OATH Index No



Police Dep't v. Passley

OATH Index No. 2401/07, mem. dec. (July 11, 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-

KEICHA PASSLEY

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 Keicha Passley, the registered owner of the seized car. Her former “boyfriend”, Amir Abdul-Malik, 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 2002 Lexus RX 300 (Voucher # B151259), was seized by the Department on January 13, 2007 in connection with Mr. Malik’s arrest for criminal possession of a weapon in the second degree (Penal Law Sec. 265.03); criminal possession of a loaded weapon in the second degree (Penal Law Sec. 265.03 subsection 3); criminal possession of stolen property in the fourth degree (Penal Law Sec. 165.45, subsection 4); driving while intoxicated (Vehicle and Traffic Law Sec. 1192) and violation of the motor vehicle license law (Vehicle and Traffic Law Sec. 509) (Pet. Ex. 5). Mr. Malik’s criminal case is pending.

Following receipt of Ms. Passley's demand for a hearing, the Department scheduled a hearing for July 5, 2007. Ms. Passley appeared, without counsel, and challenged the Department’s right to retain the car on the grounds that she is an innocent owner. The record remained open until July 6, 2007 to permit the Department to submit a brief. 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. 1, 2 & 3) submitted by the Department is sufficient to establish probable cause for Mr. Malik’s arrest. The Department’s evidence showed that, on January 13, 2007, a police officer observed the car parked on a dead end street with the engine running late at night (Pet. Ex. 3). These factors gave the officer sufficient reason to investigate the car and to determine whether it was being stolen. The officer observed Mr. Malik behind the wheel and he had red watery eyes, an odor of alcohol, and his speech was impaired (Pet. Ex. 3). The officer asked for Mr. Malik’s driver’s license, but Mr. Malik only presented a learner’s permit (Pet. Ex. 3). Mr. Malik was taken to the precinct to be tested and his blood alcohol level was .058% (Pet. Ex. 3). The officer searched the car and discovered a .357 revolver, the gun in question (Pet. Ex. 3). This evidence clearly establishes probable cause.

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. Malik used the car as the instrumentality of a crime when he transported the gun, the Department has failed to disprove the innocent owner defense. It is well established 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. Passley "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. Passley testified that she is serving in the military and was deployed to Iraq for one year. Upon Ms. Passley’s return from Iraq in June 2006, she met Mr. Malik and they became romantically involved. They later shared an apartment for approximately six months. During that time, Ms. Passley testified that she allowed him use of the car, but it was under her supervision because Mr. Malik only had a learner’s permit. However, on January 13, 2007, Mr. Malik took the car without permission and used it to transport the gun in question.

Ms. Passley credibly testified that she was not aware of Mr. Malik’s prior criminal record. She was aware of Mr. Malik’s involvement in matters before the Family Court, but she testified that these matters only involved Mr. Malik’s family and did not involve crimes. The Department failed to establish that these Family Court matters dealt with Mr. Malik’s involvement in criminal matters. The Department also failed to establish that Ms. Passley knew that Mr. Malik possessed a gun. There was simply no evidence presented indicting that Ms. Passley knew or should have known that Mr. Malik possessed a gun.

Finally, the Department cannot argue that Mr. Malik 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. Malik has a possessory interest or that he exercised dominion and control over the car. Ms. Passley purchased the car without any monetary assistance from Mr. Malik. Ms. Passley is also the registered owner of the car and Mr. Malik’s name does not appear on any documents related to the car’s ownership. Mr. Malik does not contribute to the car’s maintenance or to the purchase of gas. In sum, the Department has failed to prove that Ms. Passley is not an innocent owner.

I do not need to reach the third prong.

ORDER

The Department is not entitled to retain the seized vehicle.

Roberto Velez

Chief Administrative Law Judge

July 11, 2007

APPEARANCES:

JOONG-SIK CHAE, ESQ.

Attorney for Petitioner

KEICHA PASSLEY

Respondent

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