1
Police Dep’t v. Chase
OATH Index No. 185/08, mem. dec. (July 23, 2007)
Petitioner is entitled to retain the seized vehicle as the instrumentality of a crime pending the outcome of 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 -
MILTON CHASE
Respondent
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MEMORANDUM DECISION
JOAN R. SALZMAN,Administrative Law Judge
Petitionerbrought 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,Milton Chase,is the registered owner of thevehicle. His son, Ramone Chase, was the driver of the car at the time of the arrest in this matter (Pet. Exs. 1-3, 5). 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 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 1997 Nissan Maximaat issue,Property Clerk voucher number B128533, was seized by the Department on May 13, 2007,in connection withRamone Chase’s arrestfor possession of a loaded gun (Pet. Exs. 1-3, 7). He was arraigned on the charge of criminal possession of a weapon in the second degree, in violation of Penal Law section 265.03, a felony (Pet. Ex. 3). Respondent’s demand for a hearing was received by the Department on July 9, 2007 (Pet. Ex. 7), and a hearing was timely scheduled for,and held on, July 19, 2007. Ramone Chase did not attend the hearing because he was incarcerated. Milton Chase appeared at the hearing pro se. Before proceeding, I explained the hearing procedures to him and informed him on the record that he had a right to have an attorney represent him at the hearing.[1] He lives in Delaware and came to New York expressly for the hearing. When he said he had not previously sought counsel and could not afford an attorney, I inquired as to whether he would like to request an adjournment to speak to Legal Aid or to a private New York law firm that handles vehicle retention hearings on a pro bono basis, or at least take a break to think about whether he wanted to secure the services of an attorney. Respondentdeclined to delay the hearing in any way. He considered his options and stated clearly that he wanted to proceed with the hearing without an attorney, and the hearing went forward.
Respondent argued that the gun found in the car did not belong to his son, that the car the police described as gold did not match his car, which, he stated, is tan, that he did not give his son specific permission to use the car on the night of the arrest, and that, in effect, he is the innocent owner of the car who should have it returned on that basis. I have considered all the evidence and the arguments of both sides, and concludethat notwithstanding respondent’s asserted defenses, the Department has met its burden of proof by a preponderance of the evidence under the Krimstock Order and is entitled to retain the vehicleat this juncture.
ANALYSIS
The Department seeks to retain the seized vehicle as the instrumentality of a crime pending the outcome of a 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 either to protect the public safety or to ensure its availability for a judgment of forfeiture. Krimstock Order ¶ 2; Canavan, 1 N.Y.3d at 144-46, 770 N.Y.S.2d at 286. In these truncated, administrative vehicle retention hearings, due process of law 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.
The Department’s documentary evidence showsthat on May 13, 2007, arresting officer Tony Brown responded to two 911 calls, identified as “job” numbers N02504 and N02525, at approximately 4:00 a.m. The callers told police that the driver of a gold Maxima was shooting a gun at the corner of Charles Avenueand Port Richmond Avenue in Staten Island. When the officer, responding to a radio dispatch, arrived at the location described, he observed a gold Maxima at that location, matching the description conveyed in the dispatch. Ramone Chase identified himself as the owner of the car and gave the police permission to search it. Upon opening the right rear door, officer Louis Contino saw the butt of a firearm inside the right rear pouch of the passenger seat. The gun was a .45 caliber Ruger semi-automatic pistol containing five live, .45 caliber bullets inside the magazine and one such bullet in the chamber. As two other men, Harvey Miller and Harold Thomas, were walking towards the car, Ramone Chase told officer Contino that Miller and Thomas had been riding in the passenger seats of the car. All three men were arrested (Pet. Exs. 1-3).
Respondent argued that the description of the vehicle did not match that of his Maxima because his Maxima is tan, not gold. He submitted Aamco automobile repair bills dated May 1 and 8, 2007, showing tan as the color of the car (Resp. Ex. A).
