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Police Dep’t v. Haskell

OATH Index No. 484/08, mem. dec. (Oct. 4, 2007)

Petitioner is not entitled to retain respondent’s vehicle pending the outcome of civil forfeiture action as petitioner did not establish that probable cause existed for the arrest of the vehicle’s driver or meet its burden of showing that non-driver owner was not an innocentowner.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT
Petitioner

-against-

LOIS MARIE HASKELL

Respondent

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MEMORANDUM DECISION

ROBERTO VELEZ, Chief 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 14140 of the Administrative Code. Respondent Lois Marie Haskell is the registered and titled owner of the seized car. Her daughter’s boyfriend,Luis Cortez, was the driver of the
seized car. 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 6, 2005. 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 2003 Mitsubishi Lancer, property clerk voucher #B137701, which was seized by the Department on July 27, 2007, in connection with Mr. Cortez’s arrest for criminal possession of a weapon in the second degree (N.Y. Pen. Law § 265.03(2) (LEXIS 2007)). Ms. Haskell’sdemand for a hearing was received on August 28, 2007, and trial was scheduled for September 6, 2007. On September 6, the matter was adjourned for Ms. Haskell to obtain counsel and ultimately heard on September 27, 2007. On that date, Ms. Haskell appeared with counsel and contested the Department’s petition. At the end of the hearing, I held the record open for the District Attorney’s release, which was submitted to me on October 1, 2007, at which point the record was closed. Mr. Cortez did not request a hearing nor did he appear at the hearing. As set forth below, I conclude that the Department is not entitled to retain the vehicle.

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 it 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. KrimstockOrder, as amended December 6, 2005,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 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’s case consisted of documentary evidence, which, although hearsay in nature, was properly admissible (Krimstock Order at 3), and which I find to be reliable and credible. The Department also called Ms. Haskell as a witness, who maintained she was an innocent owner against whom the Department should not have the right to retain the vehicle. The Department’s documentary evidence established that Mr. Cortez was arrested on July 27, 2007, while driving from Pennsylvania to New York Cityin Ms. Haskell’s Mitsubishi Lancer, with twenty-five handguns in the vehicle (Pet. Ex. 1; Pet Ex. 7). It did not, however, provide any additional information concerning the circumstances of the stop and arrest beyond the fact that it was apparently pursuant to an official investigation being conducted by the Department’s Firearms Investigation Unit (Pet. Ex. 7).

Ms. Haskell, aPennsylvania resident, testified that Mr. Cortez, who is her daughter’s boyfriend andwho together have an eight-month old child, has lived in her house since January 27, 2007. At the time of his arrest, Mr. Cortez was employed by a roofing company. Mr. Cortez normally uses either his brother’s van or her daughter’s car, but on July 27, neither was available. Ms. Haskell’s daughter was using her car to go to work and drive their baby to daycare, while, according to Mr. Cortez, the van was not working. Mr. Cortez told Ms. Haskell that he needed to do some errands and asked if he could borrow her car. Ms. Haskell agreed, but told Mr. Cortez that he would have to pick her up from work later in the afternoon. At 4:30 p.m., Ms. Haskell’s daughter instead picked her up from work, informing her that Mr. Cortez had been arrested in New York and her car seized. At the hearing, Ms. Haskell stated that this was the first time that Mr. Cortez had ever driven her car and she did not have any idea that Mr. Cortez would be using it to transport handguns into New York City. Further, she did not have any reason to believe at that time that Mr. Cortez owned any guns. I found Ms. Haskell’s testimony to be credible and reliable.

As a preliminary matter, the Department sought to call Ms. Haskell’s daughter, Christina Haskell, to testify as to Mr. Cortez’s use of Ms. Haskell’s car and Mr. Cortez’s criminal history. However, Christina Haskell refused to testify. The Department requested that I draw an adverse inference from her refusal to testify, which Ms. Haskell’s attorney objected to. I decline to draw an adverse inference in this situation. While the inference in question is commonly referred to as an “adverse” or “negative” inference, such labels are to some extent misnomers. Ms. Haskell’s daughter’s refusal to testify “does not permit the trier of the fact to speculate about what [her] testimony might have been nor does it require an adverse inference. It does, however, allow the trier of fact to draw the strongest inference against [her] that the opposing evidence in the record permits.” Comm’r of Social Services v. DeG., 59 N.Y.2d 137, 141, 463 N.Y.S.2d 761,763 (1983). Here, however, Christina Haskell is not a party to this proceeding, nor has the Department offered any evidence from which I could infer that facts favorable to the Department would have come out had Christina Haskell testified.

With respect to the first prong of the Krimstock Order, probable cause for the arrest, the Department submitted copies of Mr. Cortez’s arrest report (Pet. Ex. 1) and the criminal court complaint against him (Pet. Ex. 7). The arrest report states, “At t/p/o deft. was knowingly in poss. of 25 handguns w/out perm. and/or authority.” The criminal court complaint goes into a little more detail as to the circumstances of the stop, explaining, “pursuant to an official investigation conducted by the New York City Police Department Firearms Investigations Unit (“FIU”), defendant was observed in possession of 25 firearms in that the firearms were inside a vehicle driven by the defendant . . . .” However, neither the arrest report nor criminal complaint contain details,or any information for that matter, relating to the Department’s investigation, which the Department alleges served as the basis for the police to approach and search Ms. Haskell’s vehicle.

