Police Dep’t v



Police Dep’t v. Howard

OATH Index No. 2400/07, mem. dec. (July 23, 2007)

Petitioner not entitled to retain vehicle. Respondent is an innocent owner and returning the vehicle to her does not present a heightened risk to public safety.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

FELICIA HOWARD

Respondent

______________________________________________________

MEMORANDUM DECISION

KEVIN F. CASEY, Administrative Law Judge

Petitioner brought this proceeding to determine its right to retain a vehicle seized as the alleged instrumentality of a crime under section 14-140 of the Administrative Code. At the time of the seizure, it was driven by Jamie Monroe. Respondent Felicia Howard is the vehicle’s registered and titled owner. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), second amended order and judgment (S.D.N.Y. Dec. 6, 2005) (Krimstock Order). Although the petition and notice of hearing also identified Monroe as a respondent, he is no longer a party to this proceeding. See Krimstock Order, ¶ 5 (where registered owner and driver are different, only one may appear at the hearing and preference is given to owner).

On May 27, 2007, the Department seized Howard’s 2006 Nissan, following the arrest of Monroe and Christopher Clerveau for criminal possession of a weapon in the second degree and related offenses (Pet. Exs. 1 and 8). The Department received Howard’s demand for a hearing on June 21, 2007, and scheduled a hearing for July 5, 2007. The matter was adjourned at Howard’s request and the hearing was held on July 19, 2007. At the hearing, Howard testified and both sides offered documentary evidence.

For the reasons below, I conclude that the Department is not entitled to retain the vehicle.

ANALYSIS

The evidence established that Howard drove from Syracuse to Brooklyn, New York on May 26, 2007, for the Memorial Day weekend. She was accompanied by a recent casual acquaintance, Jamie Monroe. Before going to bed that night, Howard allowed Monroe to borrow her vehicle. At about 5:00 a.m. the next morning, the police seized Howard’s car after arresting Monroe and Christopher Clerveau. For two reasons, the Department may not retain the vehicle. First, Howard is an innocent owner. Second, the Department failed to show that retention of the vehicle is necessary to protect the public.

Under the Krimstock Order, the Department had the burden of proving by a preponderance of the evidence that: (i) probable cause existed for the arrest which led to 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 that the vehicle remain impounded pending final judgment in the forfeiture action. Krimstock Order, at 3. 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, 70 (2d Cir. 2002); County of Nassau v. Canavan, 1 N.Y.3d 134, 144-45, 770 N.Y.S.2d 277, 286 (2003).

Howard did not dispute that the police had probable cause to make an arrest. According to the Department’s documentary evidence, the police received a report of a dispute involving a firearm and a description of a suspect. One of the responding officers saw Clerveau, who matched the description of the suspect, place an object inside the rear passenger seat of Howard’s vehicle. Monroe was at the steering wheel and the engine was running. As Clerveau got into the vehicle’s backseat, a police officer saw a handgun in plain view behind the driver’s seat. The police seized the weapon and arrested Clerveau and Monroe. During the arrest, Clerveau flailed his arms and in attempt to avoid handcuffing. The police later discovered that the handgun was loaded, there was a gravity knife in the vehicle’s center console, and Monroe’s license had been suspended (Pet. Exs. 1-3; Resp. Exs. A-B). This unrebutted evidence was sufficient to show that the police had probable cause to make an arrest.

The Krimstock Order’s second prong requires a determination of whether the Department is likely to prevail at a civil forfeiture action. The Department must show that the vehicle was used in “furtherance of a crime” and that Howard “permitted or suffered” such use. NYC Admin. Code § 14-140(e)(1). Because Howard claims to be an innocent owner, the Department must show that she knew or should have known that the car would be used in furtherance of a crime. Property Clerk, New York City Police Dep’t v. Pagano, 170 A.D.2d 30, 573 N.Y.S.2d 658 (1st Dep’t 1991); see Police Dep’t v. Reid, OATH Index No. 853/07, mem. dec. (Dec. 19, 2006) (evidence that owner allowed the driver to borrow the car occasionally was not enough to rebut innocent owner defense); Police Dep’t v. Hill, OATH Index No. 633/07, mem. dec. (Oct. 24, 2006) (same).

