Police Dep t v. Nightstar OATH Index No. 3190/09, mem. dec. (June 19, 2009)

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1 Police Dep t v. Nightstar OATH Index No. 3190/09, mem. dec. (June 19, 2009) In vehicle forfeiture proceeding, ALJ found that petitioner proved that owner was not innocent and that the other Krimstock elements were satisfied. Vehicle ordered retained. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of POLICE DEPARTMENT Petitioner - against - JADE NIGHTSTAR Respondent MEMORANDUM DECISION JOHN B. SPOONER, Administrative Law Judge The petitioner, the Police Department, brings this proceeding to determine its right to retain a vehicle seized as the alleged instrumentality of a crime pursuant to section of the Administrative Code. The respondent, Jade Nightstar, asserts that she is an innocent owner of the seized vehicle. This proceeding is mandated by Krimstock v. Kelly, 99 Civ , third amended order and judgment (S.D.N.Y. Sept. 27, 2007). 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 (2003). The vehicle in issue, a 1997 Mercedes Benz, NYPD voucher number B129463, was seized by the Department on March 1, 2009, in connection with the arrest of Shatieck Daniels for criminal possession of a controlled substance in the third degree and unlicensed operation of a motor vehicle in the second degree. On May 14, 2009, respondent Jade Nightstar submitted a demand for a hearing to the Department. A hearing was initially scheduled on May 26 and adjourned at respondent s request until June 16, At the June 16 hearing, respondent asserted the claim of being an innocent owner. As set forth below, I conclude that the vehicle should be retained because petitioner established that respondent is not an innocent owner.

2 - 2 - ANALYSIS In the instant case, the Department sought to retain the seized vehicle, contending that all of the elements of retention were established and that respondent was not an innocent owner. For her part, respondent s attorney claimed she was an innocent owner, entitled to recover the vehicle. As a preliminary matter, I note that respondent s attorney challenged the sufficiency of notice by stating, in his opening statement, that no prompt notice was provided. No further evidence or argument on the notice issue was provided by either party. Under the Krimstock Order, notice should have been sent to respondent as the titled owner within five days: Notice of the right to a forfeiture hearing will be provided at the time of seizure by attaching to the [property clerk s] voucher already provided to a person from whom a vehicle is seized a notice.... A copy of such notice will also be sent by mail to the registered and/or title owner of the vehicle within five business days after the seizure. Krimstock Order, para. 4. We have held on more than one occasion that the Krimstock notice requirements are to be strictly construed against petitioner, and we have dismissed cases where these requirements were not complied with. See, e.g., Police Dep t v. Caban, OATH Index No. 107/07, mem. dec. at 5 (July 14, 2006); Police Dep t v. Murray, OATH Index No. 1631/06, mem. dec. at 4-5 (Apr. 25, 2006). In the instant case, however, no evidence was provided by either party as to the service of the notice. While respondent s attorney stated in his opening that respondent was not provided with prompt notice of her right to a retention hearing, respondent herself never mentioned if or when she received notice of her right to a retention hearing, although she contended emphatically that she was not aware that Mr. Daniels was driving the car on the night of his arrest. At the same time, petitioner offered no proof as to whether the notice of a right to a retention hearing was served in person on Mr. Daniels at his arrest or by mail on respondent within five days of the arrest. I find that the vague statement of respondent s attorney that respondent was not provided with prompt notice of her right to a retention hearing was insufficient, standing alone, to establish that the notice requirements of the Krimstock order were violated. As to this issue, the question of whether respondent received the required written notice was information known only

3 - 3 - to her and not to the Department. The fact that she testified about her knowledge of Mr. Daniels s arrest yet never once mentioned how or when she found out about her right to a retention hearing strongly suggests to me that she had no truthful basis to complain that the fiveday notice requirement under Krimstock was not met. Nor did her attorney argue that the notice provided was legally insufficient, stating only that the notice was not prompt. On this record, I find no reliable factual basis to conclude that respondent was not provided with the required notice. See Krimstock v. Kelly, 506 F.Supp.2d 249, (S.D.N.Y. 2007) (court rejects plaintiffs proposal to shift burden to show service to the department, finding instead, as in civil practice generally, lack of service is an affirmative defense upon which the movant bears the burden). As to the merits of the retention issue, the Department 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 the Department will prevail in a civil action for forfeiture of the vehicle; and (iii) that it is necessary that the vehicle remain impounded to protect the public safety. Krimstock Order, at 3; Canavan, 1 N.Y.3d at 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 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. The probable cause regarding the seizure of the vehicle was established by petitioner s documentary proof. According to the arrest report (Pet. Ex. 5) and the criminal complaint (Pet. Ex. 6), Mr. Daniels was stopped driving the Mercedes at 4:26 p.m. on March 1, 2009, at 255 Corson Avenue on Staten Island after making an illegal U turn to avoid a mandatory check point. One of the officers observed a large plastic bag holding several zip lock bags, each containing a white rock-like substance resembling crack cocaine. A check of respondent driver s license indicated that his license had been suspended 23 times. The officers arrested Mr. Daniels for criminal possession of controlled substance with intent to sell in the third and fifth degrees, for criminal possession of a narcotic drug in the fourth degree, and for aggravated unlicensed operation of a motor vehicle in the second degree. In addition, they seized the Mercedes.

