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Police Dep't v. Ogando

OATH Index No. 1747/07, mem. dec. (May 16, 2007)

Respondent’s motion to dismiss granted based on the Department’s failure to prove that it served respondent with notice of his right to a forfeiture hearing at the time of seizure and by mail within five business days as required by the Krimstock Order. On the merits, the Department is not entitled to retain custody of seized vehicle having failed to establish a heightened risk to public safety if the vehicle is released to respondent. Vehicle ordered released.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

DIOGENES OGANDO

Respondent

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MEMORANDUM DECISION

JULIO RODRIGUEZ,Administrative Law Judge

Petitionerbrought 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,Diogenes Ogando, is the registered and titled owner of thevehicle. 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).

The 1997 Plymouth Voyager at issue, property clerk voucher number B139219V, was seized by the Department on January 29, 2007in connection withrespondent’s arrest for drunk driving in violation of Vehicle and Traffic Law sections 1192(3) and 1192(1). The Department received respondent’s demand for a hearing on February 2, 2007, which was scheduled for February 16, 2007 under OATH Index No. 1417/07. On February 14, 2007,however, respondent signed an agreement of settlement and the case was removed from OATH’s trial calendar. On or about March 23, 2007, the Department received respondent’s second demand for a hearing and scheduled a hearing for April 6, 2007. The hearing was adjourned on respondent’s request and held on May 11, 2007.Respondenttestified at the hearing,invoked hisFifth Amendment rights and refused to answer any questions regarding the circumstances of his arrest.

Based on the reasons discussed below, I find that the Department failedto prove that it served respondent with notice of his right to a forfeiture hearing at the time of seizure and by mail within five business days as required by the Krimstock Order. On the merits, the Department failed to establish a heightened risk to public safety if the vehicle is released to respondent. Therefore, the petition is dismissed and the vehicle ordered released.

MOTION TO DISMISS

At the conclusion of the hearing, respondent’s counsel moved to dismiss the petition based on the Department’s alleged failure to serve notice of respondent’s right to a forfeiture hearing and to provide notice of the hearing date within two business days after receipt of respondent’s demand for a hearing.

Respondent was arrested and his car seized on January 29, 2007. He testified that he was not notified of his right to a forfeiture hearing either at the time of his arrest or by mail within five days thereof. Instead, he learned of his right via his counsel who, a day or two after his arrest, provided him with the form to request a hearing. Respondent completed the form and hand-delivered it to the Department on February 2, 2007. On February 5, 2007, the Department mailedrespondent a notice of hearing scheduled for February 16, 2007.

According to respondent, on February 13, 2007, Police Officer Nicholas Voglio, the Department attorney originally assigned to this case, called torequest that respondent come to his office to “fill out some papers…about the car.” It is undisputed that on February 14, 2007, respondent met with Voglio, without his attorney, and signed an agreement of settlement (Pet. Ex. 10). The Department sent a copy of the settlement to OATH via facsimile the same day and the case was removed from the trial calendar.

However, respondent contends that on February 16, 2007, he and his attorney and an interpreter appeared at OATH ready to proceed with the hearing. Despite signing the agreement of settlement, respondent testified that he did not intend to settle the case and wanted a hearing. He claimed that he did not know he was signing a settlement agreement because his primary language is Spanish and he was not sufficiently fluent in English to read and adequately understand the paperwork provided to him. Respondent testified that while at OATH on February 16, 2007, he was informed by someone from the Departmentthat the case would be re-calendared. Respondent did not know the name of the individual he spoke with. Apparently, respondent and his attorney relied on this representation and did nothing until late March.

On March 23, 2007, after not hearing from the Department, respondent, on the advice of counsel, hand-delivered to the petitioner another demand for a hearing. The Department scheduled a hearing for April 4, 2007, which was adjourned because respondent’s counsel was unavailable. The hearing was held on May 11, 2007.

The Department bears the burden of demonstrating its compliance with the notice requirements of the Krimstock Order. Police Dep’t v. Sica, OATH Index No. 1139/06, mem. dec. (Jan. 26, 2006). The Krimstock Order requires the Department to provide notice of the right to a forfeiture hearing in two distinct manners:

Notice of the right to a forfeiture hearing will be provided at the time of seizure by attaching to the [property clerk’s] voucher already provided to a person from whom a vehicle is seized a notice, in English and Spanish, as set forth below. A copy of such notice will also be sent by mail to the registered and/or title owner of the vehicle within five business days after the seizure.

