Police Dep't v. McBrien OATH Index No. 1058/09, mem. dec. (Oct. 9, 2008) Vehicle was seized as the instrumentality of a crime in connection with respondent's arrest for driving under the influence of alcohol. Petitioner proved its entitlement to retain the vehicle. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of POLICE DEPARTMENT Petitioner - against - NOEL McBRIEN Respondent MEMORANDUM DECISION TYNIA D. RICHARD, 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 Noel McBrien, the titled and registered owner of the vehicle, was in possession at the time it was seized. 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 2001 Chrysler, property clerk voucher No. B191026V, which was seized by the Department on March 24, 2008, in connection with respondent s arrest for driving while under the influence of alcohol. Respondent s demand for a hearing was received by the Department on September 23, 2008, and trial was scheduled for October 6, 2008. Respondent did not appear at the hearing, although his counsel appeared on his behalf.
- 2 - 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: (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 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. Petitioner's case-in-chief was based on documentary hearsay evidence. On March 24, 2008, at approximately 10:00 p.m., respondent was arrested for driving while under the influence of alcohol after being involved in a motor vehicle accident (Pet. Exs. 1 & 2). The criminal court complaint states that respondent admitted to the arresting officer that he was driving the vehicle (Pet. Ex. 3). The arresting officer observed respondent to have bloodshot eyes, slurred speech and a strong odor of an alcoholic beverage emanating from his breath. Respondent refused to be administered a breathalyzer. There was one victim involved in the accident, although injuries are not reported in petitioner s documents. It is necessary to determine whether petitioner s documentary evidence, having been deemed admissible, is sufficient to establish petitioner s prima facie case. I found petitioner s documentary evidence sufficiently detailed and reliable to be prima facie proof. Respondent is charged with two counts of driving while under the influence of alcohol, a violation and a misdemeanor. 1 The evidence of a motor vehicle accident, respondent s operation of the vehicle, and the officer s observations of respondent s appearance following the accident, 1 Respondent is charged with violating subsections 1 and 3 of the Vehicle and Traffic Law, section 1192, which are, respectively, a violation and a misdemeanor. The subsections state as follows: 1. Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol. 3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
- 3 - which supply the common law indicia of intoxication, justify an arrest and prove that it is more likely than not that respondent was driving while intoxicated as defined by section 1192 of the Vehicle and Traffic Law. Respondent chose not to appear at the hearing to testify to refute the Department s evidence. The Department argued that an adverse inference should be drawn from respondent s refusal to attend and testify. We have drawn negative inferences against respondents who have elected not to testify in retention proceedings. See Police Dep t v. Shim, OATH Index No. 145/06, mem. dec., at 3 (Aug. 5, 2005); Police Dep t v. Chirico, OATH Index No. 2205/05, mem. dec. at 3 (June 28, 2005); Police Dep t v. Rice, OATH Index No. 1709/05, mem. dec. at 9-10 (Apr. 21, 2005). The tribunal has also noted that a respondent has control over the timing of the hearing and initiated it by filing his demand for a hearing. A respondent has the choice to either participate in the hearing or to remain silent at the risk that an adverse inference would be drawn and that his right to retain his vehicle pending a civil forfeiture action might be impaired. Police Dep't v. Hawkins, OATH Index No. 1305/07, mem. dec. at 4 (Feb. 14, 2007) (citing Baxter v. Palmigiano, 425 U.S. 308, 316-20, 96 S. Ct. 1551, 1557-59 (1976)); New York City Comm r of Social Services on behalf of Jason C. v. Elminia E., 134 A.D.2d 501, 502, 521 N.Y.S.2d 283, 285 (2d Dep t 1987). However, the inference to be drawn is limited to the strongest inference that opposing evidence in the record permits. Noce v. Kaufman, 2 N.Y.2d 347, 353, 161 N.Y.S.2d 1, 5 (1957); Commissioner of Social Services v. Philip De G., 59 N.Y.2d 137, 141, 463 N.Y.S.2d 761, 763 (1983). The adverse inference does not permit the trier of fact to fill in gaps in the petitioner s proof, or to speculate about what the respondent s testimony might have been. Laffin v. Ryan, 4 A.D.2d 21, 162 N.Y.S.2d 730 (3d Dep t 1957). Instead, [t]he adverse inference relates only to the question of contradicting or corroborating evidence which is already in the case. It cannot be used as a basis for finding upon a point on which there is no evidence at all. Dep t of Sanitation v. Richins, OATH Index No. 167/01, at 13 (Oct. 15, 2001). The effect of drawing an adverse inference against respondent would be to lend greater weight to the evidence produced by petitioner. See, e.g., Shim, OATH 145/06, at 3 (using the adverse inference against respondent to credit the observations of the arresting officer that respondent was intoxicated); Chirico, OATH 2205/05, at 3 (adverse inference lends greater