4 - 4 - Mr. Daniels s illegal turn at a check point provided reasonable suspicion to stop his vehicle. His lack of a driver s license and long history of license suspensions, along with the discovery of the bags of white rocks resembling crack cocaine, provided probable cause for the arrest. The argument of respondent s counsel notwithstanding, the facts here contained ample proof that Mr. Daniels was using the vehicle to commit two crimes: to transport illegal drugs and to drive a motor vehicle without a license. Based upon this evidence, it is highly likely that the Department would prevail at a forfeiture trial in proving that the vehicle was the instrumentality of a crime. I also find that the facts as presented by respondent do not support her contention that she is an innocent owner. According to respondent, she is employed as a registered nurse at Maimonides Medical Center. She has been Mr. Daniel s girlfriend since soon after meeting him in Mr. Daniels was in prison from 2003 to 2008 for grand larceny. When Mr. Daniels emerged from prison in July 2008, he came to live with respondent on Staten Island. Respondent was aware that Mr. Daniels had a criminal record even before his 2003 conviction for grand larceny. In fact, Mr. Daniels has been convicted of a total of five crimes, including four felonies, one violent felony, a firearms offense, and a misdemeanor (Pet. Ex. 9). According to the records of the Department of Motor Vehicles (Pet. Ex. 11), Mr. Daniels s driver s license has been suspended 23 times. In May 2009, respondent gave birth to Mr. Daniels s baby. Respondent testified that she owns two vehicles, a 1997 Acura and the 1997 Mercedes seized here, which was purchased in November She stated that she drives the Acura for work and drives the Mercedes for leisure. Her mother also drove the Acura when her own car would not run. Although, prior to his arrest in March, Mr. Daniels worked as a custodian at a court building which required a 20-minute bus ride, respondent insisted that she has never let Mr. Daniels drive her cars and that he has never asked to do so. She admitted that she was aware that Mr. Daniels s driver s license was suspended, although she assumed he took care of it. Respondent s testimony that Mr. Daniels never drove either of the vehicles she owned was not credible. Given her compelling motive to obtain the return of the seized car, the weight to be given her uncorroborated testimony was limited. Her reason as to why she owned two vehicles that she needed one for work and one for leisure was highly implausible. It seemed far more likely that she drove one of the cars and Mr. Daniels drove the other and, in

5 - 5 - light of his significant criminal history and poor driving record, they kept both of the cars in her name only. It is true that respondent produced records showing that the loan for the Mercedes was in her name and that she made loan payments and paid for the insurance from a bank account in her name (Resp. Exs. A and B). Nonetheless, I find that these records are equally consistent with a conscious effort to avoid having Mr. Daniels s name associated with the vehicles, as with the notion that respondent was the sole driver of two cars. The third prong of the Krimstock Order requires the Department to demonstrate that it is necessary to retain the car because releasing it to respondent presents a heightened risk to public safety. The necessity to retain the vehicle arises out of a need to protect the public from further criminal misuse of the vehicle pending the outcome of the civil forfeiture action. See Canavan, 1 N.Y.3d at 144; Police Dep't v. McFarland, OATH Index No. 1124/04, mem. dec. at 2 (Feb. 24, 2004). Under this third prong, the Department 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). In some cases, the type of crime has been sufficient to satisfy this prong. See, e.g., Police Dep t v. Rice, OATH Index No. 1709/05, mem. dec. (Apr. 21, 2005) (risk established by driver s possession of a loaded firearm and illegal narcotics in vehicle). Here, Mr. Daniels is charged with possession of crack cocaine and driving without a license. His criminal record includes convictions for grand larceny, armed robbery, illegal weapons possession, and possession of illegal drugs (Pet. Ex. 3). Having been in a relationship with Mr. Daniels for eight years, it is reasonable to assume that respondent was aware of his lengthy criminal record, as she herself admitted, and further that she bought a second car in 2008 primarily for his use. It seems likely that, if the Mercedes were to be returned to respondent, Mr. Daniels would continue to have access to it. I therefore find that returning the vehicle poses a heightened risk to the public. ORDER In sum, I find that, in light of petitioner s proof that respondent is not an innocent owner and that it has satisfied the other elements of proof for retention, the Department may hold

6 - 6 - vehicle voucher number B129463, VIN number WDBJF72FAVAO88709, pending the outcome of a civil forfeiture action. John B. Spooner Administrative Law Judge June 19, 2009 APPEARANCES: RALPH LEONART, ESQ. Attorney for Petitioner DUANE C. FELTON, ESQ. Attorney for Respondent

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