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Police Dep't v. Zuleta
OATH Index No. 1223/06, mem. dec. (Feb. 10, 2006)
Petitioner proved its entitlement to retain a seized vehicle as the instrumentality of a crime pending the outcome of a civil forfeiture hearing.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against -
GUSTAVO ZULETA
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 1998 Chrysler (Voucher No. B119147), seized as the alleged instrumentality of a crime pursuant to section 14-140 of the New York City Administrative Code (ALJ Ex. 1). Respondent, Gustavo Zuleta, is the 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), 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). Petitioner seized respondent's vehicle on January 18, 2006, in connection with his arrest for operating a motor vehicle while under the influence of drugs, in violation of Vehicle and Traffic Law section 1192(4) (LEXIS 2005), criminal possession of marijuana in the fifth degree and unlawful possession of marijuana, in violation of Penal Law sections 221.10 and 221.05 (LEXIS 2005) respectively. Following receipt of respondent’s demand for a hearing, petitioner scheduled the instant proceeding for February 7, 2006. Respondent appeared pro se 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. To do so, petitioner bears the burden of proving three elements 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); Krimstock v. Kelly, 306 F. 3d 40, 69-70 (2d Cir. 2002), cert. den., 539 U.S. 969, 123 S.Ct. 2640 (2003); 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”).
Petitioner’s case consisted entirely of documentary evidence, which, although hearsay in nature, was properly admissible (Krimstock Order ¶ 5(b)). The arresting officer in this matter, Police Officer Frederic Lewis, provided a description of the circumstances that resulted in respondent’s arrest in a criminal complaint filed by the officer in Bronx Supreme Court on January 19, 2006. According to Officer Lewis, on the night of January 18, 2006, at about 8:35 p.m., he observed respondent Zuleta seated behind the steering wheel of a 1998 gold Chrysler Sebring, which was parked in front of a fire hydrant at 1253 Evergreen Avenue, in the Bronx. Although the car was stationary, the key was in the ignition and the motor was running at the time (Pet. Ex. 9).
Officer Lewis asserted in the complaint that when he approached the vehicle, he smelled a distinctive odor, which, based on his training and experience, he determined to be marijuana. He additionally observed respondent Zuleta to have bloodshot eyes and “stilted” and “slow” speech. According to the officer, respondent Zuleta exclaimed to him, “I smoked the weed already, give me a break” (Pet. Ex. 9). Officer Lewis further wrote that he observed in “plain view” in the ashtray of the vehicle, within Mr. Zuleta’s “custody and control,” a “dried, green, leafy substance with a distinctive odor,” which he again recognized by his training and experience as marijuana. The marijuana was seized and vouchered at the Property Clerk’s Office (Pet. Exs. 6, 7, 9 and 11).
Respondent was arrested for misdemeanor criminal possession of marijuana, in that he possessed marijuana that was in a “public place;” unlawful possession of marijuana as a violation; and operating a motor vehicle while under the influence of drugs. He was transported to the precinct and his vehicle impounded and vouchered at the Property Clerk’s Office (Pet. Ex. 4). While at the precinct, respondent voluntarily submitted to a urinalysis, which proved positive for the presence of marijuana.
Respondent Zuleta, after being advised of his 5th Amendment right to remain silent and to notincriminate himself, and the potential consequences that his testifying in this proceeding might have on his still pending criminal proceeding, nonetheless elected to testifyin his own behalf. For the most part, he confirmed the written account of Officer Lewis, with a few key exceptions. Thus, he acknowledged being the owner of the 1998 gold Chrysler Sebring at issue; that when he was approached by Officer Lewis, the car was parked in front of a fire hydrant on Evergreen Avenue, in the Bronx; that he was seated behind the wheel; that a “roach,” or butt end of a marijuana cigarette “may” have been recovered from the vehicle’s ashtray; and that the car “may” have emitted an odor of marijuana. Respondent, however, denied that the car motor was running at the time the officer approached or that he was operating the vehicle; that he had used marijuana within the past twenty-four hours; that he was under the influence of or impaired by marijuana at the time that he was arrested; or that any marijuana that may have been recovered from his vehicle was his.
According to respondent Zuleta, he works at the Food Bank for New York City in the Bronx, on both a paid and volunteer basis, and uses his car to commute to work. On the day in question, Wednesday, January 18, 2006, he was on vacation and spent the day hanging out at a friend’s house across the street from his home. He denied smoking marijuana that day, although he acknowledged that he “may” have smoked marijuana the day before and candidly volunteered that he has been a “heavy weed smoker,” which by his definition, means more than once a week. He admitted that he smoked marijuana between one and three times a week, but claimed that he has now quit smoking marijuana as a result of this incident.