Here, the Department showed that the vehicle was used in furtherance of a crime. The unrefuted evidence demonstrated that a loaded weapon was found in the vehicle and that Monroe drove with a suspended license. Howard’s counsel asserted that felony charges against Monroe were scheduled to be dismissed. But that does not change the analysis. Even if the felony charges were dismissed and Monroe was convicted of only a misdemeanor for driving with a suspended license, the vehicle was used in furtherance of a crime. See Veh. Traf. Law § 511(1). Indeed, if all the charges against Clerveau and Monroe were dropped by the prosecutor, the Department could still prevail at a civil forfeiture proceeding, which has a less demanding burden of proof. See Property Clerk of New York City Police Dep’t v. Conca, 148 A.D.2d 301, 302, 538 N.Y.S.2d 268, 269 (1st Dep’t 1989) (“judgment of acquittal, or a decision to abandon the criminal charges, is not determinative in the forfeiture proceeding as to whether a crime was committed”).

Although the Department proved that the vehicle was used in the furtherance of at least one crime, it failed to show that Howard “permitted or suffered” such use. Howard, a lifelong resident of Syracuse, testified that she purchased this vehicle in February 2007. She was solely responsible for its maintenance and insurance.

A few months ago, Howard met Monroe and his brother, who lived in a different part of Syracuse. They were merely friends of hers. As Memorial Day approached, Howard talked with others about going away for the weekend. Howard had never been to New York City and she knew that Monroe’s sister lived here. So she offered to give Monroe a ride.

On May 26, 2007, Howard drove Monroe to his sister’s home in Brooklyn, where they planned to stay for the weekend. Howard, who normally worked 50 to 60 hours a week at a nursing home, was not used to staying up late. At around 10:00 p.m., she decided to go to bed for the evening. She agreed to let Monroe borrow the car. According to Howard, the only other time that she leant her car to anyone was when she allowed her niece to use it for her prom. Howard had no idea that Monroe was engaged in any unlawful activity and she was not aware of any weapons in her vehicle. She did not know about Monroe’s prior criminal record. See Police Dep’t v. Beverly, OATH Index No. 1225/07, mem. dec. at 6 (Feb. 13, 2007) (innocent owner defense established, in part, where the Department failed to show that vehicle owner knew about her boyfriend’s criminal past). In light of the brief nature of their friendship, it is understandable that Monroe would be secretive about his prior and future criminal conduct.

The Department argued that Howard’s testimony was completely fabricated. I disagree. Without any hesitation, Howard answered all of the Department’s questions. Her responses were clear and candid. Moreover, she supported her testimony with an abundance of physical evidence, including insurance records, a bank statement, an oil change receipt, tax documents, and the purchase agreement for the car (Resp. Exs. D-L). The evidence showed that Howard is an innocent owner, who purchased, insured, and maintained this vehicle with her own money.

There was no credible evidence that Monroe had any ownership interest in the car, beneficial or otherwise. Cf. Police Dep’t v. Bloise, OATH Index No. 2138/04, mem. dec. (June 17, 2004) (although father was registered owner, it was more likely that car which had been modified for high-speed use actually belonged to the son; especially where father gave implausible testimony). It does not appear that Monroe ever drove Howard’s vehicle prior to May 26, 2007.

As for the Krimstock Order’s third prong, necessity to retain a vehicle may be shown where returning the vehicle to a respondent presents a heightened risk to public safety. Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286. Such a heightened risk may be shown, for example, by the underlying facts of the crime. See Police Dep’t v. Fung, OATH Index No. 1195/05, mem. dec. at 6 (Jan. 27, 2005) (“heightened risk” to public safety not shown where respondent drove at a high rate of speed and was arrested for reckless endangerment and reckless driving).

Here, there was no evidence that returning the vehicle to Howard poses any risk to the public. The Department proved that Monroe has a substantial criminal record. But the car would not be returned to him; it belongs to Howard. She is a mature, hard-working, law-abiding person who made an isolated judgment error when she allowed an irresponsible person borrow her vehicle. Based upon the evidence presented at the hearing, I find highly unlikely that Howard will be lending her car to anyone in the foreseeable future.

In sum, Howard is an innocent owner of the vehicle and returning it to her would not pose a heightened risk to the public.

ORDER

The Department is directed to release the vehicle forthwith.

Kevin F. Casey

Administrative Law Judge

July 23, 2007

APPEARANCES:

JOONG-SIK CHAE, ESQ.

Attorney for Petitioner

DANIEL K. PERLMAN, ESQ.

Attorney for Respondent

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