For purposes of this preliminary proceeding, I find that the discrepancy respondent raised as to the exact color of the vehicle to be insufficient to rebut the Department’s proof of the first prong of the Krimstock analysis. In the darkness at 4:00 a.m., the time of the arrest, the officer found what he called a gold Maxima, the same color and model of Nissan car reported at the same location in the two 911 calls reporting shots fired, and the officer at the time of arrest consistently described the car as goldin the contemporaneous, computerized complaint report (Pet. Ex. 2). Although there is what appears to be a typographical error in the vehicle identification number listed in the arrest report (the sixth of seventeen digits, a “2,” is transposed to read as a “Z”),the vehicle identification number (the “VIN”) otherwise matches respondent’s car and there is no doubt here that the vehicle seized is the same car that is registered to respondent at his address in Delaware. The computerized motor vehicle registration record does not provide the color of the vehicle (Pet. Ex. 5). I find that respondent’s car did match the detailed description in the 911 calls and the dispatch concerning agold Maxima at the specified street cornerin Staten Island closely enough to justify the officer’s response to the call and approach of this car, in the darkness at a time when the difference in appearance between gold and tan color was likely insignificant,at the veryaddress conveyed in the radio dispatch. Respondent's son consented to the search. The Department’s evidence is thus sufficient to establish reasonable suspicion for the stop and probable cause for the respondent’s arrest. Therefore, I find the Department has met its burden under the first prong of the Krimstock Order. See People v. Sanchez, 216 A.D.2d 207, 629 N.Y.S.2d 215 (1st Dep’t), leave to appeal denied, 87 N.Y.2d 850, 638 N.Y.S.2d 609 (1995) (police acted on reasonable suspicion in removing occupants of car where radio description indicated that white or silver van involved in recent shooting only blocks away was used as getaway car by two armed individuals where police observed that at least one of two occupants in car matched description in dispatch and car was later determined to be, in fact, light blue; observation of handgun in plain view in front seats supplied probable cause for arrest); Police Dep’t v. Van Rossum, OATH Index No. 2115/07, mem. dec., at 2-3 (June 12, 2007) (vehicle matched description given to police of vehicle that was involved in a shooting) (citing, inter alia,People v. Ballard, 16 A.D.3d 697, 794 N.Y.S.2d 60 (2d Dep’t), leave to appeal denied, 5 N.Y.3d 759, 801 N.Y.S.2d 253 (2005); see also Police Dep’t v. Riviera-Clinton, OATH Index No. 1168/07, mem. dec. at 2 (Feb. 15, 2007).
The second prong requires that the Department establish a likelihood of success in a subsequent civil forfeiture action. The Department must prove that it is more likely than not that the seized vehicle was used in furtherance of, or as the instrumentality of, a crime. Admin. Code § 14-140(e)(1); seePolice Dep’t v. Rice, OATH Index No. 1709/05, mem. dec. at 7-8 (Apr. 21, 2005).
Respondent argues that the Department’s evidence fails to establish that his son possessed the firearms that were recovered from the car. The Department’s uncontroverted evidence shows that it received emergency calls stating that shots were fired by the driver of the vehicle, that Ramone Chase was the driver, and that a loaded gunwas recovered from inside the car. These facts are sufficient to establishthat the vehicle was used in furtherance of, or as the instrumentality of, a crime.
Respondent’s argument that the gun likely belonged to the passengers because his son told him the gun was not his, and that the Department failed to prove that Ramone Chase actually possessed the gun,is unavailing because of the applicable legal presumption: “The presence in an automobile . . . of any firearm . . . is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon . . . is found . . .” Penal Law § 265.15(3) (Lexis 2007). Riviera-Clinton, OATH 1168/07, mem. dec. at 3. As noted, the uncontroverted evidence establishes that respondent’s son occupied the car and told police he owned it, and thata firearm was recovered from the car. Such proof is presumptive evidence that Ramon Chasepossessed aloaded gun. The respondent offered no evidence, other than his son’s hearsay denial of ownership. Although hearsay is admissible in these proceedings and the administrative law judge may consider “such hearsay and other evidences as that judge may consider reliable,” Krimstock Order ¶ 2, I find this uncorroborated, self-interested statement of respondent’s son insufficiently reliable to rebut the legal presumption of ownership for purposes of this proceeding. Even respondent stated, immediately after conveying his son’s denial that the gun belonged to him, that respondent does not believe everything his son tells him. Nor did respondent challenge the legality of the search of the car, which, based on the evidence before me, was based on consent and lawful. Therefore, I find the Department has met its burden under the second prong of the Krimstock Order.
As noted in Police Department v. Pramanik, OATH Index No. 1751/07, mem. dec., at 5 (Apr. 10, 2007), the “innocent owner defense” can be raised where the vehicle owner is not present when the driver is arrested and the vehicle is seized. Respondent was not present at the arrest of his son. The Department bears the burden of proving that respondent is not an innocent owner. See Property Clerk, New York City Police Dep’t v. Pagano, 170 A.D.2d 30, 573 N.Y.S.2d 658 (1st Dep’t 1991). The Administrative Code provides that anyone who used property to commit a crime “or permitted or suffered the same to be [so] used . . . shall not be deemed to be the lawful claimant entitled to any such . . . property.” Admin. Code § 14-140(e)(1); see also Krimstock, 306 F.3d at 48, n.9. The courts have concluded that a statute that holds a person liable for having permitted or suffered a certain activity may be enforced only against one who “knew, or should have known,”that the illegal activity would take place. Pagano, 170 A.D.2d at 35, 573 N.Y.S.2d at 661.