As part of the Department’s burden of proving probable cause for the arrest, it is required to establish how the arresting officers “lawfully came to learn of the vehicle’s illegal contents.” Property Clerk of the Police Dep’t of the City of New York v. Burnett, Index No. 04/400955, at 5 04/400955, at 5 (Sup. Ct. N.Y. Co., July 19, 2004), aff’d, 22 A.D.3d 201, 801 N.Y.S.2d 592 (1st Dep’t 2005); See alsoPolice Dep’t v. Shelton, OATH Index No. 1684/06, mem. dec. at 2 (May 2, 2006) (vehicle released where, despite respondent’s arrest for possession of a loaded firearm, the record contained no facts that established the nature of the alleged traffic violation that led officers to approach and search the vehicle); Police Dep’t v. Henriquez, OATH Index No. 1055/06, mem dec. at 2 (Jan. 9, 2006) (arrest report stating, “At T/P/O deft. was in possession of cocaine,” was insufficient to establish reasonable suspicion that led the officers to approach and search vehicle); Police Dep’t v. Mark, OATH Index No. 843/06, mem. dec. at 2 (Dec. 15, 2005) (vehicle released where, despite respondent’s arrest for possession of a loaded firearm, the record contained no facts that established what information was communicated in radio run that led officers to approach and search the vehicle); Police Dep’t v. Mackey, OATH Index No. 1968/04, mem. dec. at 2 (May 26, 2004) (vehicle released where there was no evidence how the arresting officer came to know that the seized vehicle contained an unlicensed firearm). In this case, neither the arrest report nor criminal complaint establish any reasonable suspicion that might have led the arresting officers to approach respondent’s vehicle or to conduct a search. Having failed to establish the basis for the stop and the search, the Department fails to supply the requisite proof of probable cause to arrest. I therefore find the Department’s evidence insufficient to establish that probable cause existed for Mr. Cortez’s arrest, the first prong of the Krimstock Order.

Further, the Department also failed to establish the second and third prongs of the Krimstock Order. Ms. Haskell correctly asserts that she is an innocent ownerand therefore entitled to the return of her car. Ms. Haskell credibly testified that she purchased the vehicle in 2002, four years before she met Mr. Cortez, and that July 27, 2007, was the first time she let Mr. Cortez drive her car. She submitted copies of an October 9, 2002, purchase order and retail installment contract for the seized vehicle, with her name listed as the buyer (Res. Ex. F), and the seized vehicle’s registration, listing her as the registered owner (Res. Ex. G), all of which I find establish that Ms. Haskell is the owner of the vehicle, and not Mr. Cortez. See Police Dep't v. Torres, OATH Index No. 1412/06, mem. dec. at 3-4 (Mar. 31, 2006) (finding driver who did not contribute financially to purchase of vehicle, whose name was not listed on the registration, and who did not use the vehicle on any regular basis was not a beneficial owner).

Where the vehicle’sowner is different than the driver who was arrested and from whom the vehicle was seized, as is the situation here, the owner can assert an “innocent owner” defense. Thereafter, the Department bears the burden of proving that Ms. Haskell 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). To meet this burden, the Department must show that Ms. Haskell “permitted or suffered” the illegal use of the property; that is, that she knew, or should have known, that her vehicle would be used in furtherance of a crime. Id. at 36, 573 N.Y.S.2d at 662 (finding titled owner was innocent owner where there was no evidence that driver had previously engaged in criminal behavior involving a vehicle, despite driver’s non-criminal traffic violations). Here, this burden was not met, as I find that the Department failed to prove that Ms. Haskell knew or should have known that Mr. Cortez would engage in the illegal activities for which he was arrested. The Department did not present any evidence that Mr. Cortez has a criminal record (see Pet. Ex. 2), meaning that Ms. Haskell cannot be charged with foreseeing that Mr. Cortez would use her vehicle as part of some illegality. SeePolice Dep't v. Dunn, OATH Index No. 150/07, mem. dec. at 4 (Sept. 14, 2006)(noting Department produced no evidence that driver had committed past criminal acts with a vehicle or that owner had knowledge of any such acts). Therefore, as Ms. Haskell is an innocent owner of the seized vehicle, the Department has not established that it is likely to succeed at the forfeiture hearing, the second prong of the Krimstock Order. See, e.g.,Police Dep't v. Perez, OATH Index No. 2422/07, mem. dec. at 3 (July 27, 2007) (releasing vehicle because Department could not establish that it was likely to succeed at the forfeiture proceeding where it could not disprove innocent owner defense, even though vehicle was clearly an instrumentality of the crime). Likewise, releasing the vehicle to Ms. Haskell would not pose a heightened risk to the public, the third prong of the Krimstock Order. See, e.g., Police Dep't v. Torres, OATH 1412/06, mem. dec. at 3 (releasing vehicle to innocent owner even though releasing vehicle to driver charged with criminal possession of a loaded firearm would have posed a heightened risk). Ms. Haskell, who has been gainfully employed since 1984 with a nursery school (Res. Ex. C), appearedtrulydistressed that her car was used in the way it was by Mr. Cortez and indicated she would not let him use it again or move back into her house.

As the Department has failed to prove that there was probable cause to arrest Mr. Cortez or that Ms. Haskell is not an innocent owner of the seized vehicle, the Department is not entitled to retain the vehicle pending the forfeiture action.

ORDER

The Department is not entitled to retain the seized vehicle.

Roberto Velez

Chief Administrative Law Judge

October 4, 2007

APPEARANCES:

JOONG-SIK CHAE, ESQ.

Attorney for Petitioner

ALIREZA DILMAGHANI, ESQ.

Attorney for Respondent