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Police Dep’t v. Zhang

OATH Index No. 1791/08, mem. dec. (Mar. 26, 2008)

Petitioner is entitled to retain a vehicle that respondent modified and repeatedly used for the sole purpose of selling counterfeit goods. Based upon respondent’s extensive history of similar unlawful conduct, there is a substantial risk that, upon release of the vehicle, respondent would continue to use it for criminal activity.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

SHOU ZHANG

Respondent

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MEMORANDUM DECISION

KEVIN F. CASEY,Administrative Law Judge

Petitioner, the Police Department, brought 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. RespondentShou Zhang is the vehicle’s registered owner and was driving it at the time of the seizure. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (HB), third amended order and judgment (S.D.N.Y. Sept. 27, 2007) (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).

On February 16, 2008, petitioner seized respondent’s vehicle, a 2000 Honda van, property clerk voucher B194223V, following his arrest for trademark counterfeiting in the third degree, in violation of section 165.71 of the Penal Law. Petitioner received a demand for a hearing on February 25, 2008, and scheduled a hearing at this tribunal for March 7, 2008. At respondent’s request, the hearing was adjourned to March 21, 2008.

At the hearing, each side offered documentary evidence and petitioner called respondent as a witness. For the reasons below, I conclude that petitioner is entitled to retain the vehicle.

ANALYSIS

To prevail, petitioner must show that: (i) there was probable cause for the arrest that resulted in the seizure of the vehicle; (ii) it is likely that the Department will prevail in a civil action for forfeiture of the vehicle; and (iii) it is necessary to retain the vehicle to ensure its availability for a forfeiture judgment or to protect the public. Krimstock, Order at ¶ 3; Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286. Due process requires 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 v. Kelly, 306 F.3d at69-70;see Canavan, 1 N.Y.3d at 144 n.3, 770 N.Y.S.2d at 286 n.3. Here, petitioner met its burden.

Petitioner demonstrated that there was probable cause for an arrestand it is likely to prevail at a civil forfeiture proceeding. A police officer reported that he saw respondent selling counterfeit designer handbags to customers inside a van parked on Walker Street in lower Manhattan. When the officer approached, he asked the customers to step outside the van and he saw fake handbags inside the vehicle. Instead of rear passenger seats, there were shelves crammed with merchandise (Pet. Exs. 1 & 16). Based upon those observations, the officer had probable cause to arrest respondent for trademark counterfeiting in the third degree. Indeed, respondent did not challenge the lawfulness of his arrest when he later pleaded guilty to disorderly conduct.

Respondent’s testimony partly confirmed the arresting officer’s version of events. He admitted that he was selling counterfeit bags from his van that day and he conceded that the van’s interior was visible from the sidewalk when he opened the door. Any bystander could see that respondent was using his van to sell merchandise labeled Gucci, Prada, and Chanel. Under the circumstances, it was reasonable for the police to suspect that he was trafficking in counterfeit goods. See Police Dep’t v. Xia, OATH Index No. 128/08, mem. dec. at 3 (July 18, 2007).

At the hearing, respondent offered a different account of how the arresting officer entered the van. He testified that he was 10 to 15 feet away from the van when the police first approached and that they arrested him before forcing him to open the van. I did not credit respondent’s attempt to disassociate himself from the van or his suggestion that there was an illegal search. Respondent was not a believable witness. This was his ninth arrest for trademark counterfeiting (Pet. Exs. 7 & 14). Although he always pleaded guilty to disorderly conduct, respondent did not dispute the obvious – he routinely sold fake handbags.

Moreover, respondent’s testimony wasvague and evasive. For example, he tried to suggest that selling handbags was a weekend job that supplemented his income from working in a factory during the week. Yet most of his prior arrests for selling counterfeit goods occurred on weekdays (Pet. Ex. 14). Respondent was also unwilling or unable to provide the address of the factory where he had supposedly worked for many years and he failed to recall the address of the location where he purchased the counterfeit goods (Resp. Ex. B). He further claimed that he no longer lived at the address listed on his driver’s license. Although he portrayed himself as a person of limited means who takes the subway to his factory job in the garment district, he somehow manages to own three vehicles, including two vans that he has used to sell fake handbags (Pet. Exs. 5 & 11).