- 4 - weight to the complaint report). I find that such an adverse inference is warranted here, although not necessary to establish petitioner s prima facie case. In spite of respondent s failure to appear, his counsel offered arguments challenging the admissibility, credibility, and weight of the Department s evidence, and sought to compel the testimony of the arresting officer. Counsel presented, without a witness to establish an appropriate foundation, a form produced to him in discovery in respondent s criminal case that was apparently completed by the arresting officer (Resp. Ex. A). The Intoxicated Driver Examination form corroborates the indicia of intoxication observed by the arresting officer as indicated in petitioner s documents, with some elaboration. The form indicates that respondent was flushed, disarranged, stuporous, and had slurred speech, bloodshot eyes, and swayed. It also states that Deft was involved in motor veh accident. Deft state he was driving [in] the veh. Counsel pointed out correctly that the latter sentence was originally written Deft state he was in the veh ; sometime later, it appears, the word in was struck (though still visible), and the word driving was inserted above it. Counsel argued that an inference should be made that the arresting officer changed a true statement (that respondent was in the vehicle) and inserted an untrue statement (that respondent was driving the vehicle). Counsel also pointed out correctly that the answer to the question did civilian witness see defendant operate vehicle? was blotted out (no answer was visible). Counsel argued that I should make an inference that the answer was no because someone had blotted it out and it contradicts other evidence produced in the case. He also offered these arguments as a basis for requiring the officer s live testimony at the hearing as well as a basis for denying the admissibility of and/or discrediting any statement in petitioner s documents that respondent drove the vehicle. First, counsel presented no basis for assailing the admissibility of petitioner s documents. It is well settled that hearsay is admissible in this tribunal. Police Dep t v. Pedalino, OATH Index No. 2693/08, mem. dec. at 4 (July 2, 2008). The Krimstock decision itself anticipates the use of hearsay in these abbreviated, expedited administrative proceedings which were created as an initial testing of the Department s case, rather than an exhaustive evidentiary battle[] that might threaten to duplicate the eventual forfeiture hearing. Police Dep t v. McBrien, OATH Index No. 1058/09, mem. dec. at 2 (Oct. 2, 2008) (citing Krimstock, 306 F.3d at 69-70). The arrest and complaint reports and the criminal court complaint were admissible as hearsay
- 5 - evidence, and I found them sufficiently probative and reliable to accord them weight. I found no merit to this argument. Second, I found insufficient counsel s asserted need to subpoena the arresting officer to testify at the hearing and denied his renewed application to compel her testimony. By this request, respondent appeared to seek to expand the breadth of this Krimstock hearing. Counsel argued that the Intoxicated Driver Examination form created a need to call the arresting officer to testify about what he claimed were discrepancies in the document. Again, this hearing is not intended to be an exhaustive evidentiary battle[] that might threaten to duplicate the eventual forfeiture hearing. Krimstock, 306 F.3d at 69-70. Prior to trial, respondent made application for a subpoena to serve on the arresting officer, which was denied in a memorandum decision issued by ALJ Kara Miller, who was originally scheduled to preside at the hearing. The decision invited counsel to renew his application to compel the officer s testimony, at the hearing, should circumstances so necessitate. McBrien, OATH 1058/09, at 2. I found no compelling need for the officer s testimony. For that and the reasons set forth in the prior decision, which I will not repeat here, I denied the further application. 