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Police Dep't v. Walton
OATH Index No. 1037/08, mem. dec. (Feb. 28, 2008)
Petitioner is entitled to retain custody of seized vehicle having demonstrated that respondent is not an innocent owner. Vehicle ordered to be retained.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against -
NETHERLAND WALTON
Respondent
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MEMORANDUM DECISION
JOHN B. SPOONER,Administrative Law Judge
Petitioner, the Police Department ("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 Netherland Walton is the registered owner of the vehicle, which was seized from Shivon Jacob, her son. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (HB), third amended order and judgment (S.D.N.Y. Sept. 27, 2007) (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 vehicle in issue is a 1999 BMW, property clerk voucher No. B168714, which was seized by the Department on October 2, 2007, following the arrest of Mr. Jacob for possession of narcotic drugs with intent to sell (Pet. Exs. 1 & 2). Respondent’s demand for a hearing was received by the Department on November 12, 2007 (Pet. Ex. 8D). Trial of this matter was initially scheduled for November 26, 2007, but adjourned twice by respondent. The first adjournment, to December 10, 2007, was granted to permit respondent additional time to find an attorney. The second adjournment, to December 20, 2007, was based upon respondent’s statement that her baby was ill and that she needed still more time to obtain an attorney.
On December 20, 2007, respondent appeared and indicated that her efforts to find an attorney had been unsuccessful. Nonetheless, she went forward with the hearing, representing herself and testifying in support of her contention that she was an innocent owner. After the close of the hearing, I discovered, in reviewing the record, that the vehicle was being held by the District Attorney’s office as evidence. I immediately wrote to the parties and notified them that the case would be taken off calendar until such time as the District Attorney released the vehicle. Upon receiving notice from petitioner that the vehicle had been released by the Bronx District Attorney’s office, I wrote to the parties by e-mail and regular mail on February 25, 2008, indicating that, absent objection by one of them, the case would be adjudicated based upon the December 20, 2007, hearing record and my decision would be issued on February 28, 2008. No objection was received.
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
The Department seeks to retain the seized vehicle as the instrumentality of a crime pending the outcome of its civil forfeiture action. To do so, the Department bears the burden of proving three elements by a preponderance of the evidence that: (i) probable cause existed for the arrest pursuant to which the vehicle was seized; (ii) it is likely that the Department will prevail in a civil action for forfeiture of the vehicle; and (iii) it is necessary that the vehicle remain impounded either to protect the public safety or to ensure its availability for a judgment of forfeiture. Krimstock Order, at 3; Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286. The due process rights at issue here require 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; see Canavan, 1 N.Y.3d at 144-45 n.3, 770 N.Y.S.2d at 286 n.3, citation omitted (hearing is intended to establish “the validity, or at least the probable validity, of the underlying claim”). The Department has met its burden here.
On October 2, 2007, at around 5:30 p.m., Mr. Jacob was driving the 1999 BMW owned by respondent on White Plains Roadin the Bronx. According to a statement (Pet. Ex. 3) offered by Officer Jeremiah Williams in criminal court (Pet. Ex. 3), the officer observed the BMW pull up beside a silver Mazda. Michael Campbell, one of the BMW passengers, got out and counted something in his left hand, placed it in a plastic bag, and handedthe bag to Jemima Young, the other BMW passenger. Mr. Campbell then got into the Mazda and handed a small object to Robert Galluzzo, the Mazda driver. Mr. Galluzzo then gave Mr. Campbell a sum of cash. Both Mr. Galluzzo and Mr. Campbell, as well as Mr. Jacob and Ms. Young, were then apprehended. Mr. Galluzzo was in possession of two small purple bags containing crack cocaine and Ms. Young had 28 plastic bags of crack cocaine inside her bra. Mr. Campbell, Ms. Young, and Mr. Jacob were arrested and charged with acting in concert to sell a controlled substance in the third degree, to possess a controlled substance in the third degree, and to possess a controlled substance in the seventh degree.
The criminal records (Pet. Ex. 4) indicated that Mr. Jacob and his two co-defendants were indicted on October 30, 2007, for sale of a controlled substance in the third degree, possession of a controlled substance in the third degree, and possession of a controlled substance in the seventh degree. They were arraigned on November 15, 2007, and the case remains pending.
