Police Dep't V. Yun Huang

1

Police Dep't v. Yun Huang

OATH Index No. 2519/08, mem. dec. (June 5, 2008)

Petitioner is entitled to retain respondent’s vehicle where, with her knowledge, the driver used the modified vehicle for the sole purpose of selling counterfeit goods. Because the driver, her husband, has an extensive history of similar unlawful conduct with the same vehicle, there is a substantial risk that, upon release of the vehicle, the criminal activity will resume.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

SUE YUN HUANG

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 Sue Yun Huang is the registered owner of the vehicle (Pet. Ex. 6). Lin Cun Liang, her husband, was the driver of the vehicle at the time of seizure. 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).

Respondent’s seized vehicle is a 2003 Chevrolet Astro Van, property clerk voucher No. B194226V (Pet. Ex. 3). Petitioner seized the vehicle after Mr. Liang was arrested on February 23, 2008, on the criminal charge of trademark counterfeiting in the third degree, in violation of section 165.71 of the Penal Law (Pet. Exs. 4, 5, 7). Following receipt of the respondent’s demand for a hearing on May 20, petitioner scheduled a hearing for May 30. At petitioner’s request, and without objection from respondent, the hearing was adjourned to June 3. At the hearing, respondent appeared with Mr. Liang. Respondent and Mr. Liang were provided with a Mandarin interpreter by this tribunal and were notified of their right to representation. They opted to proceed without counsel. Petitioner relied on documentary evidence, and called respondent and Mr. Liang as witnesses.

For the reasons set forth below, I conclude that petitioner satisfied the elements of the Krimstock Order. Moreover, I find that respondent facilitated her husband’s use of the vehicle, thereby defeating her innocent owner defense. Accordingly, petitioner is entitled to retain possession of the vehicle pending a civil forfeiture action.

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.

Petitioner demonstrated that there was probable cause for the arrest and it is likely to prevail at a civil forfeiture action. The evidence revealed that, on February 23, 2008, at about 2:16 p.m., a police officer observed Mr. Liang at the corner of Lafayette and Walker Streets displaying and offering for sale handbags bearing fake designer labels. The officer arrested him (Pet. Exs. 4, 5). Mr. Liang admitted that he had been arrested on two prior occasions for using the same vehicle for the same illegal activity of selling counterfeit handbags but contended that, this time, the police had no probable cause for his arrest because he was not selling anything. Rather, he claimed that he was taking a jacket out of the car when the police officer recognized him from the prior arrests and arrested him again.

This challenge to the legality of his arrest is unavailing because Mr. Liang admitted that, on February 24, he pled guilty to disorderly conduct, and was given a one-year conditional discharge and sentenced to five days of community service (Pet. Ex. 8). Thus, any claims challenging his arrest are extinguished. The criminal conviction establishes the first two Krimstock prongs. Police Dep’t v. Amaro, OATH Index No. 317/08, mem. dec. at 6 (Aug. 21, 2007); Police Dep’t v. Kinchen, OATH Index No. 810/07, mem. dec. at 3 (Nov. 6, 2006); Police Dep’t v. Cruz, OATH Index No. 1643/06, mem. dec. at 3 (Apr. 25, 2006); Police Dep’t v. Ojeda-Burgos, OATH Index No. 1959/05, mem. dec. at 3 (June 9, 2005); Police Dep’t v. Ayala, OATH Index No. 1539/05, mem. dec. at 4 (Apr. 5, 2005), citing Berman v. Turecki, 885 F. Supp. 528, 533 (S.D.N.Y. 1995), aff’d without op., 1996 U.S. App. LEXIS 3026 (2d Cir. 1996) (“[a] guilty plea ‘disposes of any issue pertaining to the constitutionality of [party’s] arrest, interrogation, search and prosecution’”) (citations omitted).

In spite of a guilty plea and conviction of the arrested driver, prong two, the likelihood that petitioner will prevail in a civil forfeiture action, may be defeated if the owner of a vehicle, who was not the driver at the time of seizure, successfully asserts that he/she is an “innocent” owner, entitled to the return of the vehicle.

Where the issue of innocent ownership is raised, the Department bears the burden of showing that this owner is not an innocent owner entitled to the return of the 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). This rule regarding proof of innocent ownership is founded upon the Administrative Code provision that allows for seizure of property where the owner permitted it to be used as an instrumentality of crime. 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, courts have concluded that a statute, such as Administrative Code section 14-140, 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.

