Police Dep't v



Police Dep't v. Perez

OATH Index No. 2422/07, mem. dec. (July 27, 2007)

Petitioner is not entitled to retain respondent’s vehicle pending the outcome of civil forfeiture action as petitioner did not meet its burden of showing that non-driver owner was not an innocent owner.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

JOANNA PEREZ

Respondent

______________________________________________________

MEMORANDUM DECISION

ROBERTO VELEZ, Chief Administrative Law Judge

Petitioner, the Police Department, brings this proceeding to determine its right to retain a car seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. Respondent is Joanna Perez, the registered and titled owner of the seized car. Her “common law brother-in-law”, Eric Claudio, was the driver of the seized car. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), amended order and judgment (S.D.N.Y. Jan. 22, 2004), as amended December 6, 2005 (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 car at issue, a 1998 Lincoln Navigator (Voucher # B161763), was seized by the Department on May 15, 2007 in connection with Mr. Claudio’s arrest for attempted assault on a police officer (Penal Law Sec. 120.08); reckless endangerment in the first degree (Penal Law Sec. 120.25); attempted assault in the second degree (Penal Law Sec. 120.05); reckless endangerment in the second degree (Penal Law Sec. 120.20); criminal possession of a weapon in the fourth degree (Penal Law Sec. 265.01); unlawful fleeing a police officer in a motor vehicle in the third degree (Penal Law Sec. 270.25); aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law Sec. 511(2)); reckless driving (Vehicle and Traffic Law Sec. 1212); aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law Sec. 511(1)); attempted assault in the third degree (Penal Law Sec. 120); harassment in the second degree (Penal Law Sec 240.26); and violation of maximum speed limits (Vehicle and Traffic Law Sec. 1180) (Pet. Ex. 7).

Following receipt of Ms. Perez's demand for a hearing, the Department scheduled a hearing for July 10, 2007. The case was adjourned to July 17, 2007 to allow for production of requested documents. On July 17, 2007, Ms. Perez appeared with counsel and her counsel challenged the jurisdiction of this tribunal to hear this case. The counsel requested a continuance, which was granted. The hearing resumed on July 24, 2007 and was completed on the same day. Ms. Perez challenged the Department’s right to retain the car on the grounds that she is an innocent owner. As set forth below, I conclude that the Department is not entitled to retain the car.

ANALYSIS

In the instant case, the Department seeks to sustain its retention of the seized car as the instrumentality of a crime, not as evidence in a criminal case. Therefore, the Department bears the burden of proving three points by a preponderance of the evidence: (i) that probable cause existed for the arrest pursuant to which the car was seized; (ii) that it is likely that the Department will prevail in a civil action for forfeiture of the car; and (iii) that it is necessary that the car remain impounded to ensure its availability for a judgment of forfeiture. Canavan, 1 N.Y.3d at 144-145, 770 N.Y.S.2d at 286; 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, 306 F.3d at 69, 70.

With respect to the first element of the Krimstock Order, I find that the documentary evidence (Pet. Exs. 5, 6 & 8) submitted by the Department is sufficient to establish probable cause for Mr. Claudio’s arrest. The Department’s evidence showed that, on May 15, 2007 at about 7:00 p.m., Police Officers Jean Hunt and Emanuele Leggio saw the car in question parked next to a fire hydrant on 1555 Odell Street in the Bronx (Pet. Exs. 6 & 8). Officers Hunt and Leggio approached the car because they were going to issue a traffic ticket to the driver, who was Mr. Claudio (Pet. Ex. 8). Officer Hunt stood in front of the car and Officer Leggio approached the driver’s side of the car (Pet. Ex. 8). Instead of accepting the ticket, Mr. Claudio drove quickly away, nearly striking Officer Hunt. The officers pursued Mr. Claudio in their police cruiser and observed Mr. Claudio breaking the speed limit; going through at least 10 stop signs and 4 red lights; and nearly hitting several other cars (Pet. Ex. 8). Ultimately, Mr. Claudio drove the car down a dead end street and abandoned the car (Pet. Ex. 6). The officers chased Mr. Claudio on foot (Pet. Ex. 6). The officers caught and arrested Mr. Claudio (Pet. Ex. 6). It was later determined that Mr. Claudio had a suspended license (Pet. Ex. 8). This evidence clearly establishes probable cause for his arrest.

