release from the District Attorney’s Office states that it no longer needs the vehicle as evidence (Pet. Ex. 4). Thus, the Department claims that the vehicle was seized as the instrumentality of a crime, rather than as evidence in a criminal case. To retain the vehicle as the instrumentality of a crime, petitioner bears the burden of proving 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 forfeiture of the vehicle; and (iii) that it is necessary that the vehicle remain impounded pending final judgment in the forfeiture action. Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286; KrimstockOrder, 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 70; see Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286.

No police officers testified. Nor was a criminal court complaint or property clerk voucher offered in evidence. Instead, petitionerrelied primarily upon three computer-generated documents: an arrest report, a police officer’s complaint report, and respondent’s criminal history (Pet. Exs. 1, 2, and 5).

According to the arrest report, respondent and three others were found in possession of a loaded weapon. The arrest location is listed as the “rear of 2801 Dewey Avenue” and the report refers to two vouchers, one for the handgun and the other for the vehicle (Pet. Ex. 1). Similarly, the complaint identified the time and place of occurrence as1:10 a.m. on a public sidewalk and alleged that respondent and three others were “found to be in possession” of a loaded firearm. The complaint refers to three evidence vouchers: the handgun, the vehicle, and a gravity knife (Pet. Ex. 2). Respondent was arraigned on a misdemeanor charge of criminal possession of a weapon in the fourth degree, Penal Law. § 265.01(1) (Pet. Ex. 4). He was convicted, upon a guilty plea, of disorderly conduct, Penal Law § 240.20, and sentenced to a conditional discharge (Pet. Ex. 2).

To fill in gaps in the proof, petitioner called respondent as a witness. Respondent testified that he had been driving some friends to their homes. He had been socializing with them after he got off from work as a security guard the previous day. Shortly after midnight, the police stopped respondent’s car and ordered all of the occupants out. During an ensuing search, the police recovered a pocket knife from respondent. Respondent was never issued a traffic ticket and he did not know why the police stopped his car. He did not know anything about a handgun in his car and he first learned of that allegation when he was arraigned in court the next day. During the course of his plea allocution, respondent acknowledged that he possessed a pocket knife and admitted that he was guilty of disorderly conduct.

Petitioner offered no evidence concerning the basis for the stop of respondent’s car or the circumstances leading to his arrest. Instead, petitioner claimed that respondent had waived his right to challenge probable cause for the arrest by pleading guilty to disorderly conduct. This tribunal has repeatedly held that a criminal conviction may preclude the challenges to the lawfulness of the arrest as well as the merits of the criminal charge. See, e.g., Police Dep’t v. Balseca, OATH Index No. 103/07, mem. dec. at 3 (July 25, 2006) (conviction for weapons possession). Those cases are based upon principles of collateral estoppel. See, e.g., Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. at 2 (Feb. 24, 2004).

But there are limits to that doctrine. For example, in Gilberg v. Barbieri, 53 N.Y.2d 285, 441 N.Y.S.2d 49, 52 (1981), the Court held that conviction for harassment could not be used to preclude the defendant from disputing the merits of acivil suit for assault. The Court emphasized that collateral estoppel is a “flexible doctrine which can never be rigidly or mechanically applied.” 53 N.Y.2d at 292, 441 N.Y.S.2d at 51. Thus, application of the collateral estoppel doctrine involves a realistic inquiry into the nature of the prior litigation. Id.

Here, it is questionable what, if any, preclusive effect should be given to respondent’s conviction for the violation of disorderly conduct. Respondent did not plead guilty to a driving-related offense or unlawful possession of a weapon or other contraband. Instead, he pleaded guilty to a violation in exchange for an agreed-upon sentence of a conditional discharge. This disposition sheds little, if any, light upon the lawfulness of the police action in stopping the car and searching its occupants.

Even assuming that respondent waived his right to challenge the probable cause for the arrest that led to the seizure of his vehicle, petitioner failed to establish the second and third prongs of Krimstock. Under the second prong, likelihood of success at a forfeiture proceeding, petitioner must prove that it is more likely than not that respondent’s vehicle was used in furtherance of, or as the instrumentality of, a crime. Admin. Code § 14-140. Disorderly conduct is a violation, rather than a misdemeanor or a felony. Thus, it is not a crime. Because the burden of proof is less demanding in a civil forfeiture proceeding, petitioner maintains that respondent was, in fact, guilty of the more serious criminal charge of criminal possession of a weapon. Although petitioner might present such evidence at a civil forfeiture proceeding, the proof it presented here was insufficient.

