Police Dep t v. Weaver OATH Index No. 2419/09, mem. dec. (Mar. 10, 2009) Department is entitled to retain vehicle as the instrumentality of a crime pending a civil forfeiture action. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of POLICE DEPARTMENT Petitioner -against- JOSEPH WEAVER Respondent MEMORANDUM DECISION ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge Petitioner, the Police Department, brought this proceeding to determine its right to retain a vehicle, a 1999 Ford (Voucher No. B193634), seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. Respondent, Joseph Weaver was driving the vehicle when 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) ( 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). The vehicle was seized in connection with respondent s arrest on February 12, 2009, for operation of a motor vehicle while impaired by drugs, possession of marijuana, and possession of a forged instrument (Pet. Exs. 4, 5, 6). Following receipt of respondent s demand on February 20, 2009, a hearing was scheduled for March 5, 2009 (Pet. Exs. 1, 2). Respondent appeared with counsel and contested the petition. For the reasons below, I conclude that petitioner is entitled to retain the vehicle pending the outcome of the forfeiture action.
- 2 - ANALYSIS Petitioner seeks to retain the seized vehicle as the instrumentality of a crime pending the outcome of its civil forfeiture action. To prevail petitioner must prove 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 its civil forfeiture action regarding 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 of forfeiture. Krimstock Order at 3; Canavan, 1 N.Y.3d at 144-45. The due process rights at issue here require 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; see Canavan, 1 N.Y.3d at 144-45 n.3 (hearing is intended to test the validity, or at least the probable validity, of the underlying claim ) (citation omitted). Petitioner s case consisted entirely of documentary evidence, which, although hearsay in nature, was properly admissible under paragraph 3 of the Krimstock Order and section 1-46 of this tribunal s rules of practice, and which I find to be reliable and credible. According to the arrest report and complaint, Officer Lopez was driving his squad car on February 12, 2009, at approximately 7:44 p.m. on Columbus Avenue and 72 nd Street, when he observed: DEFENDANT DRIVING A 1999 FORD EXPLORER 4DR BLUE W/ NY#CUW-1995, COMMIT A TRAFFIC INFRACTION. RAN PLATE, CAME BACK TO A 1998 PLYMO 4DR PURPLE. STRONG ODOR OF MARIJUANA EMANATING FROM PERSON AND VEHICLE. DEFT. HAD BLOOD SHOT WATERY EYES. DEFT. WAS IN POSSESSION OF A FORGED TEM. REGISTRATION STICKER ALONG WITH A PLASTIC BAG CONTAINING MARIJUANA. DEFT. REFUSED TEST AT IDTU SITE. (Pet. Exs. 4, 5). Respondent was arrested and charged with operation of a motor vehicle while impaired by drugs, Vehicle and Traffic Law 1192.(4), possession of marijuana, Penal Law 221.05, and possession of a forged instrument, Penal Law 170.20 (Pet. Exs. 4, 5, 6). Respondent was arraigned on February 13, 2009, on the same charges. In the criminal court complaint, Officer Chavez, the deponent, stated that he observed respondent, the defendant, operating the vehicle and that:
- 3 - defendant was impaired by drugs in that deponent smelled a strong odor of marijuana emanating from defendant s body, defendant stated to deponent in sum and substance: I smoked a joint earlier, and deponent observed that defendant had watery and bloodshot eyes. Deponent further states that deponent recovered a small clear plastic bag of marijuana from defendant s front shirt pocket. Deponent further states that the above-described substance is in fact what it is alleged to be based upon information and belief, the source of which is as follows: deponent s professional training as a police officer in the identification of drugs, deponent s prior experience as a police officer in drug arrests, observation of the packaging which is characteristic of this type of drug and a field test of the substance which confirmed that the substance is in fact what it is alleged to be. Deponent further states that deponent observed: (i) the defendant seated in the driver s seat of the above-mentioned vehicle at the above-mentioned location which had a temporary certificate of registration sticker openly displayed in the automobile s window; (ii) that said sticker is forged. The basis for deponent s knowledge that said sticker was in fact forged is as follows: (i) said sticker was made of poor quality paper, while an authentic temporary certificate of registration sticker is made of high-quality paper; (ii) the seal on said sticker is smeared, while the seal on an authentic temporary certificate