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Police Dep't v.Craig

OATH Index No. 1138/06, mem. dec. (Feb. 22, 2006)

Petitioner Police Department is not entitled to retain respondent’s vehicle pending outcome of civil forfeiture action as petitioner did not meetthe first prong of the KrimstockOrder.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

KENDALL CRAIG

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 seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. The respondent, Kendall Craig, was the owner/driver of the vehicle at the time it was seized. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), amended order and judgment (S.D.N.Y. Jan. 22, 2004), as amended December 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 Nassau v. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003).

The vehicle in question, a 2001 Mitsubushi (Voucher # B121629V), was seized on October 29, 2005, following respondent’sarrest for possession of a weapon in the third degree (Pet. Exs. 1 & 4). Penal Law §§ 265.02(3) & (4) (Lexis 2005). Petitioner received respondent’s demand for a hearing on January 17, 2006. A hearing was scheduled for January 23, 2006 and was adjourned at respondent’s request to February 16, 2006. The hearing was held on February

16, 2006. As set forth below, petitioner hasfailed to prove the first prong of KrimstockOrder and consequently must return the vehicle.

ANALYSIS

In the instant proceeding, 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 hearing." Krimstock v. Kelly, 306 F.3d 40, 69-70 (2d Cir. 2002), cert. den., 539 U.S. 969, 123 S. Ct. 2640 (2002); see Canavan, 1 N.Y.3d at 144-45 n.3, 770 N.Y.S.2d at 286 n.3, citation omitted (hearing is intended to establish "the validity, or at least the probable validity, of the underlying claim"). Here, petitioner seeks to sustain retention of the seized vehicle as the instrumentality of a crime. Therefore, petitioner bears the burden of establishing three points by a preponderance of the evidence: (i) that probable cause existed for the arrest pursuant to which the vehicle was seized; (ii) that it is likely that petitioner will prevail in a civil action for forfeiture of the vehicle; and (iii) that it is necessary that the vehicle remain impounded to ensure its availability for a judgment of forfeiture. Krimstock Order at 3; Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286. Petitioner’s case consisted entirely of documentary, hearsay evidence, admissible under section 1-46 of this tribunal’s rules and permissible under paragraph 5(b) of the Krimstock Order. Petitioner presented evidence in support of the first two prongs by allegations in the arrest report, the complaint form, and the unsigned criminal court complaint(Pet.Exs.1,2 3). To rebut the Department’s proof, respondent need not present a fully proved defense, but only a legally viable, factually substantial defense. PoliceDep’t v. Rivera, OATH Index No. 1272/04, mem. dec. at 2 (Apr. 19, 2004).

The Department called no witnesses and relied solely on the police arrest report, police complaint, and an unsigned criminal court complaint (Pet. Exs.1,23). These documents showed that, at approximately 8:00 p.m. on October 29, 2005, respondent’s vehicle was observed double-parked on the corner of 142 Avenue and Farmer’s Boulevard in Queens, with its hazard lights blinking. The officer approached the vehicle, observed respondent behind the wheel, and observed ahandgun in plainview in the backseat (Pet.Ex.3). Upon observation of the handgun, the officer arrested respondent and the two passengers. I find that the officer had a proper basis to approach the double-parked vehicle. A double-parked vehicle constitutes a traffic infraction and an articulable basis for approaching a vehicle. People v. Citron, 255 A.D.2d 452, 681

N.Y.S.2d 57 (1998). The question of whether the handgun was actually in plainview is at the heart of this case.

At the hearing, respondent took the stand to rebut the Department’s documentary hearsay evidence. He testified that, on the night in question, he was driving home from the mall and double-parked in front of a “24 hour store” to purchase a can of beer. The store was a few blocks away from his home. Respondentturned on his hazards and left the car with the two passengers inside: Jumaa Allen and Brandon Dennis. He entered the store and waited to purchase the beer. While waiting, an unnamed police officer entered the store approached and asked him, “Where is the weed?” Respondent replied that he did not have marijuana. The officer allegedly stated that one of his passengers had accused respondent of using marijuana. The officer then asked whether respondent would give him permission to search the car. Respondent did not give permission. The officer never asked about a handgun.

Thereafter, the officer escorted respondent back to the car. Respondent observed that the two passengers were still in the vehicle. The officer searched respondent and did not find anything. The officers ordered the two passengers out of the car and searched them. The officer found a knife on Mr. Allen. The officers proceeded to search the car and discovered a bag containing the handgun. Respondent testified that the bag belonged to Mr. Allen.[1] Throughout his testimony, respondent repeatedly emphasized that he never saw a handgun in his car and that he never saw a gun in plainview in the backseat.

During cross-examination, the Department’s attorney made the point that if respondent was in the store when the officers approached the vehicle, he was not in a position to determine whether one of his passengers may have placed the handgun in plainview. However, I find this plainview scenario incongruent with the respondent's testimony that the officer sought respondent in the store to inquire about the location of marijuana and to request permission to search the vehicle. If the officer had indeed observed ahandgun in plainview when respondentwas in the store, the officer would have immediately secured the handgun and arrested respondent, who was the owner/driver.

I find respondent’s testimony to be credible and it rebuts the officer’s hearsay contention in the complaint report that the handgun was in plain view. The inconsistencies between

respondent’s credible testimony and the Department’s documents weigh against a finding that the officer observed the handgun in plainview. This tribunal finds that the handgun was not in plainview and the officers did not have probable cause to conduct a search of the bag.

In presenting its case, the Department may rely upon hearsay evidence; however, the evidence that the Department submitted was insufficient in light of the credible evidence presented by respondent, who is a 26 year old,employed, college graduate. The respondent's only prior arrest, for disorderly conduct, which he explained, did not undermine his credibility. In addition, respondent has been released on his own recognizance in the pending criminal court case, in which he has been charged with possession of the defaced and loaded handgun in question. Respondent could have waited until the end of his criminal court case, but he chose to initiate this civil proceedingfor the return of his vehicle and risk the possibility that the statements made here could be used against him in the criminal proceeding. Despite this risk, he testified in thishearing. This further supports his credibility.

Finally, this tribunaldoes find the charge of criminal possession of a loaded and defaced handgun to be very serious. However, there was insufficient evidence to meet the Department’s burden on the first Krimstockprong, probable cause for the arrest. If the Department hadintroduced a more detailed affidavit to establish probable cause, the disposition here might have been different. In fact, theDepartment did not even request a continuance after respondent’s testimony to supplement its proof.

This tribunal does not make findings as to the second or third prongs of the Krimstock Order.

ORDER

Petitioner is not entitled to retain the seized vehicle.

Roberto Velez

Chief Administrative Law Judge

February 22, 2006

APPEARANCES:

VIKRANT PAWAR, ESQ.

Attorney for Petitioner

JOSEPH KASPER, ESQ.

Attorney for Respondent

[1] Respondent’s attorney introduced a handwritten statement allegedly signed by Mr. Allen, a passenger in the car (Resp.Ex. A). Within the statement, Mr. Allen admits that he is the owner of the gun. This tribunal finds the statement to be unreliable and it did not influence this decision.