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Police Dep't v. Jones
OATH Index No. 1943/07, mem. dec. (May8, 2007)
Petitioner’s evidence established probable cause for respondent’s arrest and the likelihood of success in a subsequent forfeiture action. Judge finds respondent does not pose a heightened risk to public safety and orders vehicle released.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against -
MICHAEL JONES
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 seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. Respondent is the driver and registered owner from whom the vehicle was seized. 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 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).
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The subject vehicle, a 2001 BMW model X5 sport utility vehicle, voucher No. B116042V, was seized on July 30, 2006, in connection with Mr. Jones’s arrest for possession of a weapon in the second degree and menacing in the second degree. Upon receipt of respondent’s request for a retention hearing, petitioner scheduled the hearing for May 3, 2007. For the reasons set forth below, I find petitioner has not shown that it is entitled to retain the seized vehicle pending the outcome of the forfeiture action and order that it be released to respondent.
ANALYSIS
The Department seeks to retain the seized vehicle as the instrumentality of a crime pending the outcome of its civil forfeiture action. To retain the vehicle as the instrumentality of a crime, the Department bears the burden of proving three elements 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 the Department will prevail in its civil forfeiture action regarding 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; County of Nassau v. Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286 (hearing is intended to establish “the validity, or at least the probable validity, of the underlying claim”).
At the outset of the proceeding, respondent conceded the first two prongs of the Krimstock Order. Only the third prong remains in dispute -- the necessity to retain the vehicle, which requires a showing of a heightened risk to public safety.[1] The material facts underlying the criminal charges in this case are not in dispute. At about 6:30 p.m. on July 30, 2006, a police officer observed respondent with a gun in his handchasing two young men down the street. Respondent left the scene in his car and was promptly apprehended by the police. A loaded .38 caliber semi-automatic handgun and a box of ammunition were recovered from respondent’s car (Pet. Ex. 3). Respondent was arrested and subsequently indicted on two felony counts of criminal possession of a weapon in the third and fourth degrees. On February 8, 2007,respondent pled guilty to criminal possession of a weapon in the third degree, a class D felony, and was sentenced to five years' probation and 300 hours of community service (Pet. Exs. 3 & 4).
Mr. Jones was called as a witness by petitioner and offered his description of the events leading to his arrest. He explained that his son Kwan had been abusing or bullying another son, Michael, who is severely disabled from cerebral palsy. Both sons are adults and live apart from respondent and his wife. On the day of his arrest, he was going to “chastise” his son Kwan to stop him from bullying Michael. He took the gun with him out of “fear” because he had previously seen Kwan with a gun. Respondent admitted to possessing the gun for about 20 years and knew it was illegal to do so without a permit.
Respondent stated that he is employed as a substance abuse counselor and has worked in this field for almost 20 years. He and his wife have continued to make the $900 monthly loan and insurance payments on the BMW since it was seized because they are trying to protect their credit rating. He and his wife do not want to default on the car loan. He said that although the car is registered in his name, his wife is co-owner and offered the loan agreement as evidence of that fact (Resp. Ex. A).
Respondent freely admitted prior convictions for various crimes, most of which were misdemeanors involving petit larceny, possession of drugs and stolen property. The most serious was a 1979 conviction for robbery in the first degree, a class B felony for which he was sentenced to three years in prison. While acknowledging his prior conviction record,respondent emphasized that the crimes were committed more than 20 years ago.
Respondent testified that he and his wife purchased the BMW sport utility vehicle to provide transportation for his son and himself. Because he suffers from AIDS, respondent regularlysees his doctors as often as three times a week. He takes various medications for his illness, some of which make him feel confused or lost. His disabled son Michael has to be taken to physical therapy two or three times a week, but his wife’s Toyota Camry does not have a large enough trunk for his son’s wheelchair. Respondent urges release of the vehicle to avoid further hardship on his family. The BMW is larger than the Toyota Camry and provides transportation to and from medical appointments for himself, his paralyzed son and his father-in-law.