The Department has met the burden of showing that respondent is not an innocent owner entitled to the return of his car. Although respondent came across as an earnest, forthright and caring father who shared the use of this Maxima with his wife and son, the Department was able to show that respondent does not qualify as an “innocent owner” in the eyes of the law. Respondent conceded that he knew that his son had very recently been convicted of criminal possession of a narcotic drug in the 4th degree, pursuant to a guilty plea in August 2006 (Pet. Ex. 4), and that his son’s felony conviction in that matter involved the very same Maxima owned by respondent that is at issue here. Despite this knowledge, respondent allowed his son ready access to the car on May 13, 2007. Respondent indicated that his son was in prison on the2006 conviction until December 2006, and was living with him in early 2007. Respondent then sold his own house in Staten Island and moved to Delaware in April 2007 with his wife and younger son, Robert. However, in May 2007, respondent came back to Staten Island to take care of his ailing mother, who had broken her hip. On the night of May 13, 2007, respondent was tired and had fallen asleep. He testified that he did not see his son Ramone come in that night, that neither respondent nor his mother answered the door (because she was injured and respondent was sleeping), that Ramone did not have a key to his grandmother’s house, but that respondent’s brother was in the house and must have let Ramone in. While respondent was sleeping, Ramone took the keys to the Maxima from the living room table, where respondent had left them in the open. Despite his knowledge of his son’s recent, specific felony conviction and incarceration for possession of illegal narcotics in this very car, and his son’s underlying arrest for related charges involving a weapon allegedly found in the car and alleged speeding and tailgating in that same incident, all of which charges were satisfied by the guilty plea to the felony drug charge, respondent testified candidly that had his son Ramone sought his permission to use the car, respondent probably would have allowed him to use it on May 13, 2007, and that he let his son use it whenever he asked for it. When Ramone used the car, he would put gas in it. Respondent added that he did not believe everything his son told him, that if his son “make the bed he gotta lie in it,” and that although his son had associated on May 13thwith two “guys,” one of whom had a gun, his son was not “stupid” enough to possess a gun because that would violate the terms of his parole. But in the same breath, respondent also indicated that his son was in jail because he violated his parole on May 13, 2007, by being out after his curfew that night.
Although respondent appeared to be truthful and generous with his son, perhaps overly so, respondent is not an “innocent owner” entitled to the return of the car in these circumstances because he knew that his son had committed a felony and served prison time for using this very car in a crime before. Respondent was admittedly on notice of that record and yet gave his son liberal use of the car. This was the kind of “knowledgeable acquiescence” the court in Pagano ruled would lead to forfeiture where there is a “real nexus with the criminal use of property.” Pagano, 170 A.D.3d at 36, 573 N.Y.S.2d at 661. That nexus has been established here by respondent’s clear awareness of his son’s criminal use of this car not long before the arrest at issue here.
Respondent’s predicament is terrible, and it is regrettable that he must suffer the consequences of his son’s alleged second criminal use of the car, but under the law, based on his specific knowledge of his son’s recent criminal history with a direct connection to this car, respondent is not entitled to the return of the car pendente lite.
The third prong of the Krimstock Order requires the Department to demonstrate that it is necessary to retain the careither to protect the public safety or to ensure its availability for a judgment of forfeiture. This tribunal has rejected the argument that retention is necessary to preserve assetvalue because the Department has not established a procedure for posting of a bond, or cashalternative, for seized vehicles. See, e.g., Police Dep’t v. Junior, OATH Index No. 1134/06, mem. dec. at 4-5 (Feb. 8, 2006), citing Krimstock, 306 F.3dat 70. Therefore, the remaining issue is whether releasing the car to respondent presentsa “heightened risk” to public safety. Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. at 2-5 (Feb. 24, 2004).[2] Heightened riskhas beenestablished by the circumstances of the crime itself. 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 misdemeanorssuch as menacing and the criminal possession of a firearm); Police Dep’t v. Mohammed, OATHIndex No. 1159/04, mem. dec. at 3-4 (Mar. 2, 2004) (vehicle used for multiple sales of illegalfirearms).
The nature and circumstances of the crime allegedly committed by respondent’s son, including reports of shots fired by his son, and the son’s ready access to the car, as respondent put it, “whenever he asked to drive it,”are such that returning the car to respondent would pose a heightened risk to public safety. Respondent’s son had easy access to the car; indeed, respondent testified that he would allow his son to use it at will. Ramone Chase’s prior felony conviction upon his guilty plea to felony drug possession in this very car, together with the charge of criminal possession of a loaded gun here, render it impossible to find for respondent on this third prong of the Krimstock analysis. The evidence before me shows dangerous conduct that evinces a reckless disregard for the safety of others. The police recovered a loaded firearm from the respondent’s car after multiple shots were fired, likely by his son, from the car. The felony crime for which respondent’s son was charged (Pet. Ex. 5) is a serious one -- criminal possession of a loaded firearm in the second degree, which falls underTitle P of the Penal Law,“Offenses against Public Safety.” Respondent’s son has been indicted not only for possessing a loaded firearm, but with possessing the loaded firearm with the intent to use it unlawfully (Pet. Ex. 3). Therefore, I must conclude, notwithstanding the difficulties respondent has encountered in his efforts to care for and help his family and my sympathy for his plight,that returning the car to respondent would present a heightened risk to public safety.