The records also reflect that Mr. Jacobs was previously arrested for possession of a controlled substance with intent to sell on September 6, 2006, and, at that time, the same BMW was seized. In a negotiated settlement with the Police Department, respondent was permitted to recover the BMW by signing an agreement (Pet. Ex. 8) under which she agreed not to release the BMW to Mr. Jacob and acknowledging that she was “now on notice of SHIVON JACOB’S criminal propensity and may not claim lack of knowledge of such should SHIVON JACOB be arrested in any of [her] vehicles.”
At the hearing, respondent expressed surprise as to the language of the agreement, insisting that her attorney had dealt with the Department in negotiating the return of the vehicle and that she was not aware that she was not supposed to permit Mr. Jacob to drive the car. She nonetheless acknowledged that she had signed the agreement in order to obtain the return of her car. She also asserted that her son told her that he was only offering a ride to some friends and that she had been unaware of any drug activity.
This record is sufficient to establish probable cause for the arrest of Mr. Jacob. See Property Clerk of the Police Dep’t of the City of New York v. Burnett, Index No. 04/400955 (Sup. Ct. N.Y. Co. 2004), aff’d, 22 A.D.3d 201, 801 N.Y.S.2d 592 (1stDep’t 2005). As set forth above, the arrest report (Pet. Ex. 1) and criminal court complaint (Pet. Ex. 3) indicate that Mr. Jacob was observed stopping the BMW beside another vehicle, whereupon one of the BMW passengers passed plastic bags of cocaine to the other passenger, who sold the cocaine to the driver of the other car. Cocaine was recovered from the other driver and from one of the BMW passengers. This provided probable cause to arrest all three occupants of the BMW for sale of controlled substances. See Penal Law § 20.00 (“When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.”); People v Accely, 272 A.D.2d 337, 707 NYS2d 191(2nd Dep’t2000) (driver of vehicle used to transport defendants to scene of robbery held liable for crime of first degree robbery).
The Department also established the second prong, a likelihood of success in the subsequent civil forfeiture action, by showing that the vehicle was the “instrumentality” of a crime. The vehicle was used to transport and sell crack cocaine. I find that this evidence is sufficient to prove that the vehicle was an instrumentality of a crime.
Additionally, to establish its likelihood of success, the Department bears the burden of showing that respondent is not an “innocent” owner entitled to the return of her vehicle. See Property Clerk, New York City Police Dep’t v. Pagano, 170 A.D.2d 30, 34-35, 573 N.Y.S.2d 658, 661 (1st Dep’t 1991). The rule regarding “innocent” owners springs from the Administrative Code provision that prohibits claimant-owners who use property to commit a crime “or permitted or suffered the same to be used” for unlawful activity from reclaiming such property. Admin. Code § 14-140(e); see also Krimstock, 306 F.3d at 48, n.9. To establish a basis for determining which owners are innocent and which are not, courts have concluded that a statute that 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.” Pagano, 170 A.D.2d at 35, 573 N.Y.S.2d at 661.
The record leaves no doubt that respondent was well aware that her son was involved in illegal drug activity. In fact, she reclaimed her vehicle in 2006 after Mr. Jacob’s arrest for a drug sale. As part of her agreement, she agreed not to permit Mr. Jacob to use the vehicle and expressly waived any future claims that she was ignorant of his drug arrests. This history establishes conclusively that respondent was not only on notice of her son’s illegal drug activities but violated a written agreement not to let her son drive her car after a previous drug arrest. Any claim by respondent that she is an innocent owner is utterly refuted by this record.
Finally, the Department must show that respondent poses a heightened risk to the public if the vehicle is returned to her. A “heightened risk” to the public may be evidenced by the history of the driver of the seized vehicle. Police Dep't v. Solomon, OATH Index No. 1783/04, mem. dec. (Apr. 22, 2004). In the instant case, Mr. Jacob’s prior arrest for sale of drugs using the same vehicle establishes a substantial risk to the public that he would use the vehicle to facilitate future illegal cocaine sales. See, e.g., Police Dep't v. Hines, OATH Index No. 430/06, mem. dec. (Sept. 6, 2005) (prior drug convictions establish risk of further use of vehicle for drug sales and warrant retention); Police Dep't v. Rivera, OATH Index No. 1272/04, mem. dec. (Mar. 10, 2004) (quantity of drugs confiscated establish a risk of “continued use of the vehicle for further drug dealing” and warrant retention). This prong, too, has therefore been adequately proven.
ORDER
The Department has satisfied its burden of proof under the Krimstock Order and is entitled to retain the vehicle pending the forfeiture action.
John B. Spooner
Administrative Law Judge
February 28, 2008
APPEARANCES:
CARRIE TALANSKY
Attorney for Petitioner
NETHERLAND WALTON