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Police Dep’t v. Lord
OATH Index No. 942/08, mem. dec. (Dec. 6, 2007)
Petitioner is entitled to retain respondent’s vehicle pending outcome of civil forfeiture proceeding. Proof that petitioner provided actual notice of respondent’s right to a retention hearing at time of arrest was sufficient to avoid dismissal despite respondent’s assertion that he did not receive second notice in the mail. Petitioner’s evidence that respondent had previously been arrested for drinking and driving was not covered by a sealing order issued when the related prior criminal case against respondent was dismissed, and could be used in reaching conclusion that releasing vehicle to respondent would pose a heightened risk to public safety.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
-against-
John Lord
Respondent
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MEMORANDUM DECISION
ROBERTO VELEZ, Chief Administrative Law Judge
Petitioner, the Police Department, brought this proceeding to determine its right to retain a vehicle seized as the alleged instrumentality of a crime pursuant to section 14140 of the Administrative Code. Respondent John Lord was the registered owner and driver of the vehicle at the time it was seized. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), amended order and judgment (S.D.N.Y. Jan. 22, 2004) (the “Krimstock Order”), as amended December 6, 2005.[1] 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 vehicle in issue is a 2005 Mercedes Benz, property clerk voucher number B137386, which was seized by the Department on August 2, 2007, in connection with respondent’s arrest for operating a motor vehicle while intoxicated (N.Y. Veh. & Traf. Law § 1192(3) (Lexis 2007)), operating a motor vehicle while impaired (N.Y. Veh. & Traf. Law § 1192(1) (Lexis 2007)), and reckless driving (N.Y. Veh. & Traf. Law § 1212 (Lexis 2007)). Respondent’s demand for a hearing was received on October 29, 2007, and trial was scheduled for November 9, 2007. On respondent’s request, trial was adjourned to November 19, 2007, at which time he appeared with counsel and contested the Department’s petition.
During trial, counsel for respondent objected to the admissibility of certain evidence presented by the Department relating to a prior January 2007 arrest of respondent for driving while intoxicated, on the grounds that the evidence was subject to a sealing order. I refrained from making a determination at that time and instead held the record open until December 3, 2007, for both parties to submit memoranda in support of their positions, at which point the record was closed. As set forth below, I conclude that the evidence in question is admissible and that Department is entitled to retain the vehicle.
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: (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 a civil action for forfeiture of 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. KrimstockOrder, as amended December 6, 2005,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 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 (hearing is intended to establish “the validity, or at least the probable validity, of the underlying claim”) (citation omitted).
As a preliminary matter, during trial, Mr. Lord asserted that he had not been properly served with notice of his right to a retention hearing by mail within five days of his arrest, although he did acknowledge receiving notice in person at the time of his arrest. The Krimstock Order sets forth detailed notice requirements:
Notice of the right to a forfeiture hearing will be provided at the time of seizure by attaching to the voucher already provided to a person from whom a vehicle is seized a notice, in English and Spanish, as set forth below. A copy of such notice will also be sent by mail to the registered owner and/or title owner of the vehicle within five business days after the seizure.
Krimstock Order, ¶ 3. The Krimstock Order requires service both at the time of seizure and by mail. Police Dep’t v. Cardona, OATH Index No. 1476/06, mem. dec. (Mar. 29, 2006). This tribunal has repeatedly held that these notice requirements are to be strictly construed against the Department and has ordered vehicles be released where the Department has failed to comply. See Police Dep’t v. Karmansky, OATH Index No. 1694/07, mem. dec. (Mar. 30, 2007) (releasing vehicle where respondent was not served with notice at time of arrest or by mail); Police Dep’t v. House, OATH Index No. 587/07, mem. dec. (Sept. 27, 2006) (ordering release of vehicle where respondent was not served at time of arrest or by mail within five days of arrest); Police Dep’t v. Caban, OATH Index No. 107/07, mem. dec. (July 14, 2006) (granting respondent’s motion to dismiss where respondent was not served at time of arrest).
I previously held that the Department’s failure to provide notice by mail within five days of an arrestrequires the release of the seized vehicle, even when it provided notice in person at the time of arrest. Police Dep’t v. Pires, OATH Index No. 2080/07, mem. dec. (June 18, 2007). In Pires, I reasoned that while previous OATH decisions had found an exemption to the requirement of both personal and mail service where the driver was also the owner and was served with actual notice at the time of arrest, “the better practice is to give dual notice.” Id.at 3-4. Upon reconsideration, however, within Pires,I did not consider the significance of actual notice. With the exception of Pires, this tribunal has found that actual notice at the time of arrest serves to cure defects in the service of the second mailed notice in vehicle retention cases. See, e.g.,Police Dep’t v. Cardona, OATH Index No. 1476/06, mem. dec. (Mar. 29, 2006) (finding Department’s written notice of hearing rights at the time of seizure satisfactory even if it did not serve respondent additional notice by mail within five days of the seizure); Police Dep’t v. Adams, OATH Index No. 1997/06, mem. dec. (June 30, 2006)(finding the Department’s failure tomail a copy of the notice was not grounds for dismissal since respondent, who was the driver-owner, had actual notice of his rights at the time of arrest). The rational behind requiring notice both at the time of arrest and by mail is to make sure that owners receive actual notice of their right to a vehicle retention hearing. See Cardona, OATH 1476/06, mem. dec.at 3. Where the driver and owner are one in the same, the second mailed notice is duplicative of the first notice, as the owner has already received actual notice at the time of arrest. Where owners have received actual notice of their right to a retention hearing at the time of arrest, as Mr. Lord did here, it should not be a fatal defect requiring dismissal that they did not also receive the second notice in the mail within five days.