Krimstock Order, ¶ 3 (Dec. 6, 2005) (emphasis added). The notice requirement in the Krimstock Order is a “double notice requirement” and does not afford the Department an either/or option. Police Dep’t v. Cardona, OATH Index No. 1476/06, mem. dec. at 3 (Mar. 29, 2006). TheKrimstock Order’s notice requirements serve to further its purpose of ensuring prompt forfeiture hearings to protect the due process rights of persons from whom vehicles have been seized without the issuance of a warrant. Krimstock, 306 F.3d at 51.

This tribunal has consistently held that the Krimstock notice requirements are to be strictly construed against petitioner. We have dismissed petitions where those requirements were not complied with. See, e.g., Police Dep’t v. House, OATH Index No. 587/07, mem. dec. (Sept. 27, 2006); Police Dep’t v. Caban, OATH Index No. 107/07, mem. dec. (July 14, 2006); Police Dep’t v. Murray, OATH Index No. 1631/06, mem. dec. (Apr. 25, 2006); Police Dep’t v. Montes, OATH Index No. 1372/06, mem. dec. (Mar. 14, 2006); Sica, OATH 1139/06.

Rather than seeking to enforce the agreement of settlement, the Department argued that it complied with the Krimstock Order’s time requirements. As proof that respondent was given written notice of his right to a forfeiture hearing, the Department submitted a copy of a vehicle seizure form it contends was served on respondent at the time of his arrest (Pet. Ex. 8d). Service of the form is typically evidenced by the arrestee’s signature in the acknowledgement of service section. An examination of the form reveals that the box next to “Defendant Refused Signature” was checked off and then crossed out. The word “UNAVAILABLE” appears on the line provided for respondent’s signature. This evidence fails to prove that respondent was served and suggests that respondent was probably not served at the time of arrest because he was unavailable. The Department adduced no evidence that respondent was served with notice by mail within five business days after the seizure. Therefore, I find that the Department failed to show that it served respondent with written notice of his right to a retention hearing at any time after the seizure.

Relying on Police Department v. Tripp, OATH Index No. 148/06, mem. dec. (July 19, 2005), the Department argued that any irregularities in providing respondent with notice of his right to a hearing does not warrant dismissal because respondent was notprejudiced. Here, as in Tripp, respondent submitted a demand for a hearing on February 2, 2007, only four days after the seizure and the hearing was scheduledfor February 16, 2007, within ten business days of respondent’s demand. The Department’s service of notice of the hearing date on respondent within one business day of receipt of his demand for a hearing was timely (Pet. Ex. 8a).[1]

In Tripp, this tribunal excused the Department’s failure to serve written notice at the time of seizure and by mail within five days thereafter and held that the procedural requirements and the policy consideration requiring a timely retention hearing embodied in the Krimstock Order had been satisfied. Paramount to the Tripp rational was that the respondent in Trippreceived a forfeiture hearing within nine business days of the seizure of the vehicle. As such, the respondent in Tripp was not prejudiced since he had theopportunity to be heard on the merits within the time frame contemplated by the Krimstock Order.Tripp,148/06, mem. dec. at 3. Here, respondent did not receive a hearing until May 11, 2007, 73 business days after the seizure.[2] Even if, as the Department contends, respondent would have had a hearing on February 16, 2007, but forthe settlement on February 14, the hearing would have occurred 14 business days after the seizure. Where the Department fails to serve notice of hearing rights at the time of the seizure and by mail within five business days thereafter, the respondent must be afforded a hearing at the earliest possible date as contemplated by the Krimstock Order. Determining the earliest possible date on which a respondent was entitled to a forfeiture hearing requires a case by case analysis. Here, fourteen business days after the seizure is beyond theearliest possible date on which respondent, the driver/owner of the subject vehicle, could have had a hearing. The fact that the case was settled on February 14, under the circumstance of this case, is not controlling. The Departmentfailed to comply with the Krimstock Order’s notice requirements. The settlement was executed 12 business days after the seizure and was objected to by respondent’s counsel based on respondent’s inability to read and understand the settlement papers and because the settlement was allegedly procured without respondent’s counsel.[3] Most significantly, the Department did not seek to enforce the settlement and tacitly conceded that respondent was entitled to a forfeiture hearing. Therefore, respondent’s motion to dismiss is granted and the petition is hereby dismissed. Had I concluded otherwise, the result would be no different because the Departmentfailed to establish that returning the car to respondent would pose a heightened risk to public safety.