As to the second prong, the Department has not satisfactorily established that it would prevail in a forfeiture proceeding. Despite the fact that the Department has proven that Mr. Claudio used the car as the instrumentality of a crime, the Department has failed to disprove the innocent owner defense. It is well established that when a respondent alleges innocent ownership, the Department has the burden to disprove that defense. See 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). To meet that burden, the Department must show that Ms. Perez "permitted or suffered" the illegal use of her car; that is, she knew or should have known that it would be used in furtherance of a crime. NYC Admin. Code § 14-140(e); Pagano, 170 A.D.2d at 35, 573 N.Y.S.2d at 661. The Department's evidence did not satisfy that burden.

Ms. Perez testified that she was employed at Linden Auto Sales, transporting customers to and from the car lots. Ms. Perez credibly testified that, on May 15, 2007, she loaned the car to her sister Jeanette Perez because her sister needed the car to run errands and to take her children to school. Ms. Perez agreed to loan the car for the day, but her sister needed to return the car later that evening. Ms. Perez never agreed to lend the car to Mr. Claudio, who is the common law husband to Jeanette Perez.

Ms. Perez did testify that she was aware of Mr. Claudio’s prior arrests and incarceration for drug related and weapon related offenses (Pet. Ex. 7). However, Mr. Claudio’s repository inquiry report contains no indication that the prior arrests or incarceration related to the use of a car. I therefore find that the knowledge of prior arrests or an incarceration was insufficient to meet the Department’s burden of showing Ms. Perez could or should have forseen that Mr. Claudio might commit a crime using her car. Police Dep't v. Plaskett, OATH Index No. 463/06, mem. dec. (Sept. 8, 2005) (finding knowledge of a prior arrest for drug and weapon offenses was not sufficient to meet Department’s burden of showing respondent could have forseen that her son would commit a crime while using the vehicle).

Finally, the Department cannot argue that Mr. Claudio is the beneficial owner of the car. Beneficial ownership refers to a situation where the car’s actual user is distinct from the nominal owner. See Police Dep't v. Bacon, OATH Index No. 551/06, mem. dec. (Oct. 19, 2005) (finding driver was the beneficial owner where he was the sole borrower on the car loan, payments on the loan were made from the driver’s bank account, and titled owner’s bank records did not support her statement that she provided the driver with funds to make the car payments); Police Dep't v. Bloise, OATH Index No. 2138/04, mem. dec. (June 17, 2004) (finding son of titled owner was beneficial owner because car had been modified for high speed driving). Beneficial ownership or a possessory interest in a car may be established by dominion and control over the vehicle. See Vergari v. Kraisky, 120 A.D.2d 739, 502 N.Y.S.2d 788 (2d Dep't 1986).

In prior case law, certain factors have been evaluated to determine whether or not a person is a beneficial owner of a car. Such factors include: the name on the documents related to ownership, the person who bears the expense for the vehicle or for the insurance, the primary user of the car, how consistently the person uses the car, and how many cars the person owns. See Police Dep't v. Torres, OATH Index No. 1412/06, mem. dec. (Mar. 31, 2006) (finding nephew was not beneficial owner of aunt’s vehicle because his name did not appear on any documents related to ownership, he did not make loan payments on the vehicle, aunt was the primary user of the vehicle and the vehicle was her primary mode of transportation).

In the current case, the Department has not established that Mr. Claudio has a possessory interest or that he exercised dominion and control over the car. Ms. Perez testified that her uncle gave her the car as a gift in January 2007 (Resp. Ex. C) and she then registered the car under her name. Mr. Claudio’s name does not appear on any documents related to the car’s ownership. Nor does it appear on the documents related to car insurance payments (Resp. Ex. C). In sum, the Department has failed to prove that Ms. Perez is not an innocent owner.

I do not need to reach the third prong, nor do I need to reach the issues raised by counsel related to chapter 12-36 of title 38 of the Rules of the City of New York.

ORDER

The Department is not entitled to retain the seized vehicle.

Roberto Velez

Administrative Law Judge

July 27 2007

APPEARANCES:

MICHAEL DeCILLIS, ESQ.

Attorney for Petitioner

LAW OFFICES OF JAMES B. LeBOW

Attorneys for Respondent

BY: JAMES LeBOW, ESQ.

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