of registration sticker does not smear, and (iii) the print on said sticker is blurry, while the print on an authentic temporary certificate of registration sticker is not blurry (vi) and deponent s training and experience as a police officer. (Pet. Ex. 9). Petitioner provided proof that the seized vehicle is currently registered to someone with the last name of Diaz. Also, the license plates on the seized vehicle are currently registered to a 1998 Plymouth owned by respondent (Pet. Ex. 8). Respondent invoked his Fifth Amendment right against self-incrimination and declined to testify regarding the circumstances of his arrest. Instead, respondent testified that he purchased the vehicle from JJ&M Auto Corp., on February 2, 2009, and provided a bill of sale (Resp. Ex. B). He paid $2,400 in cash for the Ford and still owes $850. Respondent stated that he is able to pay the balance. Respondent also provided a copy of the title for the vehicle showing that Diaz is the owner (Resp. Ex. C). Respondent also testified that he is 40 years old, that he was born in Connecticut, and that he currently lives in the Bronx with his wife and 15-year old son. Respondent is an operations manager for an interior design firm where he has worked for 14 years. Respondent provided a letter from his employer (Resp. Ex. A). Respondent also testified that he works as a part-time superintendent in Queens. Respondent stated that he has been licensed to drive for 20 years. He
- 4 - asserted that he has had two prior accidents but that they were both the fault of the other drivers. He also had one moving violation for speeding. The NYSID Repository Inquiry indicates that respondent has no prior criminal convictions (Pet. Ex. 6). Prior to going on the record, respondent s counsel advised that her client would be invoking his Fifth Amendment right against self-incrimination. I advised that while that was permissible, this tribunal generally draws a negative inference from a respondent s decision to assert a Fifth Amendment privilege when asked questions about the circumstances of the relevant arrest. See Police Dep t v. Mendoza, OATH Index No. 1829/08, mem. dec. at 3 (Mar. 12, 2008); Police Dep t v. Shim, OATH Index No. 145/06, mem. dec. at 3 (Aug. 5, 2005). A pending criminal case is not a constitutional bar to the conduct of a civil or administrative proceeding based on the same underlying facts. Police Dep t v. Lord, OATH Index No. 942/08, mem. dec. at 5 (Dec. 6, 2007); Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) ( the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them ). Hence, in this proceeding, where respondent initiated the hearing and had control over its timing, yet sought to remain silent regarding the events surrounding his arrest, I am left to draw a negative inference from such silence, and accept the evidence presented in the light most favorable to petitioner. Lord, OATH 942/08 at 5; Police Dep t v. Chan, OATH Index No. 197/08, mem. dec. (Aug. 14, 2007). With respect to the first element of the Krimstock Order, I find the documentary evidence submitted by petitioner sufficient to establish probable cause for respondent s arrest. The probable cause inquiry includes an examination of both reasonable suspicion for the initial stop and probable cause for the arrest. Police Dep t v. Burnett, OATH Index No. 1363/04, mem. dec. (Mar. 11, 2004), aff d, Property Clerk v. Burnett, NYLJ, May 19, 2005 (N.Y. Sup. Ct. July 19, 2004), aff d, 22 A.D.3d 201 (1st Dep t 2005); Police Dep t v. Haskell, OATH Index No. 484/08, mem. dec. (Oct. 4, 2007) (as part of the Department s burden of proving probable cause for the arrest, it is required to establish how the arresting officers lawfully came to learn of the vehicle s illegal contents ). Officer Lopez s uncontroverted statements that he observed respondent commit a traffic infraction and that when Officer Lopez ran the plates on the vehicle they came back as belonging to another vehicle provided reasonable suspicion for the initial stop. Pa. v. Mimms, 434 U.S. 106 (1977) (operating vehicle with expired license plate justified stop); Police Dep t v. Rice, OATH