Although no claim of innocent ownership was expressly articulated here, I considered the issue due to respondent’s pro se status and the fact that she was not the driver of the vehicle at the time of seizure. Respondent testified that she was aware that Mr. Liang had been arrested on two prior occasions for the same criminal activity. On the second occasion, she was listed as the titled owner of the vehicle. Thus, even if she had been unaware of his use of the vehicle at one time, an innocent ownership claim would be disingenuous now. Moreover, at the hearing, respondent admitted knowledge of Mr. Liang’s use of the vehicle but tried to assure this tribunal that her husband will cease his use of the vehicle for criminal activity. No testimony was elicited that respondent gave Mr. Liang her express permission to use the van. However, from her admitted status as a homemaker and Mr. Liang’s status as the sole provider whose prior illegal use of the van was well known to respondent, I drew the inference that Mr. Liang used it with her knowledge and without her objection. Respondent implored this tribunal to release the vehicle because it was needed to transport the family. This was not credible because the back seats had been removed and the rear of the vehicle had been outfitted with shelves to display the handbags, rendering it useless for the transportation of more than one passenger.

From her testimony, it was clear that respondent was complicit in her husband’s criminal activity and would be unable to avail herself of the innocent owner defense. See Ojeda-Burgos, OATH 1959/05 (innocent owner defense rejected where mother, co-owner of the vehicle, knew or should have known that son’s use of the unregistered and uninsured vehicle was a crime).

I find, therefore, that the Department has met its burden of establishing that respondent is not an innocent owner.

The third prong requires petitioner to prove that release of the vehicle poses a heightened risk to public safety. Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86 (retention of a vehicle is a rational means of protecting the public from repeated drunk driving); see also Property Clerk v. Harris, 9 N.Y.3d 237, 244, 247, 848 N.Y.S. 588, 593, 595 (2007) (vehicle may be retained pending forfeiture proceeding to prevent “further criminal conduct”). To meet this prong, petitioner need not establish that respondent is an immediate threat to life and limb, but it must “prove more than the fact that the seized vehicle was the instrumentality of a crime.” Police Dep’t v. Olberding, OATH Index No. 283/05, mem. dec. at 3 (Aug. 9, 2004), citing Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. (Feb. 24, 2004).

A heightened risk to public safety may be shown by the nature of the offense, the driver’s background, or the history of the vehicle. See, e.g., Police Dep’t v. Ahevonderae, OATH Index No. 1521/07, mem. dec. at 5 (Mar. 14, 2007) (heightened risk shown by repeated use of vehicle to transport illegal cigarettes and driver’s history of “indifference to the law”); Police Dep’t v. Walton, OATH Index No. 1037/08, mem. dec. at 5 (Feb. 28, 2008) (driver repeatedly used the same vehicle to sell drugs). Thus, a pattern of illegal activity trumps assurances that there will be no further repetition of the activity. Police Dep’t v. Zhang, OATH Index No. 2419/08, mem. dec. (May 20, 2008) (respondent’s past assurances that he would stop selling counterfeit handbags proved to be false); Police Dep’t v. Zhang, OATH Index No. 1791/08, mem. dec. (Mar. 26, 2008) (respondent’s claim that he would no longer use the vehicle to sell fake handbags was discredited by his persistent criminal conduct).

Here, there was no doubt that Mr. Liang was a persistent offender. This vehicle was seized on two occasions last year for the same illegal activity of trademark counterfeiting. On both occasions, he paid a fine and the vehicle was released. Notably, the motor vehicle records indicate that, some time after the first arrest in February 2007, Mr. Liang conveyed title to his wife, the respondent. His assurance that he would cease selling fake handbags was meaningless given his statement that this was the way he earned a living when he was not otherwise employed at a clothing factory, two to three days per week. Moreover, his reiteration of his wife’s claim that the vehicle was needed to transport their four children was equally incredible because, as previously mentioned, the vehicle was not equipped for the transportation of more than one passenger. Therefore, petitioner proved that it is necessary to retain this vehicle to prevent further criminal misuse.

ORDER

The Department has satisfied its burden of proof under the Krimstock Order, that probable cause existed for Mr. Liang’s arrest, it is likely to prevail at a civil forfeiture action, and retention of the seized vehicle is necessary to prevent further criminal misuse. The Department may retain respondent’s vehicle pending the outcome of the forfeiture proceeding.

Ingrid M. Addison

Administrative Law Judge

June 5, 2008

APPEARANCES:

KATHLEEN FAHEY, ESQ.

Attorney for Petitioner

SUE YUN HUANG

LIN CUN LIANG

Respondents, pro se