2 2 Respondent s other bases for seeking to compel the arresting officer to testify include the fact that the criminal court complaint was unsigned (Pet. Ex. 3), that an alleged erroneous case number was listed on the criminal history report (Pet. Ex. 4), and that alleged discrepancies were contained on the Intoxicated Driver Examination form (Resp. Ex. A). I will address these arguments serially. First, this tribunal has held that while it is not the best practice for the Department to submit the unsigned criminal court complaint, the failure to obtain the signature page does not warrant preclusion of the document for purposes of these preliminary retention hearings. See Police Dep t v. Pramanik, OATH Index No. 1751/07, mem. dec. at 4 (Apr. 10, 2007) ( an unsworn criminal court complaint is routinely taken into account in Krimstock hearings. ). Next, counsel argued that the testimony of the arresting officer was required to establish that charges were pending because, according to his information, the case number listed in respondent s criminal history report (Pet. Ex. 4) was erroneous; therefore the basis for continued retention of the vehicle could not be established by the documents. This argument lacked merit. Counsel offered no evidence of his assertion, besides his own online observation. See Police Dep't v. Hawkins, OATH Index No. 1305/07, mem. dec. at 3 (Feb. 14, 2007) (respondent s unsworn statements, made during the course of self-representation, constituted argument and could not be considered as evidence). Needless to say that counsel is incompetent to offer evidence in a case in which his is also counsel. Even if admissible and true, counsel failed to establish that he was offering more than speculation about an administrative glitch in the district attorneys computer system. He did not dispute that his client was arrested under the charges alleged at the date and time indicated in petitioner s evidence. To undermine petitioner s prima facie case, respondent must offer more than speculation. Here, counsel offered only a technical argument unsupported by evidence that was ultimately unpersuasive. Finally, the alleged discrepancies written on the Intoxicated Driver Examination form (Resp. Ex. A) do not compel the arresting officer s testimony, as is more fully discussed infra.
- 6 - Third, I considered whether to make negative inferences about erasures in the Intoxicated Driver Examination form (Resp. Ex. A). 3 I allowed a negative inference with respect to the answer to the question did civilian witness see defendant operate vehicle? Since the answer is blotted out in the document, and that question is answered in the affirmative in the criminal court complaint, it is appropriate to infer that the question was answered in the negative on the form, and then blotted out. This does not undermine petitioner s proof of the prima facie case, however, since there is no dispute that respondent admitted driving the vehicle, which is sufficient to establish that he operated the vehicle. Nevertheless, I declined to infer that the arresting officer struck the word in and inserted driving in an attempt to provide false information. The assertion that respondent was in the vehicle does not contradict that he was driving it; the change to driving adds detail to the form but is not a contradiction. Thus, an inference would not be appropriate here. Richins, OATH 167/01, at 13 ( The adverse inference relates only to the question of contradicting or corroborating evidence which is already in the case. ). Thus, petitioner s evidence is sufficient to establish the first and second prongs, probable cause to arrest respondent and likelihood of success in proving at the civil forfeiture proceeding that the vehicle was the instrumentality of a crime. The only remaining issue is whether the continued retention is necessary to protect against a heightened risk to public safety. 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). It is clear that an ordinary DWI incident without more is insufficient to demonstrate a necessity to retain the seized vehicle. McFarland, OATH 1124/04, at 3; compare Police Dep't v. Satyanand, OATH No. 570/05, at 3 (Nov. 23, 2004) (two drunk driving arrests within a short period of time may constitute sufficient evidence of a heightened risk to the public). Such heightened risk has been demonstrated in a variety of ways: by the history of the driver of the seized vehicle (see Police Dep t v. Benkovich, OATH Index No. 1296/04, mem. dec. (Mar. 9, 2004) (arrest was respondent s second DWI)), by a significant blood alcohol content (Police Dep t v. Melendez, OATH Index No. 1520/06, mem. dec. (Apr. 5, 2006) (blood alcohol content of.182%, more than twice the legal limit of.08)), or by proof of an accident 3 Counsel produced no witness to vouch for the document, which was received in evidence only by invoking an overinclusiveness permitted by OATH s rules of practice.