- 5 - Index No. 1709/05, mem. dec. (Apr. 21, 2005) (officer s observation that driver ran red light provides reasonable suspicion for car stop). Respondent s reliance on Police Dep t v. Shelton, OATH Index No. 1684/06, mem. dec. (May 2, 2006) is misplaced. There, the basis for the stop, the failure to signal less than 100 feet from the turn, was credibly rebutted by the respondent who testified that he committed no traffic infraction but that the stop in front of his house was based on prior encounters with the arresting officers. Here, respondent did not testify about the stop. Moreover, while the use of the term traffic infraction is conclusory and maybe insufficient by itself, driving with license plates that belong to another car provided justification for the stop. The officer s unrebutted observations that he smelled the odor of marijuana emanating from respondent s person and the vehicle, that respondent had blood shot, watery eyes, that respondent admitted he had smoked a joint earlier, that he had a bag of marijuana in his front shirt pocket, and that there was a forged temporary registration sticker displayed on the window provided a basis for respondent s arrest. Police Dep t v. Ferrer, OATH Index No. 977/08, mem. dec. (Nov. 14, 2007) (bag of marijuana on floor of car gave probable cause to arrest respondent and search car). In order to satisfy the second prong of the Krimstock Order, petitioner must demonstrate the likelihood that it will prevail in the civil forfeiture action by proving that the seized vehicle was used as the instrumentality of a crime. Police Dep t v. Ricci, OATH Index No. 1404/06, mem. dec. (Mar. 20, 2006). Administrative Code section 14-140 permits the property clerk to seize and retain possession of any property suspected of having been used as a means of committing crime or employed in aid or furtherance of a crime. CPLR section 1310(4) defines instrumentality of a crime as property... whose use contributes directly and materially to the commission of a crime. See Borzuko v. City of New York Police Dep t Property Clerk, 136 Misc. 2d 758, 765 (Sup. Ct. N.Y. Co. 1987). I find petitioner s uncontroverted proof that respondent drove his vehicle under the influence of marijuana, that he had a forged temporary registration on the vehicle, and that he was in possession of marijuana sufficient to demonstrate that respondent used the vehicle as an instrumentality of a crime. Property Clerk v. Robinson, 868 N.Y.S.2d 208 (1st Dep t 2008). As to the third element, the necessity to retain the vehicle pending the forfeiture action, petitioner satisfies this burden by showing that respondent poses a heightened risk to public safety. Property Clerk v. Brown, 57 A.D.3d 325 (1st Dep t 2009).
- 6 - The charge that respondent was driving the vehicle with a forged registration is a felony. In Police Dep t v. Longmore, OATH Index No. 1542/07, mem. dec. (Mar. 30, 2007), this tribunal found that unrebutted evidence that respondent possessed a forged registration and title demonstrated that respondent ignores lawful authority and poses a danger to others. See also Police Dep t v. Solomon, OATH Index No. 1783/04, mem. dec. (Apr. 22, 2004) (heightened risk found where driver had suspended license). Respondent s counsel argues that under Vehicle and Traffic Law section 420-a(1), a car dealer may issue a temporary registration which permits the vehicle to be operated as a duly registered vehicle for thirty days from the date of issuance. Here, there is no evidence that the registration in question was placed there by an authorized dealer. Instead, the uncontroverted evidence shows that respondent was driving the vehicle with a forged registration. Concern about respondent s conduct was exacerbated by his failure to explain why the vehicle was titled and registered in a name different than the dealer s and why respondent s license plates from his Plymouth were on the Ford. In addition, the uncontroverted evidence shows that respondent used the vehicle to transport marijuana and that he operated it while under the drug s influence. These acts also demonstrate a heightened risk to public safety. Unlike the cases involving driving while under the influence of alcohol, a legal substance, marijuana is classified as a controlled substance under the New York Public Health Law, section 3306 schedule I (d)(13) (Lexis 2009). Respondent s reliance on my prior decisions involving the release of vehicles to respondents convicted of driving while under the influence of alcohol is misplaced. In those cases all of the respondents acknowledged that they had been drinking and driving and credibly testified that they appreciated the seriousness of their mistakes. Although respondent s counsel stated that respondent is clearly chastened by this experience and that this will never happen again, there was no testimony from respondent to support these assertions. Therefore, the circumstances of this crime also suffice to show that returning the car to respondent would create a heightened risk to the public.
- 7 - ORDER The Department is entitled to retain the seized vehicle. March 10, 2009 APPEARANCES: ROBERT GIANCOLA, ESQ. Attorney for Petitioner THE LEGAL AID SOCIETY Attorneys for Respondent BY: TRACEY KIM, ESQ. Alessandra F. Zorgniotti Administrative Law Judge