Police Dep t v. Jaber OATH Index No. 2415/09, mem. dec. (Mar. 10, 2009)

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1 Police Dep t v. Jaber OATH Index No. 2415/09, mem. dec. (Mar. 10, 2009) Vehicle was seized as the instrumentality of a crime in connection with driver's arrest for selling counterfeit merchandise. Petitioner failed to establish that retention of vehicle is necessary to protect public safety. Vehicle ordered released. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of POLICE DEPARTMENT Petitioner -against- SHARIF JABER Respondent MEMORANDUM DECISION JOHN B. SPOONER, 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 of the Administrative Code. Respondent Shafir Jaber is the vehicle s registered owner and the driver at the time of the seizure. This proceeding is mandated by Krimstock v. Kelly, 99 Civ (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 (2003). On February 15, 2009, petitioner seized a 2000 Chevrolet van, property clerk voucher B159314, following respondent s arrest for trademark counterfeiting in the second degree, in violation of section of the Penal Law. Petitioner received a demand for a hearing on February 19, 2009, and scheduled a hearing at this tribunal for March 5, At the hearing, respondent appeared with counsel. Petitioner offered documentary evidence and called respondent as a witness. For the reasons below, I conclude that the vehicle should be released.

2 - 2 - ANALYSIS To prevail in establishing its right to retain this seized vehicle, petitioner must show that (i) there was probable cause for the arrest that resulted in the seizure of the vehicle; (ii) it is likely that the Department will prevail in a civil action for forfeiture of the vehicle; and (iii) it is necessary to retain the vehicle to ensure its availability for a forfeiture judgment or to protect the public. Krimstock Order at 3; Canavan, 1 N.Y.3d at 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 at 69-70; see Canavan, 1 N.Y.3d at 144 n.3. The evidence of probable cause consisted of an arrest report (Pet. Ex. 5) from Police Officer Vito Familette, which states that, at around 10:00 a.m. on February 15, 2009, he observed respondent driving a van with a defective rear right tail light and pulled him over. The officer saw that the rear view of the van was obstructed by a carpet. The officer wrote that after the stop respondent did open rear door of van, permitting the officer to see counterfeit merchandise in plain view. In the criminal court complaint (Pet. Ex. 8), the officer states that the rear was obscured by a blanket hung behind the driver s seat. He states that respondent opened the rear door of the van revealing numerous counterfeit items displayed inside the back of the van, including jackets hung on racks, handbags hung on racks and footwear. The officer itemizes the merchandise recovered, including 15 counterfeit North Face jackets, 35 counterfeit Nike sneakers, 7 counterfeit Coach handbags, and $3,000 in cash. The officer further stated that respondent told him he had come to New York to pick up merchandise. Finally, the officer indicated that Rich Conte of the Police Department confirmed that, based upon his training and experience, the merchandise exhibited various signs of being counterfeit, including inferior materials used and the lack of security details in the labels, tags, and packaging. The probable cause for the arrest for the crime of trademark counterfeiting was established by the large quantity of counterfeit merchandise discovered in the back of the van. The arresting officer s unrebutted statement that respondent opened the door of the van, permitting the officer to see inside, supported a finding that the door was opened voluntarily,

3 - 3 - placing the contents of the van in plain view. See New York v. Gonzalez, 39 N.Y.2d 122, (1976); New York v. Ponder, 43 A.D.3d 1398 (4th Dep t 2007). As to the second prong, the criminal complaint indicated that the merchandise seized was counterfeit and that the back of the van contained racks for the jackets and handbags. Respondent also allegedly admitted that he had come to New York to pick up this merchandise. At the hearing, respondent testified that he sold the articles in his van door to door and at flea markets in New Jersey. When asked detailed questions about the contents of the van or his actions on the date of his arrest, he declined to answer on the advice of counsel. He did admit ownership of a BMW, a Cadillac, and a Lexus, although he stated that his two sons had possession of the BMW and the Lexus. As shown by his rap sheet (Pet. Ex. 7), he has no prior criminal record. The criminal complaint charged respondent with trademark counterfeiting in the third degree. This crime requires proof that respondent was selling or distributing counterfeit goods with the intent to deceive or defraud some other person or with the intent to evade a lawful restriction on the sale. Penal Law (Lexis 2009). The evidence here would likely be adequate to establish, at the forfeiture trial, that respondent committed the offense charged. The third prong of the Krimstock Order requires the Department to demonstrate that it is necessary to retain the car either to protect the public safety or to ensure the vehicle s availability for a judgment of forfeiture. Consideration of the third prong here involves determining whether releasing the car to respondent presents a heightened risk to public safety. Property Clerk v. Brown, 870 N.Y.S.2d 343 (1st Dep t 2009). 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) We have repeatedly held that releasing vehicles that were used in selling counterfeit goods generally does not pose a risk to public safety or health. Police Dep t v. Weng, OATH Index No. 1472/08, mem. dec. (Feb. 6, 2008) (vehicle seized in connection with respondent s arrest for selling counterfeit handbags released because petitioner failed to establish that retention of respondent s vehicle was necessary to protect public safety); Police Dep t v. Xia, OATH Index No. 128/08, mem. dec. (July 18, 2007). Instead, we have retained vehicles used to sell counterfeit goods only when the Department established that the owner had a history of

4 - 4 - using the vehicle to sell counterfeit goods. See Police Dep t v. Yun Huang, OATH Index No. 2519/08, mem. dec. (June 5, 2008) (finding a substantial risk that criminal activity would resume because driver had an extensive history of similar unlawful conduct with the same vehicle); Police Dep t v. Zhang, OATH Index No. 1791/08, mem. dec. at 4 (Mar. 26, 2008); Ahevonderae, OATH 1521/07 at 5 (heightened risk shown by repeated use of vehicle to transport illegal cigarettes and driver s history of indifference to the law ). The facts of the instant case are similar to the background facts in these past decisions, supporting a finding that no public safety risk exists here. Petitioner offered evidence that respondent had received nine parking tickets with the seized vehicle and four tickets with other vehicles that he owned. Nearly all of the tickets were in the vicinity of West 27 th Street and Fifth Avenue. Ten of the tickets, totaling some $1900, were in judgment as of the time of the hearing. The remainder of the tickets totaled $375 and were received within the last 40 days. Petitioner s attorney contended that these parking tickets supported an inference that respondent was regularly selling counterfeit goods in Manhattan and was therefore placing the public at risk. However, the parking tickets established little more than that respondent and perhaps other family members regularly drove to a certain portion of Manhattan. The tickets do not support an inference that, on any of these occasions, respondent sold counterfeit goods or committed any other offenses. Finally, petitioner s counsel argues that retention is essential in order to ensure that the vehicle remains in New York and not in New Jersey where respondent resides. However, this tribunal has consistently rejected such arguments because the Department has chosen not to establish a procedure for posting of a cash bond alternative for return of the vehicles. See, e.g., Police Dep t v. Junior, OATH Index No. 1134/06, mem. dec. at 4-5 (Feb. 8, 2006) (citing Krimstock, 306 F.3d at 70). In sum, I find that petitioner s proof is insufficient to support retention of the vehicle and that it should be returned to respondent forthwith.

5 - 5 - ORDER The Department has failed to establish its right to retain respondent s vehicle and must release it. March 10, 2009 APPEARANCES: ALIZA FELIX, ESQ. Attorney for Petitioner AGNIESZA WAS, ESQ. Attorney for Respondent John B. Spooner Administrative Law Judge