- 7 - while driving drunk (Police Dep t v. O Berry, OATH Index No. 1474/04, mem. dec. (Mar. 15, 2004) (heightened risk demonstrated by the severity of the accident that led to respondent s DWI arrest)). The Department argues that respondent presents a heightened risk because of his involvement in a motor vehicle accident. The arrest report, complaint report, and criminal court complaint fail to describe the nature of the motor vehicle accident, or to detail vehicle damage or injuries (Pet. Exs. 1-3). We know, however, that there was an accident victim who is named in the complaint report (Pet. Ex. 2). The Property Clerk s Invoice notes that Veh Has Passenger Side Damage From Motor Veh Accident and indicates that both airbags deployed in the vehicle, the front and rear ends were dented, lights were broken, the windshield was cracked and the dashboard broke (Pet. Ex. 7). It is likely that the victim was the passenger in the vehicle since both airbags deployed. Petitioner contends that this evidence proves there was a serious accident which establishes the heightened risk of returning the vehicle to respondent. Respondent disputes this, arguing that there is no accident or injury report, victim statement about the accident, or evidence of injury, and avers that the airbag deployment sheds no light on the accident s causation. See Police Dep t v. Dambrosio, OATH Index No. 422/09, mem. dec. at 3 (Aug. 6, 2008) (extensive front end damage and airbag deployment did not prove cause of collision with car being driven by another driver). I disagree that the airbag deployment is of no significance. Here, there is evidence of an accident and an admission from respondent that he was driving (Pet. Exs. 3 & 7). I am persuaded that the condition of the vehicle indicated there was a serious accident and I note, in particular, the fact that both airbags were deployed in the accident. Whereas car dents and scratches may provide equivocal information about the seriousness of an accident, and may have originated at some other time, the airbag deployment indicates that an accident had just occurred, an accident that generated sufficient force to trigger the airbags. This was no fender bender, as was found in McFarland. See Police Dep't v. Dalley, OATH Index No. 651/06, mem. dec. at 3 (Oct. 21, 2005) (proof that driver was involved in a minor fender bender with a parked car failed to establish third prong). I find that, unlike in McFarland or Dalley, the airbag deployment, in conjunction with the vehicle damage observed (the front and rear end dents, broken lights, cracked windshield and broke[n] dashboard) reflects a serious accident that created a significant amount of damage in excess of what can be considered
- 8 - routine. See McFarland, OATH 1124/04, at 4 (routine damage noted by property clerk, front bumper dented, rear bumper scratched... cracked windshield, was not proof of an elevated risk to the public). This evidence is sufficient to establish that return of the vehicle to respondent would create a heightened risk to the public. The Department also asserts that respondent presents a heightened risk to the public safety because this is his second drunk driving conviction, a contention that the evidence did not establish. The Department pointed to an entry on respondent s criminal history report that indicates that respondent was arraigned under subsection 3 of section 1192 of the VTL, DWI: Previous Conviction of Designated Offense Within 10 Years, a class E felony (Pet. Ex. 4). The criminal history report fails, however, to report any prior convictions. The Department suggests that an out-of-state conviction may be missing, as it would not be captured in the NYS repository system. This argument is conjecture and is belied by the fact that the criminal court complaint itself failed to charge respondent with a felony. I decline the Department s invitation to infer from the original arraignment charge that respondent was convicted of another DWI, in the absence of any direct evidence. See Police Dep't v. Ogando, OATH Index No. 1747/07, mem. dec. at 6-7 (May 16, 2007). While it has long been held that hearsay evidence, like the criminal history report, is admissible and reasonable inferences may be drawn therefrom, it would be quite another matter to infer the opposite of what the hearsay evidence tells me that there is no prior conviction. I find no prudent reason for doing so and I decline. Nevertheless, I conclude that the accident evidence sufficiently establishes the necessity to retain the vehicle pending the outcome of the civil forfeiture action. ORDER The Department has satisfied its burden of proof under the Krimstock Order and is entitled to retain the vehicle pending the forfeiture action. Tynia D. Richard Administrative Law Judge October 9, 2008
- 9 - APPEARANCES: BRIAN M. DERR, ESQ. Attorney for Petitioner LAW OFFICES OF MICHAEL G. DOWD Attorney for Respondent BY: NIALL MAC GIOLLABHUI, ESQ.