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Police Dep’t v. Pramanik

OATH Index No. 1751/07, mem. dec. (Apr. 10, 2007)

Department satisfied all elements of KrimstockOrder. Department is entitled to retain vehicle as an instrumentality of a crime pending 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-

ELIUS PRUMANIK

Respondent

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MEMORANDUM DECISION

ALESSANDRA F. ZORGNIOTTI,Administrative Law Judge

Petitioner, the Police Department, brought this proceeding to determine its right to retain a vehicle, a 2001Chrysler (Voucher No. B145017), seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. Respondent Elius Pramanik,is the owner of the vehicle. The vehicle was seized on November 23, 2006, in connection with the arrest of his son, Anthu Pramanik, for possession of a loaded firearm and menacing. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), second amended order and judgment (S.D.N.Y. Dec. 6,2005) (“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 Nassauv. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003).

Following receipt of respondent’s demand for a hearing on March 22, 2007, a hearing was scheduled for April 5, 2007 (Pet. Ex. 7). Respondent appeared with a representative and contested the petition. I find that the Department has satisfied the elements of the Krimstock Order and that respondent is not an innocent owner. Therefore, petitioner is entitled to retain the seized vehicle pending outcome of the forfeiture action.

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”).

Respondent testified that he is the owner of the seized vehicle which he drives primarily as a taxi. Respondent is married with two children including Anthu Pramanik,who is 20 years old. Respondent’s wife owns a house at 163-33 Phroane Avenue in Queens which is rented to Corey White and his wife. Respondent collects the rent. At the time of Anthu Pramanik’s arrest, the Whitesowed four months back-rent. The lender had commenced or had threatened to commence foreclosure proceedings against the property and respondent had commenced or had threatened to commence an eviction proceeding against the tenants. Respondent claimed that on November 23, 2006, Thanksgiving Day, the tenants advised him to come to the house to collect the rent.

Respondent testified that he had his son drive him and his brother to the residence in the vehicle. Respondent “forced” his brother to come because he thought there might be problems with the tenants over the rent. When they arrived at 163-33 Phroane Avenue, they parked the car in front of the house. There was an argument about kicking the front door and Mr. White, his wife, and four other people came outside. They had anargument about the back-rent and there was a lot of pushing and shoving. Respondent alleged that he went around to the back of the house and that his son drove away, parked the car, and came back on foot a few minutes later.

The arrest report and complaintstate thatAnthu Pramanik pointed a gun at Mr. White during the argument (Pet. Exs. 1 & 2). According to the criminal complaint, Mr. White also observed Anthu Pramanik place the gun inside a parked Chrysler automobile. Officer Madden subsequently retrieved from respondent’s vehicle a defaced loaded .357 magnum revolver that Mr. White identified as the gun Anthu Pramanik pointed at him (Pet. Ex.3).

The 911 telephone log sheet indicated thatan anonymous female called the police from the location and the operator heard a lot of “yelling and screaming” in the background. The woman called back a few minutes later and stated that the “perpetrator” had left but that his father was still present. At the same time, respondent’s brother called 911 and stated that they were trying to collect rent and that the tenants were attacking him and his brother. He also stated that there was an unknown weapon involved but that there were no injuries. The police were dispatched to the scene (Pet. Ex. 10).

At approximately 8:00 p.m., respondent’s vehicle was seized at the corner of Guy Brewer Boulevard and 112th Road (Resp. Ex. A). At 8:09 p.m., Anthu Pramanik was arrested at 163-33 Phroane Avenue for criminal possession of a defaced weapon in the third degree, criminal possession of a loaded weapon in the third degree, menacing with a weapon, and harassment (Pet. Ex. 1). Anthu Pramanik is awaiting his criminal trial and faces deportation if convicted of a felony.

Respondent conceded that there was probable cause for the arrest. Based on the arrest report, complaint, criminal complaint, and 911 log, I also find that probable cause existed for the arrest of respondent’s son. Accordingly, the first prong of the Krimstock Order has been satisfied.

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); seeProperty Clerk of New York City Police Dept. v. Negron, 157 A.D.2d 602, 550 N.Y.S.2d 351 (1st Dep’t 1990) (permitting seizure where vehicle was used to drive away from place of drug purchase); Police Dep’t v. Mohammed, OATH Index No. 1159/04, mem. dec. (Mar. 2, 2004) (finding vehicle was instrumentality of crime where firearms sales took place within the vehicle).

Respondent argues that the Department will not prevail in the civil forfeiture action because there was no probable cause to search the vehicle. I find Mr. White’s statement to Officer Madden, as set forth in the criminal complaint, that Anthu Pramanik pointed a gun at him and then placed the gun inside a parked Chrysler provided probable cause to search the vehicle.

Respondent objected to the criminal court complaint on the grounds that it did not contain the signature portion showing it was a sworn statement and that it constituted impermissible hearsay (Pet. Ex. 3). At petitioner’s request, the record was left open until the end of the day to submit the signature page. Petitioner did not submit the document. While this is not good practice, the failure to submit the signature page does not warrant preclusion of the hearsay document.

