Police Dep't V. Ellis

Police Dep't v. Ellis

OATH Index No. 1550/07, mem. dec. (Mar. 14, 2007)

In vehicle retention proceeding, petitioner entitled to retain custody of the seized vehicle. Respondent was an innocent owner for the benefit of her son, who was not an innocent owner. Judge found a heightened risk to public safety based on the serious nature of charged crimes.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

PAMELA ELLIS

Respondent

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MEMORANDUM DECISION

CHARLES D. McFAUL, Administrative Law Judge

Petitioner brought this proceeding to determine its right to retain a vehicle, a 2005 Nissan Maxima (voucher B131432), that was seized as the alleged instrumentality of a crime and is subject to forfeiture pursuant to section 14-140 of the Administrative Code. Respondent, Pamela Ellis, is the registered owner of the 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) (the "Krimstock Order"). See 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).

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The subject vehicle was seized by the Police Department on February 17, 2007, following the arrest of two individuals for possession of a loaded firearm, reckless endangerment and resisting arrest (Pet. Ex. 1). Petitioner received respondent's demand for a retention hearing on February 26, 2007 and scheduled the retention hearing for March 8, 2007. The hearing concluded on March 8, but the record remained open until March 9, 2007 for the parties to submit legal briefs and updated information on the status of the criminal charges.

For the reasons set forth below, I conclude that petitioner is entitled to retain custody of the vehicle pending the outcome of a civil forfeiture action.

ANALYSIS

Petitioner seeks to retain custody of the subject vehicle as the instrumentality of a crime. Under the Krimstock Order, petitioner bears the burden of proving 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 pending final judgment in the forfeiture action. Krimstock Order ¶ 2; Canavan, 1 N.Y.3d at 144-46, 770 N.Y.S.2d at 286. Here, 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, 306 F.3d at 69, 70.

Petitioner’s case-in-chief rested primarily on official records and respondent’s testimony. This evidence shows that at around 1:00 a.m. on February 17, 2007, a police officer heard loud music coming from respondent’s car, which was occupied by four males. The officer approached the car and asked the driver, Rahsean Jackson, for his license. Mr. Jackson refused to produce a license and sped away from the officer, driving down a one-way street in the wrong direction and then driving in reverse, almost striking pedestrians. The car was later abandoned by all four occupants. An inventory search of the vehicle revealed a loaded firearm in the trunk. Mr. Jackson and Thomas Ellis were subsequently arrested and charged with reckless endangerment, resisting arrest and possession of a loaded firearm (Pet. Exs. 1, 2 & 3). The criminal charges remain pending before the Supreme Court (Pet. Exs. 5 & 5A)[1].

Respondent testified that on Friday evening, February 16, 2007, her son used her car at around 10:45 p.m. to pick up her daughter at work. He returned at around 11:30 p.m. and then went out again in the car sometime later. At around 2:00 a.m. Saturday morning, respondent’s step son called her and informed her that he had received a call from Rahsean Jackson saying that the police had her car. She tried to call her son on his cell phone but he did not answer, so she went back to sleep. She eventually spoke with her sonby phone at around 5:30 a.m. He told her that he had stayed over at a friend’s house and that Mr. Jackson had taken the car while he was asleep.

Respondent stated that she has never allowed Mr. Jackson to use her car. She is not related to either Thomas Ellis or Rahsean Jackson, but she knows them to be friends of her son, Nicardo Ellis, who is 20 years old. Respondent is the registered owner of the Nissan Maxima. Two other cars are also registered under respondent’s name: a 2003 BMW that her husband uses and a 1994 Infinity that really belongs to her step son. Although respondent purchased the Maxima in March 2006, she could not recall how much she paid for it.

Respondent testified that she uses the Maxima to commute to her place of employment in the Bronx. However, she also said that her son uses her car two or three days a week to go to school in WestchesterCounty. Respondent later corrected this testimony by explaining that her son switches between the Maxima and her husband’s BMW to go to school. Respondent’s son also uses the Maxima in the evenings to pick up his sister from work, to drop her off at church and to run errands for her during the week and on weekends. Although respondent testified that her son has never been arrested, he was held in police custody following his involvement in an accident with the Maxima last year. She had to pay $50 to release her son and eventually had to pay a $300 fine to the Department of Motor Vehicles. Her son has also gotten parking tickets while using the car.

The first issue petitioner must prove is whether there was probable cause for the arrest of Messrs. Jackson and Ellis. There is ample evidence in the record to find probable cause for these arrests. The arresting officer observed the reckless operation of respondent’s car on public streets. The car was subsequently abandoned by the two defendants and two other occupants. The inventory search uncovered a loaded firearm in the trunk. Taking the facts set forth in petitioner's evidence to be true, the search conducted in this case appears to be lawful. The contraband recovered during that search resulted in the arrest of two defendants, one of whom was the driver. Hence, petitioner has satisfied its burden of proof on the first prong under the Krimstock Order.