Other than unproven hearsay that respondent and three others were found in possession of a loaded firearm, petitioner offered no reliable evidence that respondent possessed a gun. In his testimony, respondent credibly denied that he possessed a gun or was aware of any gun.

Recognizing the scant evidence regarding gun possession, petitioner stressed that respondent admitted, in his plea allocution, that he possessed a knife. Petitioner argued that this admission, coupled with a report that the police recovered a “gravity knife,” proved that respondent is guilty of criminal possession of a weapon in the fourth degree. See P.L. §§265.00(5) and 265.01(1) (unlawful to possess a gravity knife, defined as any knife that has a blade that is released by gravity, or centrifugal force, and when released is locked in place by a button, spring, lever, or other device). But respondent did not admit to possession of a gravity knife; he testified that he possessed a pocket knife.

Notably, petitioner did not introduce the property clerk voucher or the minutes of the guilty plea to clarify this issue. Indeed, petitioner called respondent as a witness, but did not askhim to describe the knife. Although petitioner may present stronger proof at the forfeiture proceeding, the meager evidence it offered at this stage did not demonstrate a likelihood of demonstrating that respondent used his car in furtherance of a crime.

Petitioner also failed to demonstrate that it is necessary to retain the vehicle as required under the third prong of Krimstock. In the past, this prong was established where petitioner proved that there was a danger that the respondent would dispose of the vehicle prior to the forfeiture proceeding or where the respondent posed a heightened risk to public safety. Police Dep’t v. Tripp, OATH Index No. 148/06, mem. dec. at 7 (July 19, 2005). More recently, however, this tribunal has rejected the argument that retention is necessary to preserve asset value because the Department has not established a procedure for posting of a bond, or cash alternative, for seized vehicles. See, e.g., Police Dep’t v. Junior, OATH Index No. 1134/06, mem. dec. at 4 (Feb. 8, 2006), citing Krimstock, 306 F.3rd at 70.

Thus, the only remaining question is whether returning the vehicle to respondent presents a heightened risk to public safety. Commission of a crime, without more, is not enough to satisfy this requirement. See Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. at 5 (Feb. 24, 2004) (commission of a misdemeanor, driving while intoxicated, does not prove heightened risk to public safety); Police Dep’t v. Fung, OATH Index No. 1195/05, mem. dec. at 6 (Jan. 27, 2005) (“heightened risk” to public safety not shown, despite arrest for reckless endangerment and reckless driving). Petitioner often satisfies this requirement by presenting additional evidence concerning the nature of the offense or the background of the offender. See, e.g., Police Dep’t v. Olberding, OATH Index No. 283/05, mem. dec. (Aug. 9, 2004) (respondent passed through four red lights, was uncooperative during arrest, engaged in altercation with police, and had four prior convictions for driving while intoxicated).

Petitioner failed to prove that respondent presents a heightened risk to public safety. Despite the serious nature of the original charges, respondent was permitted to plead guilty to a violation and sentenced to a conditional discharge. The prompt and lenient disposition of this matter by the prosecutor, with the acquiescence of the criminal court judge, is a strong indication that they did not consider him to be a significant threat to the public. Although respondent was also convicted of committing a robbery more than a decade ago, that remote offense does not prove that he is a continuing threat. Similarly, respondent’s testimony did not always cast him in the most favorable light. For example, he admitted that his job as a security guard was off-the-books and he drank beer prior to his arrest. But such testimony did not show that he posed a heightened danger to the community. On the contrary, respondent’s candor bolstered his overall credibility. His credibility was further supported by evidence that the car is registered in his name and he shares insurance payments with his fiancé. The overriding impression from respondent’s demeanor and the substance of his testimony is that he earnestly hoped to recover his car, he had no intention of disposing of it prior to the forfeiture proceeding, and he did not pose a heightened threat to the public.

ORDER

The Department is directed to release respondent’s vehicle.

Kevin F. Casey

Administrative Law Judge

August 22, 2006

APPEARANCES:

SGT. LAWRENCE V. SISTA, ESQ.

Attorney for Petitioner

LEONARD ARNOLD

Respondent, Pro Se