Petitioner argues that respondent’s conviction is a serious crime that involved a loaded firearm under circumstances that represent a heightened risk to public safety. Respondent intentionally took a loaded gun to an encounter with his son that he had reason to expect could become violent. Petitioner also argues that respondent has access to his wife’s car for purposes of transportation to his doctors and that his medications may make him unfit to drive safely.
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Despite the difficult personal circumstances respondent described at trial and the fact that retention of the vehicle would pose additional hardship on respondent and his family, hardship is not a basis for releasing a vehicle where doing so poses a heightened risk to public safety. See Police Dep’t v. Busgit, OATH Index No. 1616/05, mem. dec. at 6 (Apr. 4, 2005); Police Dep’t v. Williams, OATH Index No. 1057/06, mem. dec. at 3 (Feb. 2, 2006). 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. Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. at 2, (Feb. 24, 2006), 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. See,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. Mohammed, OATH Index No. 1159/04, mem. dec. at 3 (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).
Respondent’s recent conviction represents a significant mistake at this point in his life. His actions were apparently triggered by his parental instinct to protect a seriously disabled sonfrom abuse by an older brother, Kwan. Respondent was afraid that his encounter with Kwan could become dangerous, so he brought along the gun he has had for almost 20 years and ended up chasing two men down the street with the gun in hand. Neither party asked respondent to explain what happened during the encounter with Kwan or why he was seen pursuing the two men. The record is incomplete as to these details. Suffice it to say that respondent’s behavior was reckless and could have turned a family argument into a family tragedy.
Although respondent’s actions were reckless, I doubt that he presentsa future risk to public safety. He is a middle-aged man who has been working as a drug rehabilitation counselor for almost 20 years and has been employed in that capacity for the past six years by one of the City’s hospitals. His prior criminal record suggests that he himself was addicted to drugs. He has, however, had no contact with the criminal justice system for more than 20 years and has been a law abiding citizen. This shows that he has reformed his life and now offers help to others who suffer from drug addiction. There is no indication that hisrecent conviction reveals a likelihoodof other criminal activity.
At the hearing, respondent was remorseful for his behavior and appeared to recognize that it was a terrible mistake in judgment. The sentence imposed on respondent by the Supreme Court reflects a substantial measure of leniency, perhaps reflecting mitigation derived from respondent’s circumstances. At 51 years of age and dealing with the disabilities resulting from his illness, it is unlikely respondent will pose a further risk to public safety. Under the circumstances presented here, I do not find that petitioner has sufficiently demonstrated a heightened risk to public safety justifying further retention of the vehicle. See Police Dep’t v. Javier, OATH Index No. 241/06, mem. dec. at 4 (Aug. 5, 2005) (retention not necessary where respondent is a “hard-working individual with solid roots in the community” and arrest was an aberration in an otherwise law abiding life); Police Dep’t v.Arnold, OATH Index No. 377/07, mem. dec. at 5 (Aug. 22, 2006) (leniency shown in criminal case was strong indication that respondent was not seen as a significant threat to the public). The overriding impression from respondent’s demeanor and the substance of his testimony is that he seeks to recover his car to provide necessary transportation for his disabled son and that he does not pose a heightened risk to the public.
ORDER
Accordingly, the Department is ordered to release respondent’s vehicle forthwith.
Charles D. McFaul
Administrative Law Judge
May 8, 2007
APPEARANCES:
JOHN BEATTY, ESQ.
Attorney for Petitioner
JACOBS AND COHEN
Attorneys for Respondent
BY: JAY DENNIS COHEN, ESQ.
[1] In the past, the third prong was established where petitioner proved that there was a danger that the respondent would dispose of the vehicle prior to the forfeiture proceeding or where the respondent posed a heightened risk to public safety. Police Dep’t v. Tripp, OATH Index No. 148/06, mem. dec. at 7 (July 19, 2005). More recently, however, this tribunal has rejected the argument that retention is necessary to preserve asset value because the Department has not established a procedure for posting of a bond, or cash alternative, for seized vehicles. See, e.g., Police Dep’t v. Junior, OATH Index No. 1134/06, mem. dec. at 4 (Feb. 8, 2006), citing Krimstock, 306 F.3d at 70.