Police Dep't v



Police Dep't v. Robinson

OATH Index No. 1768/07, mem. dec. (Apr. 20, 2007)

Petitioner is not entitled to retain custody of seized vehicle having failed to establish probable cause for respondent’s arrest and likelihood of success at a civil action for forfeiture of the seized vehicle. Vehicle ordered released.

_______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

JASON ROBINSON

Respondent

______________________________________________________

MEMORANDUM DECISION

JULIO RODRIGUEZ, Administrative Law Judge

Petitioner 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, Jason Robinson, is the registered and titled owner of the vehicle. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), second amended order and judgment (S.D.N.Y. Dec. 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 2005 Chevrolet Tahoe at issue, property clerk voucher number B077437V, was seized by the Department on February 22, 2007 in connection with respondent’s arrest for criminal possession of a controlled substance in the third and seventh degrees in violation of Penal Law sections 220.16(1) and 220.03. The Department received respondent’s demand for a hearing and scheduled one for April 10, 2007. The hearing was adjourned at respondent’s request and was held on April 17, 2007. Respondent refused to testify after invoking his Fifth Amendment rights. He argued the Department did not establish any of the three prongs under the Krimstock Order. I conclude, based on the reasons discussed below, that the Department failed to meet its burden and is not entitled to retain the vehicle. I order that the vehicle be released.

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 that: (i) probable cause existed for the arrest pursuant to which the vehicle was seized; (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 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, 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”).

Petitioner’s documentary evidence establishes that on February 22, 2007 the Police Department executed two search warrants. One warrant authorized the search of 16A Sylva Lane, in Staten Island (Pet. Ex. 7). The other warrant authorized the search of the vehicle at issue, which at the time of the search was parked outside of 16A Sylva Lane. Id. The searches yielded the following contraband: 49 bags containing alleged crack cocaine (“49 bags”), recovered from the bedroom floor at 16 Sylva Lane, and a ziplock bag containing alleged crack cocaine (“ziplock”) recovered from the respondent’s car. Id. Respondent and another individual, who was in the bedroom when the 49 bags were recovered, were arrested. The criminal court complaint reads that “defendants were in [16A Sylva Lane] in that deponent observed [respondent] entering and exiting [16A Sylva Lane] and [co-defendant] was in the bedroom….”  The respondent was not in the car when the warrant was executed and the ziplock recovered. By way of affidavit, the arresting officer states that on “February 15, 2007 the subject vehicle…was used by Jason Robinson to facilitate a drug transaction involving crack cocaine.”  The affidavit contains no additional information (Pet. Ex. 5).

The Department’s evidence fails to establish probable cause for respondent’s arrest and its likelihood of success in a civil action for forfeiture of respondent’s car. The record contains no evidence that respondent ever had actual physical possession of the 49 bags or the ziplock seized from the bedroom and respondent’s car, respectively. Nor does the record contain any evidence that respondent was in constructive possession of the seized contraband. See Penal Law § 10.00(8).

The relevant factors in evaluating whether respondent had constructive possession of or exercised dominion or control over the 49 bags seized inside of 16A Sylva Lane include: whether the respondent's name is on the lease, his possession of keys to the premises, the absence or presence of the respondent’s personal belongings in the premises, the frequency of his visits, and whether or not the respondent had access to the bedroom from which the 49 bags were recovered. See People v. Simon, 107 A.D.2d 196, 486 N.Y.S.2d 118 (4th Dep’t 1985).

The Department’s evidence connecting respondent with 16A Sylva Lane consisted of respondent’s New York State Repository Inquiry Report (“rap sheet”), which listed 16A Sylva Lane as one of two addresses under the address portion of the Identification Information section (Pet. Ex. 6), and the criminal court complaint (Pet. Ex. 7). This evidence is insufficient to establish that respondent had dominion or control over the premises or the 49 bags recovered within. The respondent’s rap sheet lists a Hill Street address in Staten Island on two prior arrests (Pet. Ex. 6) and lists the 16A Sylva Lane address only as it relates to respondent’s instant arrest. The Hill Street address listed on the rap sheet is consistent with the address listed on respondent’s DMV abstract (Pet. Ex 9), the address respondent provided on the Notice of Right to Retention Hearing form (Pet. Ex. 1), and the address to which the Department mailed the Notice of Retention Hearing (Pet. Ex. 3). There is no evidence that the Department served respondent with notice of hearing at 16A Sylva Lane, the address which the Department argued is respondent’s residence.

The statement in the criminal court complaint that respondent was observed “entering and exiting” 16A Sylva Lane does not shed light on whether the respondent was inside the premises when the 49 bags were seized,[1] if he had any control over the premises, or if he was simply a visitor. The evidence failed to show that respondent exercised dominion or control over the bedroom or house at 16A Sylva Lane and thus was in constructive possession of the 49 bags seized therein. Simon, 107 A.D.2d 196 at 197; People v. Robertson, 48 N.Y.2d 993, 425 N.Y.2d 545 (1980).

Similarly, the evidence failed to show that respondent was in constructive possession of the ziplock containing alleged crack cocaine recovered from his car. It is undisputed that respondent was not in the car when it was searched and that respondent is the registered and titled owner of the car. However, on this record, the fact that respondent owns the car alone is insufficient to establish constructive possession of the ziplock seized within. The Department argued that respondent’s ownership of the car combined with the issuance of the warrants, the seizure of the 49 bags from the bedroom, and the arresting officer’s statement in the affidavit that on “February 15, 2007 the subject vehicle…was used by Jason Robinson to facilitate a drug transaction involving crack cocaine,” suffices to establish that respondent possessed the ziplock recovered from the car on February 22, 2007. I disagree. First, as discussed above, the seizure of the 49 bags was in no way connected to respondent. Second, while it is undisputed that respondent is the registered and titled owner of the car, there is no evidence that connects the ziplock recovered from the car to respondent. The respondent was not in the car when the ziplock was seized and there is no evidence indicating where the ziplock was recovered from within the car, who drove the car to the location, how long the car had been at the location, or when respondent last occupied the car. Third, the arresting officer’s affidavit, while admissible at this proceeding, is insufficient to cure the gaps in the Department’s proof. The affidavit refers to an uncharged incident that allegedly occurred seven days prior to respondent’s arrest, did not reveal the affiant’s basis of knowledge and contained a one sentence conclusory statement devoid of any facts.

The Department requested that I draw a negative inference against respondent based on his refusal to testify after invoking his Fifth Amendment rights. Under the circumstances, I decline the Department’s invitation to draw a negative inference from respondent’s refusal to testify, presumably about the events surrounding his arrest. The use of a negative inference is discretionary and cannot be used to fill a deficiency in the Department’s case or as proof of any essential fact, i.e. that respondent possessed the 49 bags or the ziplock. Dep’t of Sanitation v. Richins, OATH Index No. 167/01 (Oct. 15, 2001).

ORDER

The Department failed to satisfy its burden of proof under the Krimstock Order, is not entitled to retain the vehicle pending the forfeiture action, and is directed to release respondent’s vehicle forthwith.

Julio Rodriguez

Administrative Law Judge

April 20, 2007

APPEARANCES:

MICHAEL DECILLIS

Representative for Petitioner

RAYMOND L. RODRIGUEZ, ESQ.

Attorney for Respondent

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[1] The Department’s representative stated that he did not know whether the respondent was inside or outside the premises when the warrant was executed and the 49 bags recovered.

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