The second Krimstock prong is whether petitioner is likely to prevail in the civil forfeiture action. In order to prevail in the civil forfeiture action, petitioner must prove that the subject vehicle was "used as a means of committing crime or employed in aid or in furtherance of crime . . ." and that respondent "permitted or suffered" such use of the vehicle. NYC Admin. Code § 14-140[e][1] (Lexis 2007); cf., 48 RCNY § 2-45 (Lexis 2007) (where owner defaults, petitioner relieved from proving that owner permitted or suffered the use). The purpose of this section is to punish wrongdoers, not innocent parties. Property Clerk v. Pagano, 170 A.D.2d 30, 35, 573 N.Y.S.2d 658, 661 (1st Dep't 1991) (“The courts have long held that a statute which holds a person liable for having permitted or suffered a certain activity may only be enforced against one who knew, or should have known, that the activity would take place . . .”).

The evidence shows that the subject vehicle was used in connection with two of the charged crimes: reckless endangerment (a misdemeanor) and possession of a weapon, in the second degree (a felony). There is no evidence, however, showing that respondent either knew or should have known that her car would be used in connection with the charged crimes. She did not give permission for the two defendants to use her car nor did she know they would be using it. I find her testimony on this point to be credible. Therefore, respondent holds the status of innocent owner.

Nonetheless, petitioner seeks to defeat respondent’s innocent owner status by arguing that the car is owned for the benefit of her son, Nicardo. Beneficial ownership or a possessory interest in a vehicle may be established by dominion and control over the vehicle. See Vergari v. Kraisky, 120 A.D.2d 739, 502 N.Y.S.2d 788 (2d Dep't 1986). Several factors have been used to evaluate whether someone is the beneficial owner of a vehicle: the name on the documents related to ownership, the person who bears the expense for the vehicle or for the insurance, the primary user of the vehicle, how consistently the person uses the vehicle, and how many vehicles the person owns. See, e.g., Police Dep’t v. Murray, OATH Index No. 1144/06, mem. dec. (Jan. 31, 2006) (finding son was beneficial owner where he shared title to vehicle with his mother, the seized vehicle was his primary means of transportation, the mother owned two other vehicles and testified she regularly drove one of these other cars to work); Police Dep't v. Torres, OATH Index No. 1412/06, mem. dec. (Mar. 31, 2006) (finding nephew was not beneficial owner of aunt’s vehicle because his name did not appear on any documents related to ownership, he did not make loan payments on the vehicle, aunt was the primary user of the vehicle and the vehicle was her primary mode of transportation); Police Dep’t v. Walker-Richards, OATH Index No. 2020/06, mem. dec. (June 30, 2006) (finding driver, the brother of the registered owner, was not beneficial owner where his sister “often” let him use the car because there was no evidence he paid for the vehicle’s upkeep or that his sister was not the primary user); Police Dep’t v. Gonzalez, OATH Index No. 1929/06, mem. dec. (June 13, 2006) (finding half-brother of registered owner was not beneficial owner where he was not named on ownership documents, did not contribute to expenses of vehicle and he used the car “once in awhile” when owner was in town, despite fact that owner owned two cars, could not remember who he bought the seized vehicle from or amount he paid for the vehicle); Police Dep’t v. Reid, OATH Index No. 853/07, mem. dec. (Dec. 19, 2006) (finding registered owner’s son was not beneficial owner of vehicle despite testimony that he used the vehicle while she stayed in his apartment where son had been instructed to ask permission to use the vehicle and he did not contribute to its expense).

Petitioner asserts that Nicardo Ellis is the beneficial owner of the car based on evidence that he regularly usesthe vehicle. Petitioner points to respondent’s testimony that her son uses the car two or three times a week for school, at night and on weekends; that her son was involved in an accident in the car; and that she has received parking tickets from his use of the car. Petitioner argued further that respondent’s admitted beneficial ownership of another car for her step-son indicates she would have a similar beneficial ownership for her son.

While respondent is the registered owner of the Maxima, that fact alone does not establish dominion and control over the car. The evidence does suggest that respondent’s son has unfettered access to the Maxima and regularly uses it to attend school and to socialize. Although no evidence as adduced to show that respondent’s son purchased the Maxima, I found respondent’s inability to recall how much she paid for the car only last year most unusual. Since respondent said she purchased the car by herself as part of a deal in which she traded in another car, I would have expected her to recall what she paid for the Maxima. I am cognizant of the fact that it is in respondent's interest to claim dominion and control over the car to preserve her standing as an innocent owner and weigh her testimony accordingly. I also take note that respondent owns another car for the benefit of her step son, who resides in her household. In sum, I find the weight of the evidence establishes that the Maxima is regularly used by and benefits respondent’s son, Nicardo Ellis.