Respondent testified that he had his car parked on the street in front of his house, but at about 8:30 p.m. decided to move it to Evergreen Avenue, about ten blocks away. Respondent explained that the car has a cracked windshield, which he has not had the money to fix for several months, and that he has been ticketed several times for it in his neighborhood. Indeed, a Department of Motor Vehicles (DMV) printout submitted by petitioner, indicates repeatedfailures to pay fines, some of which respondent conceded related to his failure to fix his windshield (Pet. Ex. 10). Respondent testified that he had gotten into the habit of parking his car over on Evergreen Avenue, or in that area, because he thought it was less likely that his car would be ticketed. He had trouble starting the car that night because of the cold, so he called his friend Mr. Sanchez to come over in the latter’s vehicle to jumpstart the Chrysler’s battery.
Once he got the car started, respondent drove it to Evergreen Avenue and parked momentarily in front of a fire hydrant. He was followed to the location by Mr. Sanchez, who lives on Evergreen Avenue. Mr. Sanchez apparently parked his car nearby and then got into respondent’s vehicle, on the passenger side, and the two men were sitting, talking when a police wagon rolled up alongside them. According to respondent, he was seated behind the driver’s wheel at the time, but his car engine was off and he had the car keys in his pocket.
Respondent recognized a Sergeant Moises in the police wagon, who, according to respondent, knows him from the neighborhood and has been engaged in a pattern of harassment against him and also against his friend Mr. Sanchez. The sergeant was in the wagon with another police officer, Officer Lewis, who respondent believed was a rookie officer. The sergeant exited the police wagon and tapped on respondent’s driver’s side window and indicated to respondentto roll down his window. Respondent claimed his car windows were heavily tinted and it was unlikely the officer could see inside at that point. Respondent complied with the sergeant’s direction and removed his car key from his pocket, put the key in the ignition and turned it only so far as to turn on the battery so that he could roll down his electronic window. He did not turn the key so far as to actually start the engine.
At that time, the sergeant recognized them and along with Officer Lewis, “pulled” respondent and Mr. Sanchez out of the car and handcuffed them. Respondent denied that either of them were smoking marijuana at the time, but allowed that Mr. Sanchez may have been smoking in his own vehicle on the way over to Evergreen Avenue because Mr. Sanchez did smell of marijuana. Respondent further allowed that there may have been a marijuana roach in the ashtray, although he never saw it. He claimed that if there was such a roach, Mr. Sanchez was the one who most likely put it there.
Respondent confirmed his arrest, the seizure of his vehicle and his subsequent voluntary urine test which proved positive for the presence of marijuana. He was arraigned and released on hisown recognizance. He stated that evidence of marijuana use remains in the body for several days and that his positive test was probably the result of his having smoked marijuana the day before. He denied that he was in any way impaired by the drug or was operating his vehicle under the influence of marijuana.
With respect to the first element that petitioner must prove in order to retain respondent’s vehicle, probable cause for respondent's arrest,that element was clearly established here. There was no dispute that respondent was seated behind the wheel of his car when the officers approached. Respondent admitted that there may have been a marijuana cigarette butt in open view in the ashtray, an area within the custody and control of respondent. Respondent tried to blame his friend for the presence of the ashtray, but the claim seems illogical. If Mr. Sanchez was smoking before he entered respondent's car, it would be unlikely that he would have a butt to dispose of once in the car. The only way it is likely that he would have such a butt to dispose of once inside the car,was is if he had been smoking marijuana inside the car. In any event, there is a presumption in the Penal Law that drugs found in open view in a car are knowingly possessed by all present. Penal Law §220.25(1).
Furthermore, respondent admitted that there may have been a strong odor of marijuana in the vehicle, although he blamed it on his friend. The actual source of the odorwas not determinative in the probable cause analysis. I further credited the officer's account that respondent's eyes were bloodshot, his speech stilted and slow, and that he volunteered to the officer that he had already smoked the "weed" and therefore that the officer should give him a break. That latter statement would be consistent with there only being a small butt end of a marijuana cigarette left in the ashtray. I did not believe that respondent, who characterized himself as having been a “heavy weed smoker,” did not smoke marijuana at all on the day that he was off work and hanging out with a friend. Whether or not he did, however, the officer's credible observations were sufficient to establish probable cause for respondent's arrest for unlawful possession of marijuana, both as a violation and in the fifth degree, in the latter instance meaning that he possessed a small amount of marijuana in a public place, which is a class B misdemeanor. See People v. Morgan, 10 A.D.3d 369, 781 N.Y.S.2d 652, 2004 LEXIS 10150 (2d Dep't 2004). With respect to the misdemeanor crime of unlawful possession of marijuana in a public place, the courts have held that marijuana may be considered to be in open view and in a public place where it is in plain view inside a vehicle that is parked on a public street. See People v. Guzman, 6 Misc.3d 553, 789 N.Y.S.2d 865, 2004 N.Y.Misc. LEXIS 2459 (N.Y.C. Crim. Ct. 2004); see also People v. Butler, 195 Misc.2d 228, 757 N.Y.S.2d 674 (Crim. Ct. NY 2003); People v. McNamara, 78 N.Y.2d 626, 578 N.Y.S.2d. 476 (1991).