Paragraph 2 of theKrimstock Order provides this tribunal “may consider such hearsay and other evidence as the judge may consider reliable.” See also Police Dep’t v. Cruz, OATH Index No. 1643/06, mem. dec. (Apr. 25, 2006); Police Dep’t v. Kelly,OATH Index No. 667/07, mem. dec. (Oct. 10, 2006). As a preliminary matter, an unsworn criminal court complaint is routinely taken into account in Krimstock hearings. Here, the complaint is based on an officer’s interview of an individual known to respondent. While Mr. White may be biased against respondent over the rent dispute, he had personal knowledge of the facts and gave his statement immediately following the incident at the scene where respondent and other witnesses were present. Moreover, the brother’s call to 911 that there was a weapon provided additional weight to Mr. White’s assertion about a gun, especially since there is no evidence that another gun was involved. The fact that the complaint fails to identify the vehicle by license or identification number and that it was seized from a different location is not dispositive of the document’s reliability. Respondent admitted the he had his son drive him to 163-33 Phroane Avenuein a Chrysler and that after the argument his sonmoved the vehicleand returned to the scene on foot. This tribunal takes administrative notice that respondent’s Chrysler was found around the corner from the house. Officer Madden subsequently retrieved a loaded .357 magnum revolver from respondent’s Chrysler which was identified by Mr. White as the one used by Anthu Pramanik. Officer Madden listed the gun and the vehicle in the complaint (Pet. Ex. 2). Based on the totality of the circumstances, I find that the criminal complaint is sufficiently reliable and that there was probable cause to search the vehicle.

I also find that the Department has established a likelihood of success in a subsequent civil forfeiture action. Petitioner’s documents demonstrated that itis more likely than not that the seized vehicle was used by Anthu Pramanik to transport a loaded firearm to the scene of a rent dispute, that the loaded firearm was used to menace a tenant, and that he concealed the weapon in the vehicle and drove it away from the scene. Accordingly, the Department has made a showing that the vehicle was used shown in furtherance of, or as the instrumentality of, a crime.

Respondent also argues that he is an innocent owner. Generally, the “innocent owner defense” is raised when the vehicle owner is not present when the driver is arrested and the vehicle is seized. Police Dep’t v. Mercedes, OATH Index No. 330/07, mem. dec. (Sept. 18, 2006). Petitioner 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); [Police Dep’t v. Harris, OATH Index No. 971/05, mem. dec. (Dec. 27, 2004), aff’d, 7 Misc. 3d 1032A, 801 N.Y.S. 2d 241 (Sup. Ct. N.Y. Co. 2005).] The Administrative Code provides that anyone who used property tocommit a crime “or permitted or suffered the same to be used . . . shall not be deemed to be alawful claimant to any such . . . property.” Admin. Code § 14-140(e); see also Krimstock, 306F.3d at 48, n.9. The courts have concluded that a statute that holds a person liable for havingpermitted or suffered a certain activity may only be enforced against one who “knew, or shouldhave known, that the activity would take place.” Pagano, 170 A.D.2d at 35, 573 N.Y.S.2d at661.

Here, respondent’s wife was facing foreclosure of the property at 163-33 Phroane Avenue and the tenants owed four months in back-rent. Respondent’s claim that the Whites asked him to come over and collect rent on Thanksgiving Day seems unlikely. It seems more likely that respondent went unannounced to collect the rent and that he had his brother and son accompany him as a showing of strength and intimidation. The visit quickly escalated into a heated argument and there is no evidence that respondent ever collected the rent. I found respondent’s testimony that he went to the back of the house during the argument and had no knowledge that his son had a gun incredible. Respondent had a strong motive to make this statement: to keep possession of his vehicle and to not incriminate his son who is facing a felony conviction and deportation. Since it seems more likely than not that respondent allowed his vehicle to be used to transport a loaded weapon to the scene of a crime, he cannot be considered an innocent owner.

As to the third element, the necessity to retain the vehicle pending the forfeiture action, we have held that where return of the vehicle to the respondent would pose a heightened risk to the public safety, such risk satisfies this element. See, e.g., Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. at 2 (Feb. 24, 2004)citingCanavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86. Prior decisions have held that such heightened riskmight be evidenced by the circumstances of the crime itself. SeePolice Dep’t v. Kinchen, OATH Index No. 810/07, mem. dec. (Nov. 6, 2006) (driving with loaded handgun within easy reach established public safety risk); Police Dep’t v. Cruz, OATH Index No. 1643/06, mem. dec. at 4 (Apr. 25, 2006) (driving with loaded handgun within easy reached established public safety risk); Police Dep’t v. Mohammed, OATHIndex No. 1159/04, mem. dec. at 3-4 (Mar. 2, 2004) (vehicle used for multiple sales of illegalfirearms).

Here, a heightened risk to public safety is established becausethe evidence shows that respondentdrove his son with a loaded gun to collect disputed rent. Respondent and his son got into an argument with the tenants during which respondent’s son menaced a tenant with a .357 magnum revolver loaded with six .38 caliber cartridges. The gun’s serial number had been filed off, making it difficult, if not impossible, to trace. Even though respondent was not arrested or charged with a crime, he was unwilling to acknowledge his own culpabilityfor the crimes committed in his vehicle and showed no remorse at the retention hearing. The fact that respondent uses the vehicle as a taxi and that his son is facing deportation if convicted of a felony, are insufficient factors to offset the serious criminal conduct present here. Thus, I conclude that returning the vehicle to respondent poses aheightened risk to public safety.

ORDER

The Department is entitled to retain the seized vehicle.

Alessandra F. Zorgniotti

Administrative Law Judge

April 10, 2007

APPEARANCES:

LAWRENCE SISTA, ESQ.

Attorney for Petitioner

KURT CAMPBELL

Representative for Respondent