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Police Dep't v. Vanegas

OATH Index No. 1056/06, mem. dec. (Jan. 10, 2006)

Petitioner failed to prove its entitlement to retain a seized vehicle as the instrumentality of a crime pending the outcome of a civil forfeiture hearing; vehicle released.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

ERVIN VANEGAS

Respondent

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MEMORANDUM DECISION

RAYMOND E. KRAMER,Administrative Law Judge

The petitioner, the Police Department, brought this proceeding to determine its right to retain a vehicle, a 1991 Nissan (Voucher No. B087415), seized as the alleged instrumentality of a crime pursuant to section 14-140 of the New York City Administrative Code (ALJ Ex. 1). Respondent, Ervin Vanegas, is the titled and registered owner of the vehicle (Pet. Ex. 5) and was the driver 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) (the “Krimstock Order”), as amended December 23, 2004. 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 seized respondent's vehicle on November 6, 2005, in connection with his arrest for operating a motor vehicle while under the influence of alcohol. Following receipt of respondent’s demand for a hearing, petitioner scheduled the instant proceeding for January 6, 2006. Respondent, represented by counsel, appeared at the hearing and challenged petitioner’s request to retain his vehicle until such time as a civil forfeiture hearing is commenced.

ANALYSIS

Petitioner seeks to retain the vehicle at issue as the instrumentality of a crime. Thus, petitioner has 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. County of Nassau v. Canavan, 1 N.Y.3d at 144-46, 770 N.Y.S.2d at 286; Krimstock Order ¶ 2. 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 v. Kelly, 306 F.3d 40, 69, 70 (2d Cir. 2002).

Petitioner’s case consisted entirely of documentary evidence, which, although hearsay in nature, was properly admissible (Krimstock Order ¶ 5(b)), and which I find to be reliable and credible. The arresting officer in this matter, Police Officer Joseph P. Zappia, of the 101st precinct, provided an uncontested description of the circumstances that resulted in respondent’s arrest in a criminal complaint filed by the officer in this matter in Queens County Criminal Court on November 6, 2005, as well as in the arrest and complaint reports he prepared at the time of arrest. According to Officer Zappia, he observed respondent, at about 3:47 a.m. on the morning of November 6, 2005, at Fernside Place and Plainview Avenue, in Queens, swerving from side to side while operating his 1991 Nissan. The officer pulled the car over and further observed respondent to have “bloodshot-watery eyes, an odor of alcoholic beverage on his breath, slurred speech and that the [respondent] was unsteady on his feet upon exiting [his] vehicle” (Pet. Exs. 6, 7 and 9). Respondent was thereupon taken into custody and transported to the 112th precinct, where an intoxilzyer test was administered to him. The test results indicated that respondent had a blood alcohol content of .150%. According to the officer, respondent admitted to drinking “2 to 3 beers” (Pet. Ex. 9).

Respondent was placed under arrest and his vehicle was seized and vouchered (Pet. Ex. 4). He was subsequently charged with two misdemeanor counts of operating a vehicle while under the influence of alcohol, in violation of Vehicle and Traffic Law sections 1192(2) and 1192(3) (Pet. Ex. 9).

For his part, while he did not acknowledge being intoxicated or having had any drinks prior to operating his vehicle on the date in question, respondent, at the hearing, acknowledged operating the vehicle at the time and place in question. Nor did he challenge the circumstances surrounding his arrest as described by the officer. Indeed, because his criminal matter is still pending, his testimony, by agreement, was limited to the issue of petitioner’s necessity to retain the vehicle pending a forfeiture hearing.

I therefore find that petitioner’s unchallenged documentary evidence established the first two elements that petitioner needed to demonstrate, i.e., probable cause for respondent’s arrest and petitioner's likelihood of success in a subsequent civil forfeiture action on the grounds that he used his vehicle as the instrumentality of a crime, specifically, operating a motor vehicle while under the influence of alcohol.

Respondent’s only real challenge in this hearing was to the third element that petitioner must prove in order to retain his vehicle, i.e., the necessity that the vehicle be retained pending final judgment in the civil forfeiture action. This tribunal has held that such element may be satisfied by the showing of a heightened risk to public safety if the vehicle were to be returned. See Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 285-86; Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. at 2 (Feb. 24, 2000). Petitioner contended that such heightened risk exists in this instance, primarily based on respondent’s relatively high blood alcohol reading (.150%) as obtained from the intoxilzyer test.

Respondent, in contrast, argued that there were no particular aggravating circumstances surrounding his arrest in this case or other factors which might indicate a heightened safety risk to the public if his car was returned. Respondent further argued that a single instance of charged, but as of yet unproven, misdemeanor operation of a motor vehicle under the influence of alcohol, without more, is insufficient to demonstrate a necessity to retain the vehicle.

