-8-
Police Dep’t v. Montes
OATH Index No. 1372/06, mem. dec. (Mar. 14, 2006)
Motion to dismiss petition granted where petitioner failed to serve respondent with notice of right to request retention hearing at the time of the vehicle seizure and by mail within five business days thereafter, as required. Petitioner also failed to prove that it was necessary to retain the vehicle. Vehicle ordered released.
______
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against -
AWILDA MONTES
Respondent
______
MEMORANDUM DECISION
JOAN R. SALZMAN, Administrative Law Judge
The petitioner, the Police Department, brought this proceeding to determine its right to retain a vehicle, a 2003 Honda Civic (Voucher No. B073479), seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code (Pet. Exs. 5-7). Respondent, Awilda Montes, is the owner of the vehicle and holds both title and registration to the car (Pet. Ex. 4). 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).
Petitioner seized respondent’s vehicle on February 11, 2006, in connection with her arrest for operating a motor vehicle while intoxicated and for double parking, under various provisions of the Vehicle and Traffic Law, sections 1192(1), (2), (3), and 1200(d) (Pet. Exs. 1-3, 9). The criminal case remains pending. Following receipt of respondent’s demand for a hearing on February 23, 2006, petitioner scheduled the instant proceeding for March 9, 2006 (Pet. Exs. 6-8). Respondent, represented by counsel, appeared at the hearing and challenged petitioner’s right to retain the vehicle until such time as a civil forfeiture hearing is commenced.
PRELIMINARY ISSUE
At the outset of the hearing, respondent moved to dismiss the proceeding and for an order directing petitioner to return the car immediately because petitioner failed to serve her properly with a notice of her right to request a retention hearing at the time the vehicle was seized and by mail thereafter, as required by the Krimstock Order. I reserved decision on the motion and the hearing went forward. Upon consent of counsel, and in accordance with the Krimstock Order, paragraph 2, I allowed respondent to file a written motion to dismiss by March 10, 2006, and the Department to respond to the motion in writing the following business day, March 13, 2006, at which time the record was closed. Paragraph 3 of the Order is very specific about the notice requirements with which petitioner must comply upon seizing a defendant’s vehicle. That paragraph provides that
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. 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 Order, ¶ 3. The Order specifies the minimum contents of that notice, which must include a form which a respondent can submit to petitioner 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. Petitioner 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 petitioner to mail the form to the registered and/or title owner of the vehicle within five business days of the seizure.
Respondent 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 through her attorney in a conversation on or about February 17, 2006. Her counsel assisted her in obtaining a copy of the vehicle seizure form from petitioner. Respondent’s counsel represented that counsel promptly completed the form and posted it on or about February 17, 2006. There was some indication that the mailing may have been on February 20, 2006, but counsel insists in a solemn written representation dated March 13, 2006, that she mailed the notice on February 17th and did not delay while she and her client were investigating respondent’s rights. In the interim, between February 17 and 20, 2006, respondent, on advice of her counsel, went back to the precinct, on February 19, 2006, to try to retrieve the vehicle and learned only then that the Civic had been seized for purposes of forfeiture.
There is no dispute that petitioner received the demand for the hearing on February 23, 2006. Thereafter, petitioner scheduled the hearing for March 9, 2006, in compliance with the maximum period of ten business days from receipt of respondent’s demand set forth in paragraph 3 of the Krimstock Order. Despite the Department’s compliance with the requirement to schedule the hearing within ten business days after receipt of the hearing demand, respondent argues that the notice requirements of the Krimstock Order should be strictly construed and that the proper remedy for petitioner’s failure initially to serve a notice of the right to a retention hearing and a hearing demand form at the time of the vehicle seizure, and by mail thereafter, should be dismissal of the petition and an order directing the vehicle’s release. Respondent’s argument is consistent with the Krimstock Order and prior decisions of this tribunal.
In its response to the motion to dismiss, petitioner offers no proof that the Department served the requisite notice of the right to a forfeiture hearing by the two methods required by the Krimstock Order: by attaching the notice to the voucher provided to respondent at the time of seizure and by mailing such notice to respondent within five business days after the seizure. Nonetheless, the Department argues that respondent’s counsel’s efforts to obtain the form for demanding the hearing cured the utter failure of notice by the Department and that there was, therefore, no prejudice to respondent. The Department claims that respondent was not prejudiced because she could have mailed the hearing demand form on February 17, 2006, rather than having it mailed on or about February 20, 2006, the following business day, by her attorney. Whether respondent’s counsel mailed the demand on February 17th or 20th, or it was post-marked February 21, 2006 (which was the subject of some speculation by both sides), was of no moment. The delay here cannot be charged to respondent or to her conscientious attorney. It was not until Sunday, February 19, 2006, more than five business days after the seizure, that respondent, on advice of counsel, was able to ascertain her rights. The Department’s contentions are not a correct reading of the Krimstock Order, nor of the cases of this tribunal interpreting the Order’s notice requirements. The vigilance of respondent’s counsel does not relieve the Department in this case of its obligations to supply the requisite official notice to respondent.
