Police Dep't V. Pelle

- 5 -

Police Dep't v. Pelle

OATH Index No. 2666/08, mem. dec. (June 27, 2008)

Petitioner is entitled to retain respondent’s vehicle where respondent appeared by counsel only, and petitioner proved by a preponderance of the evidence that there was probable cause for the arrest, it was likely to prevail in a civil forfeiture action and there was a heightened risk to the public safety if the car were returned pendente lite.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

KEVIN PELLE

Respondent

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MEMORANDUM DECISION

INGRID M. ADDISON, 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. Respondent, Kevin Pelle, owns the vehicle, a 2001 GMC Suburban, and was driving it when it was seized following his arrest on May 30, 2007, for gun possession, reckless endangerment, unlawfully fleeing a police officer, ammunition possession, and reckless driving, in violation of Penal Law sections 265.01(1), 265.03(1), 265.03(3), 120.25; 270.25, section 10-131(i)(3) of the Administrative Code, and Vehicle and Traffic Law section 1212 (Pet. Exs. 1, 2, 3, 6). This proceeding is governed by Krimstock v. Kelly, 99 Civ. 12041 (MBM), second amended order and judgment (S.D.N.Y. Dec. 6, 2005) (the “Krimstock Order”).[1] 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).

Petitioner received respondent’s demand for a hearing on June 6, 2008, and scheduled a hearing before this tribunal on June 19. On June 17, respondent’s counsel requested an adjournment on grounds that respondent’s criminal case was scheduled for the same day. The hearing was adjourned to June 25. At the hearing, petitioner relied on documentary evidence. Respondent appeared by counsel, who represented that the criminal case is still pending.

For the following reasons, I find that the Department has proved all three elements of its case and is entitled to retain possession of respondent’s vehicle pendente lite.

ANALYSIS

In a Krimstock proceeding, the Department has the burden of establishing 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 a civil action for forfeiture of the vehicle; and (iii) that it is necessary that the vehicle remain impounded either to protect the public safety or to ensure its availability for a judgment in a civil forfeiture action. Krimstock Order, at ¶3. See generally Krimstock, 306 F.3d 40; 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 [Department’s] case,” not “exhaustive evidentiary battles that might threaten to duplicate the eventual forfeiture hearing.” Krimstock, 306 F.3d at 69-70. The probable cause inquiry includes not only an examination of the sufficiency of the evidence, but also the legality of the means by which the Department obtained such evidence. Police Dep't v. Burnett, OATH Index No. 1363/04, mem. dec. at 4 (Mar. 11, 2004), aff'd sub nom. Property Clerk v. Burnett, Index No. 04/400955 (Sup. Ct. N.Y. Co. July 19, 2004), aff’d, 22 A.D.3d 201, 801 N.Y.S.2d 592 (1st Dep’t 2005). I find that petitioner has met its burden.

The Department’s documents indicate that, at approximately 6:15 p.m. on May 30, 2007, one of its uniformed officers observed respondent’s accomplice holding a silver handgun. The accomplice stuck his hand out of the passenger side of respondent’s vehicle, which was parked at the front of premises on Rosedale Avenue in the Bronx. The officer heard a shot fired and saw a pedestrian running while respondent’s vehicle sped away from the location. The officer pursued respondent after activating her siren and turret lights and observed him driving at an excessive rate of speed. She further observed respondent run four steady red lights, without stopping, before entering the Sheridan Expressway at 177th Street. When respondent and his accomplice were apprehended at the Westchester Avenue exit of the Sheridan Expressway, a loaded, semi-automatic pistol was found in their possession. Another loaded, semi-automatic pistol, matching that which the officer initially observed, was recovered in the roadway close to where they were apprehended. Further, an empty shell casing from the discarded pistol was recovered from where the officer initially observed respondent’s vehicle (Pet. Exs. 1, 2, 3).

Respondent’s counsel challenged the integrity of the Department’s arrest report and complaint and the criminal court complaint, arguing that they constituted double hearsay and were, therefore, unreliable. Further, in asserting respondent’s right to confront his accuser, counsel relied on this tribunal’s decision in Taxi & Limousine Comm’n v. Gamliel, OATH Index No. 996/98 (July 24, 1998).

