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Police Dep’t v. Nasta

OATH Index No. 728/07, mem. dec. (Oct. 26, 2006)

Petitioner failed to satisfy the first prong under the Krimstock analysis and is not entitled to retain custody of seized vehicle. Vehicle ordered released.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

GIOVANNA NASTA

Respondent

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MEMORANDUM DECISION

ROBERTO VELEZ,Chief Administrative Law Judge

Petitioner, the Police Department, brought this proceeding to determine its right to retain a vehicle, a 2001MitsubishiMirage (Voucher No. B131922), seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. Respondent Giovanna Nasta is the registered and titled owner of the vehicle. Oscar Benitez, who is Ms. Nasta’s daughter’s fiance, was a passenger in 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) (“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).

Respondent’s vehicle was seized on August 4, 2006, in connection with his arrest for criminal possession of a weapon in the thirdand fourth degree (Pet. Ex.3). The Department received respondent’s demand for a hearing on September 29, and a hearing was scheduled for October 12, 2006 (Pet. Ex. 7B). It was rescheduled for October 19, 2006. Ms. Nasta appeared without an attorney. Ms. Nasta’s daughter, Kathleen Moscarta, also appeared. For the reasons set forth below, I find that the vehicle should be released to Ms. Nasta.

ANALYSIS

The Department seeks to retain the seized vehicle as the instrumentality of a crimepending the outcome of its civil forfeiture action. To do so, 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, ¶ 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, 306 F.3d at, 69-70; 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 element of the Krimstock Order, the Department has the burden of proving probable cause for the arrest but also has the burden of establishing how the arresting officers “lawfully came to learn of the vehicle’s illegalcontents.” Property Clerk of the Police Dep’t of the City of New York v. Burnett, Index No.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);Police Dep’t v. Shelton, OATH Index No. 1684/06, mem. dec. (May 2, 2006) (vehicle released where, despite respondent’s arrest for possession of a loaded firearm, the recordcontained no facts that established the nature of the alleged traffic violation that ledofficers to approach and search the vehicle).

I find the documentaryevidence submitted by the Department insufficient to establish probable cause for Mr. Benitez’s arrest. The evidence shows that on August 4, 2006, Mr. Benitez was arrested for criminal possession of a defaced firearm (Pet. Ex. 3). The criminal complaint sworn to by Police Officer Isaisas Martinez states that:

[D]efendants were acting in [illegible] in that the defendant were all seated inside a 2001 Mitsubishi Mirage [illegible] license plate #CSM7375) and defendant Cherry was seated in the drivers [illegible] defendant Benitez was seated in the frontpassenger seatand defendant [illegible] was seated in the rear passenger seat behind the driver.

Deponent is informed by Sgt. William Estrada of 40 pct., Shield # 16583, that he observed defendants to have in their custody and control, under the front passenger seat, one 9mm luger loaded with ten live rounds (each live round is a metal casing topped with a metal projectile) and said firearm was defaced.

Id.

The evidence fails to establish the reasonablesuspicion that led the officer to approach the vehicle and conduct a search of the vehicle or the occupants. See People v. Woods, 189 A.D.2d 838, 592 N.Y.S.2d 748 (2d Dep’t1993) (“A stop for a traffic offense will not justify a search of the motorist or of the vehicleunless there are reasonable grounds for believing the motorist guilty of a crime, as opposed to atraffic offense . . .”); People v. Cirrincione, 206 A.D.2d 833, 615 N.Y.S.2d 197 (4th Dep’t 1994)(a police officer’s question about the contents of luggage in the passenger side of the carwas not permissible when the vehicle was stopped for a traffic violation). A search may only bebased on reasonable suspicion of criminal activity. See People v. Turriago, 219 A.D.2d 383,387, 644 N.Y.S.2d 178, 181 (1st Dep’t 1996), aff’d as modified, 90 N.Y.2d 77, 659 N.Y.S.2d183 (1997) (a traffic violation alone does not create reasonable suspicion required tosupport a request to search); People v. Williams, 300 A.D.2d 684, 752 N.Y.S.2d 709 (2d Dep’t2002) (following stop for a traffic violation, driver’s conduct of looking back at the police, looking nervously away, and then appearing to secrete something at his feet, provided reasonable suspicion to search the vehicle).

At the hearing, the Department did not provide any additional information to clarify the criminal court complaint. But Neil Berman, Esq., the Department’s attorney, stated that he would supply an affidavit that would contain details to establish probable cause for the arrest. On Monday, October 23, 2006, Lawrence Sista, Esq., the Department’s second attorney, informed my law clerk that the Department was not going to supply the affidavit.

Without more facts concerning the basis for the arrest, the Departmentfailed to supply the requisite proof of probable cause. I therefore find the Department’sevidence insufficient to establish the first prong of the test set forth in the Krimstock Order.

Having found that the Department failed to satisfy its legal burden under the first prong of the Krimstock Order, I need not consider whether the Department will likely prevail at the forfeiture hearing or whether it is necessary that the vehicle remain impounded to ensure its availability for a judgment of forfeiture.

ORDER

The Department failed to satisfy its burden under the Krimstock Order and is not entitled to retain the vehicle pending the forfeiture action.

Roberto Velez

Chief Administrative Law Judge

October 26, 2006

APPEARANCES:

NEIL BERMAN, ESQ.

Attorney for Petitioner

GIOVANNA A. NASTA

Respondent Pro Se