With respect to the charge of the operation of a motor vehicle while under the influence of drugs, respondent argued that he was not operating the vehicle at the time he was approached, and that instead, it was parked with the engine off. He admitted, however, putting the key in the ignition and turning it to lower his window. In any event, I credit the sworn hearsay account of the officer that respondent was in the car with the motor running when the officer approached. I find the officer's claim more believable for two reasons: 1) this occurred on a winter’s night in mid-January and it was probable that respondent would keep the engine running to keep the heat on, while he sat in the car talking to his friend, Mr. Sanchez; and 2) he was presumably waiting for a parking space to open on that block and thus would likely keep his car running so he could immediately pull toward any open space that appeared without delay.
Operation of a motor vehicle for purposes of this statute is more broadly defined than the term “drive,” and includes a situation where a driver is sitting behind the wheel of a parked vehicle, the engine of which is running, and he recently drove the vehicle or had the present intention of placing the vehicle in operation. People v. Page, 266 A.D.2d 733, 698 N.Y.S.2d 774 (3d Dep’t 1999); People v. Dalton, 176 Misc.2d 211, 673 N.Y.S.2d 828 (2d Dep’t 1998); see also,People v. Solomon, OATH Index No. 1783/04, mem. dec. (Apr. 22, 2004). In this case, respondent admitted that he lived ten or so blocks away and had in fact just driven to Evergreen Avenue in order to park his car. He also acknowledged that while sitting in his car on Evergreen Avenue, he had the present intention to move it to a parking place when one appeared.
I was further persuaded that the officer had probable cause to believe that respondent was under the influence of marijuana at the time he was operating his vehicle, and that his ability to drive was impaired, despite respondent’sdenials, based on the physical symptoms the officer observed, respondent’s admission to having just smoked "weed," and his subsequent positive urinalysis.
For all of the above reasons, petitioner amply proved probable cause to arrest respondent for the crimes for which he was charged. The same evidence also satisfactorily established petitioner's likelihood to prevail in a subsequent civil forfeiture action on the basis that respondent used his vehicle as the instrumentality of a crime. Here, respondent unlawfully possessed marijuana in his vehicle in public view and also operated the vehicle under the influence of marijuana.
With respect to the last element that petitioner must prove in order to retain respondent’s vehicle, i.e., the necessity that the vehicle be retained pending final judgment in the civil forfeiture action, we have 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 made a clear showing of such heightened risk in this instance.
In this instance, respondent was arrested for operating a motor vehicle while under the influence of drugs. Moreover, he characterized himself as a “heavy” marijuana smoker, a fact that his criminal history seems to bear out. Respondent correctly pointed out that he has no history of drug or alcohol related “driving” offenses. However, he does have a history ofprior arrests and convictions within the past five years forunlawful marijuana possession. In September 2000, he was convicted upon his plea of unlawful possession of marijuana, a violation, and was fined $75. His criminal history printout next seems to reflect three separate arrests in the first half of 2001 for misdemeanor criminal possession of marijuana in the fifth degree, possessing it in a public place, but shows no convictions for those arrests. In March 2002, he pled guilty to a charge of criminal sale of marijuana in the 4th degree, a class A misdemeanor, and was sentenced to time served in jail. Most recently, in August 2005, he pled guilty again to the violation of unlawful possession of marijuana and received the maximum $100 fine (Pet. Ex. 8).
Respondent tried to minimize the significance of his admitted marijuana use and claimed, unpersuasively, that since this incident he no longer smokes at all. He also argued that like those who use alcohol, the fact that someone might use marijuana in his leisure time does not mean that they would necessarily drive while under the influence. Respondent, however, fails to recognize the fundamental difference between alcohol use which is legal, and marijuana use which is not. Respondent uses his car to commute to work daily, and he also admitted that he drivesit regularly to move it around for parking purposes. Given his history of marijuana related offenses and marijuana use dating back to at least 2000, as well as his admittedregularusageof the illegal substance leading up to this incident,petitioner has established that respondent is a continued risk tooperate a motor vehicle under the influenceof or while impaired by marijuana, and thus that return of his car presents a heightened risk to public safety.