A finding of beneficial ownership does not end the analysis in this case because it is necessary to determine whether Nicardo Ellis is an innocent owner. This case is unusual because the beneficial owner is not one of the defendants charged with a crime. Nicardo Ellis has denied any involvement in the criminal acts of Messrs Jackson and Ellis. According to respondent, her son told her that Mr. Jackson took the car while he was asleep at a friend’s house. I find this claim implausible and do not accept this explanation for how the car came to be used by Mr. Jackson. Respondent testified that her son left the house in the car shortly before midnight, after bringing his sister home from work at 11:45 p.m. Based on the timing, I find it highly unlikely he would be asleep or otherwise unaware of the car’s whereabouts and use just one hour later. The arrest report lists the time of occurrence as 1:10 a.m. (Pet. Ex. 1). It is inconceivable that Nicardo Ellis would be asleep as he told his mother. I find it more likely that he was one of the occupants of the car when it was intercepted by the police officer. Moreover, respondent’s son did not testify at the hearing. His testimony would have been highly relevant to the issue of beneficial ownership as well as the circumstances surrounding how the car came to be used by Mr. Jackson. Respondent should have been able to produce her son as a witness and offered no explanation for her failure to do so. Petitioner requested a missing witness inference against respondent, which I find appropriate to make. Thus, I cannot conclude that Nicardo Ellis is an innocent owner. Accordingly, petitioner has demonstrated a likelihood of success at the civil forfeiture action, as required under prong two of the Krimstock Order.

The final prong under the Krimstock Order is a determination whether the vehicle may be released pending the civil forfeiture action. The Department argued that it is entitled to retain the vehicle pending final outcome of the civil forfeiture action to preserve the vehicle from loss, sale or destruction and to protect the public's safety. We have held that where the return of the vehicle would pose a heightened risk to public safety, such risk satisfies the “necessity to retain” element of the Department’s case. E.g., Police Dep't v. McFarland, OATH Index No. 1124/04, mem. dec. at 2, (Feb. 24, 2004), citing Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86. Prior decisions have held that such heightened risk might be evidenced, for instance, by the circumstances of the crime itself (e.g., Police Dep’t v. Harris, OATH Index No. 983/06, mem. dec. at 4 (Feb. 16, 2006) (respondent arrested for "serious felony offense," including the alleged reckless endangerment and serious misdemeanors such as menacing and the criminal possession of a firearm); Police Dep't v. Balseca, OATH Index No. 103/07, mem. dec. (July 25, 2006) (public safety risk found where loaded firearm found inside car while respondent was intoxicated); (Police Dep’t v. Mohammed, OATH Index No. 1159/04, mem. dec. at 3 - 4 (Mar. 2, 2004) (vehicle used for multiple sales of illegal firearms), or by the history of the driver or owner of the seized vehicle (e.g., Police Dep’t v. Benkovich, OATH Index No. 1296/04, mem. dec. at 3 (Mar.9, 2004) (respondent’s arrest was his second DWI offense); Police Dep't v. Solomon, OATH Index No. 1783/04, mem. dec. (Apr. 22, 2004) (respondent operated vehicle while license under suspension).

In this case, a heightened risk to public safety is established by my conclusion that respondent’s son was directly involved in the criminal activity for which Messrs. Jackson and Ellis were arrested. The charged crimes include possession of a dangerous weapon in the second degree, a crime that is categorized as "Offenses Against Public Safety." See Police Dep't v. Rice, OATH Index No. 1709/05, mem. dec. at 8 (Apr. 21, 2005); Penal Law § 265.02 (chapter heading) (Lexis 2007). The other charged crime of reckless endangerment in the second degree was based upon the dangerous operation of the vehicle. These crimes indicate that there would be a heightened risk to public safety should the car be retuned to respondent.

ORDER

The Department has satisfied its burden of proof under the Krimstock Order and is entitled to retain the vehicle pending the forfeiture action.

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Charles D. McFaul

Administrative Law Judge

March 14, 2007

APPEARANCES:

LAWRENCE SISTA, ESQ.

Attorney for Petitioner

PATRICK A. WATTS, ESQ.

Attorney for Respondent

BY: KURT CAMPBELL

[1] Petitioner submitted an updated criminal history on March 9, 2007, which has been marked as Exhibit 5A.