Respondent’s selective lack of recall was not, as he suggested,due to a language barrier or a lack of formal education. Through an interpreter, respondent offeredspecific testimony about his many prior arrests, all involving similar criminal activity. Respondent, who has lived in New York for a decade, also provided a detailed account of his monthly expenses, which far exceeded his reported monthly income. Because it appears that respondent’s testimony was deliberately deceptive, I did not credit his claim regarding an unlawful search.

Petitioner also proved that release of the vehicle poses a heightened risk to public safety. Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86 (retention of a vehicle is a rational means of protecting the public from repeated drunk driving); see also Property Clerk v. Harris, 9 N.Y.3d 237, 244, 247, 848 N.Y.S. 588, 593, 595 (2007) (vehicle may be retained pending forfeiture proceeding to prevent “further criminal conduct”). To meet this prong, petitioner does not have to establish that respondent is an immediate threat to life and limb, but it must “prove more than the fact that the seized vehicle was the instrumentality of a crime.” Police Dep’t v. Olberding, OATH Index No. 283/05, mem. dec. at 3 (Aug. 9, 2004) citing Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. (Feb. 24, 2004).

A heightened risk to public safety may be shown by the nature of the offense, the driver’s background, or the history of the vehicle. See, e.g.,Police Dep’t v. Ahevonderae, OATH Index No. 1521/07, mem. dec. at 5 (Mar. 14, 2007) (heightened risk shown by repeated use of vehicle to transport illegal cigarettes and driver’s history of “indifference to the law”);Police Dep’t v. Walton, OATH Index No. 1037/08, mem.dec. at 5 (Feb. 28, 2008) (driver repeatedly used the same vehicle to sell drugs); Police Dep’t v. Ferrer, OATH Index No. 977/08, mem. dec. at 4 (Nov. 14, 2007) (risk that owner would continue to engage in similar criminal conduct shown by installation of a secret compartment to transport drugs); cf.Xia, OATH 128/08, mem. dec. at 3-4 (multiple prior arrests for selling counterfeit goods, without use of a vehicle, does not demonstrate that release of vehicle poses a heightened risk to public).

Here, as in Ahevonderae and Walton, a driver repeatedly used the same vehicle for the same criminal purpose (Pet. Ex. 12). The Department seized this vehicle two years ago in connection with one of respondent’s prior arrests for trademark counterfeiting. According to the Department’s records, this vehicle was released based, in part, upon an erroneous report that respondent had no prior arrests (Pet. Ex. 13). As in Ferrer, petitioner also showed that the vehicle was modified for the specific purpose of trafficking in contraband (Pet. Exs. 1 & 16). In addition, petitioner presented evidence that one of respondent’s other vehicles, a 2002 Chevy van, was seized last year and is the subject of a pending civil forfeiture proceeding (Pet. Ex. 10). Based uponrespondent’s repeated criminal use of this vehicle, his alteration of the vehicle for illegal purposes, and his history of identical crimes, petitioner proved that it is necessary to retain this vehicle to prevent further criminal misuse.

At the hearing, respondent also suggested that he had learned his lesson and would no longer use this vehicle to sell fake handbags. That claim was difficult to believe in light of respondent’s lack of candor at the hearing and his persistent criminal conduct, especially after the prior seizure of another vehicle.

ORDER

The Departmentmay retain respondent’s vehicle pending the outcome of the forfeiture proceeding.

Kevin F. Casey

Administrative Law Judge

March 26, 2008

APPEARANCES:

RICARDO ABRAHAM, ESQ.

Attorney for Petitioner

STUART ALTMAN, ESQ.

Attorney for Respondent