First, section 1-46 of the rules of this tribunal permits the consideration of hearsay. 48 RCNY § 1-46 (Lexis 2008). Moreover, paragraph 2 of the Krimstock Order also permits the OATH judge to consider hearsay which he/she finds reliable. See Police Dep’t v. Lee, OATH Index No. 778/08, mem. dec. (Oct. 31, 2007). Second, counsel’s reliance on Gamliel is misplaced. In that case, the affidavits submitted by the complainant and her witness differed. Moreover, respondent, who had been driving for twenty years without prior arrests or disciplinary action, submitted a letter from a person who had business dealings with the complainant and found her to be dishonest. Accordingly, this tribunal found that the hearsay evidence was not sufficiently reliable or credible to meet the Commission’s burden of proof. Here, my examination of the Department’s documents revealed nothing that would undermine their reliability. To substantiate his claim of unreliability, counsel identified a ten-minute difference in the time of occurrence between the reports. The arrest and complaint reports reflected that the incident occurred at 6:15 p.m., while the criminal court complaint reflected the time of occurrence as 6:25 p.m. Notably, the arrest report reflects that respondent placed a call at 6:25 p.m. That time could have been mistakenly transposed unto the criminal court complaint. Even though the Department did not offer an explanation, I find the difference in time too insignificant to impugn the reliability of the reports.

Counsel further contended that there was no probable cause for the arrest. He inquired into the distance of the officer from the vehicle at the time that the shot was fired and suggested that she did not see respondent in the car. Because respondent was not present to articulate the circumstances of the arrest, I find counsel’s inquiry to be speculative. Besides, his claim did not make sense. The officer chased respondent’s vehicle as it sped away immediately after the shot was fired and had him in her sight as he entered the Sheridan Expressway at 177th Street. Respondent was the driver when the vehicle was apprehended at the Westchester Avenue exit of the Sheridan Expressway. Therefore, the likelihood of someone else being the driver when the shot was fired is remote. In any event, respondent’s reckless driving gave the officer probable cause to arrest respondent and his accomplice and to search the vehicle. Police Dep’t v. Lord, OATH Index No. 942/08, mem. dec. at 6-7 (Dec. 6, 2007); People v. Robinson, 97 N.Y.2d 341, 350, 741 N.Y.S.2d 147, 152 (2001); People v. Jones, 172 A.D.2d 265, 265, 568 N.Y.S.2d 88, 89 (1st Dep’t 1991). The discovery of a semi-automatic weapon in their possession was sufficient to satisfy the second prong, that the Department is likely to succeed in a civil forfeiture action.

To establish the third prong, that is, the necessity to retain respondent’s vehicle pending the outcome of a civil forfeiture action, the Department must show that returning the vehicle to respondent would present a “heightened risk” to public safety. Police Dep’t v. Cortorreal, OATH Index No. 1479/06, mem. dec. at 7-8 (Mar. 29, 2006); Police Dep’t v. Vanegas, OATH Index No. 1056/06, mem. dec. at 3 (Jan. 10, 2006) (citing Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 285-286); Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. at 2 (Feb. 24, 2004). A heightened risk to the public safety may be established based upon the circumstances of the crime and the history of the driver. Police Dep’t v. Ahevonderae, OATH Index No. 1521/07, mem. dec. (Mar. 14, 2007) (vehicle retained in spite of dismissal of criminal charges, where respondent’s prior offenses included arrests for the same acts, using her vehicle to facilitate the illegal acts); Police Dep’t v. Rice, OATH Index No. 1709/05, mem. dec. (Apr. 21, 2005) (heightened risk found where stolen, loaded firearm was recovered from respondent’s car and respondent was in possession of a substantial quantity of cocaine); Police Dep’t v. Olberding, OATH Index No. 283/05, mem. dec. (Aug. 9, 2004) (vehicle retained where respondent ran four red lights, nearly struck pedestrians, and resisted arrest, head-butting a sergeant).

Respondent’s counsel argued that releasing the vehicle to respondent will not present a threat to the public safety because only the occupant of the vehicle had discharged the gun and there is no proof that the vehicle will be further engaged in crime. Counsel’s argument is unavailing. Respondent facilitated his passenger’s flight following the discharge of a semi-automatic weapon on a public street. Such activity is extremely dangerous and potentially deadly, intentional facilitation of which is violative of the Penal Law. See People v. Flayhart, 136 A.D.2d 767, 523 N.Y.S.2d 225 (3d Dep’t 1988), aff’d, 72 N.Y.2d 737, 536 N.Y.S.2d 727 (1988); see also People v. Taveras, 224 A.D.2d 461, 638 N.Y.S.2d 117 (2d Dep’t 1996) (“Penal Law § 20.00 imposes accessorial liability when a person intentionally aids another person to engage in conduct which constitutes an offense, while himself acting with the mental culpability required for the commission of that offense.”).

Therefore, I conclude that releasing respondent’s vehicle would pose a heightened risk to the public safety.

ORDER

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

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Ingrid M. Addison

Administrative Law Judge

June 27, 2008

APPEARANCES:

LAWRENCE V. SISTA, ESQ.

Attorney for Petitioner

WILLIAM SANNEMAN, ESQ.

Attorney for Respondent

[1] Because respondent was arrested on May 30, 2007, the second amended Krimstock order and judgment applies. The subsequent order became effective on October 1, 2007.