Petitioner’s documentary evidence establishesthat on January 29, 2007, Police Officer Daniel Lee observed defendant in the car at issue double parked on West 202nd Street in Manhattan. After being directed to move the car, respondent drove the car about a half block to a red light. When the light turned green, respondent remained at the light, prompting the officers to direct him to move the car. At this point, respondent put the car in reverse and “backed into a parked car” (Pet.Exs. 1, 2 & 6). Upon investigating, Officer Lee noticed that respondent had watery and bloodshot eyes, slurred speech, an odor of alcohol on his breath, and was unsteady on his feet. Additionally, the Officer observed an open bottle of rum in the car. Respondent refused to submit to a breathalyzer test. Respondent’s criminal case is currently pending (Pet. Exs. 1-3).

The Department’s evidence, as respondent concedes, establishes the first and second prongs of the Krimstock Order, that is there was probable cause to arrest respondent and that it is likely that the Department will prevail in a civil action for forfeiture of the car. The focus now becomes whether the Department’s continued retention is necessary to protect the public safety or to ensure its availability for a judgment of forfeiture. 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 cash alternative for seized vehicles. See, e.g., Police Dep’t v. Junior, OATH Index No. 1134/06, mem. dec. at 4-5 (Feb. 8, 2006), citing Krimstock, 306 F.3dat 70. Therefore, the remaining issue is whether releasing the car to respondent presents a heightened risk to public safety.

The Department argued that respondent has two prior drunk driving convictions based onhiscriminal history report. An entry dated January 29, 2007, regarding the instant offense, indicates that respondent was arraigned on “DWAI Alcohol- 2 Or More Prior Convictions VTL 1192 within 10 Years, VTL 1192 Sub 01 Class U Misdemeanor” (Pet. Ex. 5). The Department’s contention is belied by the criminal court complaint, which fails to show that respondent was charged with drunk driving as a felony (Pet. Ex. 3), and respondent’s criminal history report which lists no prior drunk driving, or criminal, convictions. I decline the Department’s invitation to infer that respondent must have two or more drunk driving convictions, possibly in another jurisdiction, because his criminal history sheet indicates he was so charged. The evidence before me demonstrates that respondent has no criminal record and that the accident in which he was involved was nothing more than a minor fender-bender. See, e.g., Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. (Feb. 24, 2004). An arrestfor operating a motor vehicle while intoxicated, standing alone, is insufficient to demonstrate aheightened risk to public safety. See Police Dep’t v. Jones, OATH Index No. 1571/06, mem. dec., at 5-6 (Apr. 12, 2006); Police Dep’t v. Vanegas, OATH Index No. 1056/06, mem. dec., at4-5 (Jan. 10, 2006); McFarland, OATH 1124/04, mem. dec., at 4; Police Dep’t v. Dalley, OATH Index No. 651/06, mem. dec., at 4 (Oct. 21, 2005).

ORDER

The Department failed to satisfy its burden of proof under the Krimstock Order and is therefore directed to release respondent’s vehicle forthwith.

Julio Rodriguez

Administrative Law Judge

May 16, 2007

APPEARANCES:

NEIL BERMAN, ESQ.

Representative for Petitioner

JANE BYRIALSEN, ESQ.

Attorneyfor Respondent

[1] The envelope in which respondent received notification of the hearing scheduled for February 16, 2007 was postmarked February 6, 2007, not February 5, 2007, the date the Department contends it was mailed (Resp. Ex. B2). Whether the notice was mailed on February 5th or 6th is of no consequence since mailing on either date would have satisfied the Krimstock Order’s requirement that notice of the hearing date be sent by mail within two business days of receipt of respondent’s demand for a hearing.

[2] A total of 25 days, from April 6, 2007 to May 11, 2007, are attributable to respondent due to respondent’s counsel’s unavailability.

[3] On February 5, 2007, the Department servedrespondent’s attorney, Jane Byrialsen, Esq., with notice of the hearing scheduled for February 16, 2007 (Pet. Ex. 8a). This suggests that the Department knew or should have known that respondent was represented by counsel. Without crediting respondent’s testimony regarding the circumstances leading to and including the execution of the settlement, I think it worthwhile to point to rule 7-104(a)(1) of the Code of Professional Responsibility, which states, in relevant part, that during the course of the representation of a client a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so. N.Y. State Bar Ass’n Lawyer’s Code of Professional Responsibility, DR 7-104, reprinted at 22 NYCRR § 1200.35 (Lexis 2007).