Petitioner has utterly failed to comply with the Krimstock notice requirements. In these circumstances, the motion to dismiss should be granted. In Police Dep’t v. Sica, OATH Index No. 1139/06, mem. dec. (Jan. 26, 2006), Judge Kramer found that dismissal was the appropriate remedy where respondent’s testimony that he did not receive proper notice was credited over ambiguous documentary proof of service from the arresting officer. In Sica, the Department produced the arresting officer’s copy of the checklist for noting the time and method of service of the vehicle seizure form, which checklist had omissions and discrepancies. Here, the Department produced no such additional evidence in response to the motion to dismiss. Indeed, the vehicle seizure and hearing demand form relied upon by the Department in its case in chief shows a telecopy receipt by the Legal Aid Society (consistent with respondent’s contention that she was able to demand the hearing only because her counsel contacted the Department and requested the form), and bears a blank “Acknowledgment of Service” entry that states in what appears to be pre-printed bold lettering: “THIS FORM WAS NOT SERVED AT SEIZURE” (Pet. Ex. 6).
Thus, there was no proof of service of notice at all here, and the delays caused by the failure of notice here were longer than those noted in Sica (hearing was held 15 business days and 25 calendar days from seizure there, compared with 19 business days and 26 calendar days here). I credited respondent’s assertions that she never received the vehicle seizure form, either when she was arrested or subsequently in the mail, and that she actually learned of her Krimstock rights only after speaking with her attorney. Respondent gave straightforward testimony on this point. She testified, and there was no indication to the contrary, that she cooperated in all respects with the arresting officer throughout the evening, by, for example, submitting to the sobriety test at the precinct. Her level of intoxication or impairment, as measured by the breathalyzer, was .098 per cent alcohol in the blood, only marginally over the statutory percentage required to show intoxication per se. Vehicle and Traffic Law § 1192(2) (Lexis 2006). Thus, there was no reason to think she was so inebriated that she could not be trusted to recall the events of the evening.
Moreover, respondent testified credibly that she needed her car, not only to get to work as a surgeon’s assistant, a responsible job, which requires her to put in night-time hours “on call,” but also to ferry her children to day care and to fulfill her other family obligations to her mother and grandmother. She was, therefore, properly concerned about getting the Civic back as quickly as possible and had every incentive to demand the hearing once she was able to figure out her rights. Once she learned through her counsel six days later what the process was, she acted diligently to demand a hearing so that she could seek the return of her car. The arresting officer did not testify at the hearing, nor did the Department make any effort to show proof of service in its post-hearing submission. Despite this tribunal’s inquiry to counsel for the Department at the close of the hearing as to whether it wished a continuance under section 2-44 of the rules of the tribunal to call rebuttal witnesses, the Department declined to present further evidence. When weighed against respondent’s credible, in-person testimony, petitioner’s total lack of documentation fails to satisfy its burden of proof that it complied with the Krimstock Order with respect to providing essential notice to respondent of her rights.
I find that petitioner failed to comply with the initial notice requirements set forth in paragraph 3 of the Krimstock Order and the car should be returned to respondent on procedural grounds. See Sica, OATH 1139/06 (Jan. 26, 2006). Cf. Police Dep’t v. Tripp, OATH Index No. 148/06, mem. dec. (July 19, 2005) (motion to dismiss denied where petitioner failed to comply with the initial notice requirements, but respondent learned of his right to request a hearing through his attorney and requested such hearing within four business days of his arrest and actually had the hearing within ten business days of his arrest, in compliance with the earliest time frame provided by the Krimstock Order).
Here, once respondent learned of her right to a hearing from her attorney in this case, and submitted the demand form, she did not get her hearing until 19 business days (26 calendar days) after the date the vehicle was seized. Respondent’s counsel argued that her client was prejudiced in this case by the unavailability of her automobile for the 9 business days or 13 calendar days beyond what might have been the case had the initial notice requirements been properly fulfilled by the Department. Respondent here suffered greater prejudice than respondents in both Sica (five business and ten calendar days beyond the earliest appropriate schedule) and Tripp (no real delay). Indeed, respondent here did not even learn what had happened to her car until she retained counsel, who advised her to go to the precinct and inquire. It was only then that she was able to confirm that the Department had seized the vehicle for purposes of forfeiture. This scenario cannot be what was intended by the Krimstock Order, the whole thrust of which was to ensure prompt, preliminary post-seizure hearings.
As noted in Sica, in analogous circumstances regarding other Krimstock notice requirements, this tribunal has strictly construed the Krimstock Order against petitioner. “Thus, where a hearing was not scheduled within ten business days of the respondent’s submission of the hearing demand form as Krimstock requires, we have ordered return of the vehicle without regard to the underlying merits. . . . Considering both the spirit and letter of the Krimstock Order, the same remedy should apply here.” Police Dep’t v. Sica, OATH Index No. 1139/06, mem. dec., at 5 (Jan. 26, 2006) (citing Police Dep’t v. Singletary, OATH Index No. 342/06, mem. dec. (Aug. 24, 2005); Police Dep’t v. Manning, OATH Index No. 1162/05, mem. dec. (Jan. 25, 2005)).