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Police Dep’t v. Nunally

OATH Index No. 169/08, mem. dec. (July 30, 2007)

In vehicle forfeiture proceeding, ALJ found that Department failed to comply with five-day notification requirement under Krimstock. Vehicle ordered returned.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

LINDA NUNALLY

Respondent

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MEMORANDUM DECISION

JOHN B. SPOONER, Administrative Law Judge

The petitioner, the Police Department, brings 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. The respondent, Linda Nunally, is the owner of the seized vehicle. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), second amended order and judgment (S.D.N.Y. Dec. 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, a 2002 Honda Accord, NYPD voucher number B115629, was seized by the Department on May 5, 2007, in connection with the arrest of Damien Lemons for criminal possession of a weapon in the third degree. Following receipt of the respondent's demand for a hearing on July 16, 2007, the Department scheduled a hearing for July 26, 2007. At the hearing, respondent appeared and contended that petitioner lacked authority to retain the car.

As set forth below, I conclude that the vehicle should be returned because petitioner failed to comply with the Krimstock notification requirements.

ANALYSIS

In the instant case, the Department sought to retain the seized vehicle, while respondent challenged the timeliness of the notice of her right to a retention hearing. Respondent insisted that she did not learn about her right to a hearing until, after repeated telephone calls to the police precinct, she finally spoke with someone at the Department legal bureau on June 30, 2007. She also asserted that she should be considered an innocent owner, although she conceded that she gave Mr. Lemons permission to drive her car. Petitioner produced no evidence as to the issue of whether the notice was timely served.

The Krimstock Order provides specific notice requirements for the Department to follow after seizing a vehicle. The Order states, “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. . . . A copy of such notice will also be sent by mail to the registered and/or titled owner of the vehicle within five business days after the seizure.” Krimstock Order, para. 3 (Dec. 6, 2005).

The Krimstock notice requirements have been strictly construed against the Department. See Police Dep’t v. Caban, OATH Index No. 107/07, mem. dec. at 4 (July 14, 2006) (notice requirements designed to insure actual notice to owner and opportunity for a prompt hearing). Where challenged, petitioner bears the burden of establishing that the Department complied with the notice requirements. Police Dep’t v. Edison, OATH Index No. 1451/07, mem. dec. at 2 (Feb. 28, 2007); Police Dep’t v. Sica, OATH Index No. 1139/06, mem. dec. at 3 (Jan. 26, 2006).

At the hearing Ms. Nunally acknowledged that Mr. Lemons was her boyfriend from February 2007 until May 2007. She testified that she began dating Mr. Lemons in February 2007 after recently returning to New York City from North Carolina, where she had been attending college. She stated that she intended to live in New York City temporarily to help her mother, who was ill, and to prepare for graduate school. When they began dating, Ms. Nunally was aware that Mr. Lemons was “known for having guns,” but insisted she was not aware of any prior arrests or criminal convictions.

Respondent began leasing the Honda in August 2006. In April 2007, she had Mr. Lemons move and park her car on the street while she was on vacation for a few days. In early May 2007 Mr. Lemons started a new job as a stocker at a Fifth Avenue clothing store from 8:00 p.m. to 4:00 a.m. Respondent admitted that, on May 4, 2007, she loaned him her car in order to drive to and from his new job. Respondent learned on or around May 5 that Mr. Lemons had been arrested and that her Honda had been seized by the police. When she called the precinct, she was referred to an Officer Cruz. It took her several weeks before she was able to speak with Officer Cruz. He referred her to the College Point Pound and the district attorney’s office. It took several more telephone calls until she was referred to the Department legal bureau on June 25, 2007. Someone at the bureau informed her of her right to a hearing, took her New York City mailing address, and, a few days later, mailed her a vehicle seizure form (Pet. Ex. 7d) in an envelope (Resp. Ex. E) postmarked June 29, 2007. Most of these telephone calls are reflected by handwritten notes made in respondent’s journal (Resp. Ex. D).

Respondent’s request for a hearing (Pet. 7d) was received by the Department on July 16, 2007, and a hearing was scheduled for July 26, 2007, within ten business days following the receipt of the request as required under the Krimstock Order.

Respondent also admitted that the Honda was registered to her at an address in Raleigh, North Carolina, where her brother and a friend currently reside (see Pet. Ex. 6). She insisted that she had spoken to her brother and he had assured her that no mail addressed to her from New York had been received at his address. Petitioner’s representatives offered no proof to establish that the required notice of a right to a hearing had ever been timely mailed to respondent, as required by the Krimstock order.

Prior cases establish that, where the Department has no proof of compliance with the Krimstock notification mandates, the seized vehicles must be returned. In Police Department v. Ruiz, OATH Index No. 1440/07, mem. dec (Mar. 27, 2007), ALJ Casey held that the failure to provide timely notification as required by the Krimstock order required that the Department release the vehicle to the owner. In Police Department v. Williams, OATH Index No. 1759/07, mem. dec. at 9 (Apr. 12, 2007), ALJ Salzman also held that the department was not entitled to retain a seized vehicle. I made a similar holding in Police Dep’t v. Kistoo, OATH Index No. 1906/07, mem. dec. (May 8, 2007).

I note that, in this case, respondent did not argue that the Department was obliged to serve her with a notice of a right to a hearing at her New York City address, when the only address reflected on her vehicle registration was in North Carolina. She did argue correctly that, after she came forward with evidence that no service was made, petitioner was required to produce some proof of service of the notice.

Petitioner’s sole argument opposing the release of the vehicle due to untimely notice was that the notice issue was rendered moot because respondent suggested in her testimony that she made no effort to keep in touch with her brother in North Carolina. Petitioner’s counsel therefore contended that respondent could not reliably know whether her brother had received a notice concerning her right to a retention hearing and, even assuming a notice had been properly mailed to the North Carolina address, respondent would not have been aware of it. Like similar mootness and harmless error arguments made by the Department in past cases, see Ruiz, OATH Index No. 1440/07 (Mar. 27, 2007) (vehicle released where failure of district attorney to timely issue letter indicating that vehicle was not needed as proof in criminal prosecution did not excuse failure of Department to meet five-day deadline to mail notice); Williams, OATH Index No. 1759/07 (Apr. 12, 2007) (same), this argument is without merit. The argument is factually inaccurate since respondent stated that she obtained mail sent to the Raleigh address whenever she traveled to Raleigh or when her brother traveled to see her. She made no statements about not being in contact with her brother.

Furthermore, the notice requirements in the Krimstock order are specific and clear. There is no indication that the Department should be permitted to ignore these notice requirements by speculating that certain acts by the owner or by the district attorney might be partially responsible for the delay which occurred.

Based upon the express requirements of the Krimstock Order and upon prior precedent, I therefore find that petitioner failed to provide timely notice to respondent of her right to a retention hearing and that the vehicle should be returned. Given the undisputed fact that notice was deficient, there is no need to address the merits of whether the respondent is an innocent owner or whether the Department might otherwise have been entitled to retain the vehicle.

ORDER

The Department is hereby ordered to return to respondent vehicle voucher number B115629, VIN number 1HGCG56722A142391, forthwith.

John B. Spooner

Administrative Law Judge

July 30, 2007

APPEARANCES:

LAWARENCE SISTA, ESQ.

JASON GINES

Attorneys for Petitioner

LINDA NUNALLY

Respondent Pro Se