Respondent testified that he is married and has an eight-year old son, and that he lives with his family and his disabled mother in Far Rockaway, Queens. He is a permanent resident alien, who has lived in this country for sixteen years and in Far Rockaway for the past eight years. Respondent is gainfully employed as a landscaper and has been for some fifteen years, but since his work is seasonal, he stops working during the winter months. He maintained that he needed his car to be returned because he uses it to commute to work in season and to run family errands, most importantly, to take his son to and from school and to take his mother to the local hospital three times a week for kidney dialysis. While he conceded that his son could be walked to school and that he could place his mother on public transportation, the distances and inconveniences involved in the exercise of those options were significant. His mother, for example, has no social security card which would make her eligible for a reduced fare on the bus. There are no other cars or licensed drivers in his immediate family unit, although he has been able to obtain help from extended family members during periods when he was unavailable or, such as now, unable to drive. Although respondent’s license was suspended as a result of his arrest, he applied for and received a conditional license from the Department of Motor Vehicles, which at the present restricts his driving to a few hours on Fridays. However, he is in the process of seeking an unrestricted conditional license with the help of counsel, who believes that the only reason he did not receive such unrestricted license on his initial attempt was because of mistakes he made in the application because there was no Spanish language version.

Respondent’s criminal history, as presented by petitioner, indicates that he has one prior conviction, in 1993, for acting in a manner likely to injure a child under the age of 17, a class A misdemeanor. Respondent was sentenced to three years’ probation upon that conviction and had an order of protection issued against him (Pet. Ex. 8). He has no other criminal history and no history of alcohol-related offenses or operating a motor vehicle while intoxicated or impaired. He was also released at his arraignment on his own personal recognizance, an indication of his significant ties to the community and low risk of flight from the legal process.

After careful consideration of the evidence presented, I find that petitioner failed to show that the temporary return of respondent’s vehicle would present a “heightened” risk to public safety. This case is similar to several cited by respondent, in which this tribunal has held that the mere fact of a single arrest for operating a motor vehicle while intoxicated, without more, is insufficient to demonstrate a heightened risk to public safety. See Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. at 3-5 (Feb. 24, 2000); Police Dep’t v. Dalley, OATH Index No. 651/06, mem. dec. at 4 (Oct. 21, 2005); Police Dep’t v. Cruz, OATH Index No. 339/06, mem. dec. at 3 (Aug. 19, 2005); Police Dep’t v. Javier, OATH Index No. 241/06, mem. dec. at 3-4 (Aug. 5, 2005); Police Dep’t v. Chirico, OATH Index No. 2205/05, mem. dec. at (June 28, 2005); Police Dep’t v. Fung, OATH Index No. 1195/05, mem. dec. at 6 (Jan. 27, 2005). In several of the cited cases, respondents were involved in minor accidents, in addition to being arrested for the first time for a driving while intoxicated offense, and still had their vehicles returned. There was no motor vehicle accident in this case, nor any citations issued by the arresting officer for vehicle and traffic infractions.

While respondent’s blood alcohol content was relatively high at the time of his arrest, it was not nearly as extreme as those in Police Dep’t v. Serrano, OATH Index No. 499/06, mem. dec. at 5 (Sept. 22, 2005), cited by petitioner, or Police Dep’t v. Cevallos, OATH Index No. 552/06, mem. dec. at 7 (Oct. 24, 2005), where respondents were denied return of their vehicles despite no prior offenses because their blood alcohol readings at the time of arrest were so high (.207% and .239% on a retest in Serrano and .220% in Cevallos) were so high that they demonstrated a certain recklessness sufficient to find a heightened public safety risk. In Police Dep’t v. Cevallos, there was an additional risk of loss of the vehicle if released because it was registered in Florida and respondent indicated an intention to move there. This case is also readily distinguishable from Police Dep’t v. Busgit, OATH Index No. 1616/05, mem. dec. at 4-6 (Apr. 4, 2005), also cited by petitioner, where return of a vehicle was denied to respondent, not so much because he had a .126% blood alcohol reading as petitioner noted, but because he was a repeat offender and had already been convicted upon a plea of felony driving while intoxicated at the time of his request for return of the vehicle, making the risk of sale, loss or destruction of the vehicle if returned, untenable.

There was no evidence in this case of any significant risk of sale, loss or destruction of the vehicle if returned to respondent. See Police Dep’t v. Pierre-Louis, OATH Index No. 1452/04, mem. dec. at 3-4 (Mar. 24, 2004). The likely resale value of a 1991 Nissan is bound to be very low and, moreover, respondent convincingly demonstrated his continued need for an automobile for work and legitimate family purposes. Respondent has a restricted conditional license and is attempting to get an unrestricted one while his criminal matter is still pending.

In the circumstances, petitioner has failed to demonstrate a need to retain the vehicle to protect the public or to preserve the property from loss, sale, or destruction.

ORDER

The Department is directed to return the seized vehicle to respondent forthwith, subject to a release by the District Attorney’s Office indicating that the car is not required as evidence in the pending criminal matter.

Raymond E. Kramer

Administrative Law Judge

January 10, 2006

APPEARANCES:

KATE DMOCHOWSKI, ESQ.

Attorney for Petitioner

THE LEGAL AID SOCIETY

Attorneys for Respondent

BY: ELIZABETH NEWTON, ESQ.