Accordingly, respondent’s motion to dismiss the petition based on his assertion that the Department failed to provide the second notice by mail within five days is denied.[2] The Department should not, however, interpret this to mean it is excused from timely serving notices at the time of arrest and by mail. Both are required under the Krimstock Order. In the future, it should begin producing and bringing to the hearing affidavits of service created at the time of mailing documenting the mailing of the second notice so that it can properly respond to procedural challenges on service. These affidavits should detail who actually mailed the notice, the date the notice was mailed, the address or addresses the notice was mailed to, and the method of service. See Police Dep’t v. Lee, OATH Index No. 778/08, mem. dec. at 11 (Oct. 31, 2007).
Turning to the merits of the instant proceeding, the documentary evidence submitted by the Department established thatat about 4:00 a.m. on August 2, 2007, while operating the subject vehicle in the vicinity of Allen and Delancy Streets, Mr. Lord was observed stopped at a green traffic light andinitially did not respond to police instructions to move his car (Pet. Ex. 4a). Once he resumed driving, Mr. Lord beganweaving in and out of traffic without signaling, forcing other vehicles to stop short or move out of his way in order to avoid being struck by his vehicle (Pet. Exs 4a, 5, 7). Despite multiple demands by the police that he pull his vehicle over, Mr. Lord repeatedly refused to do so (Pet. Exs. 4a, 5). After eventually stopping, he wasapproached by the arresting officer, Officer Kien Gian, who observed that Mr. Lord’s speech was slurred and incoherent, his breath smelled strongly of alcohol, his face was flushed, and he was unable to stand (Pet. Exs. 4a, 5, 7). Mr. Lord refused to submit to a field sobriety test or breathalyzer test (Pet. Exs. 4a, 5, 7).
During trial, Mr. Lord refused to testify when called by Department’s counsel, citing his Fifth Amendment privilege against self incrimination. Counsel for the Department requested that I draw an adverse inference from Mr. Lord’s refusal to testify. A pending criminal case does not serve as a constitutional bar to the conduct of a civil or administrative proceeding stemming from the same underlying facts or transaction. SeeBaxter 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”); Matter of Germaine B., 86 A.D.2d 847, 447 N.Y.S.2d 448 (1st Dep’t 1982) (allowing adverse inference where criminal defendants choose not to give testimony in Family Court proceeding that could be used against them in criminal trial); Dep’t of Correction v. Dasque, OATH Index No. 1270/01, mem. dec. (July 26, 2001) (not unconstitutionally impermissible to require a defendant to go forward in a civil or administrative proceeding despite the pendency of criminal charges).
Here, respondent initiated this proceeding by filing his demand for a hearing; he had control over the timing of the hearing. Respondent thereafter had the choice to either participate in this hearing or to remain silent at the risk that an adverse inference would be drawn and that his right to retain his vehicle pending a civil forfeiture action might be impaired. Baxter, 425 U.S. at 316-20; Jason C. v. Elminia E., 134 A.D.2d 501, 502, 521 N.Y.S.2d 283, 285 (2d Dep’t 1987). Respondent chose to remain silent. Although I do not find a negative inference necessary in this case to establish the three prongs of the Krimstock Order,I stilldrawsuch inference from respondent’s refusal to testifyand take the evidence presented in the light most favorable to petitioner, including all reasonable inferences to be drawn from such evidence. See Police Dep’t v. Chan, OATH Index No. 197/08, mem. dec. (Aug. 14, 2007).
With respect to the first prong of the Krimstock Order, probable cause for the arrest, respondent’s attorney attacked the sufficiency of the Department’s documentary evidence on two grounds: first, that the arrest report, complaint report, and criminal court complaint stated different and inconsistent facts relating to the circumstances of Mr. Lord’s arrest; and second, that the evidence did not establish reasonable suspicion for the arresting officers to stop respondent’s vehicle in the first place. I do not find merit to either of these arguments.
While the arrest report and criminal complaint were more detailed than the complaint report, respondent failed to demonstrate how they were inconsistent with one another, such that I should discredit them. The arrest report reads, in relevant part:
Def. did stop at green traffic light at East Houston Street and 3rd Ave. Def. was observed driving recklessly weeving in and out of traffic. When order by a/o to go via loud speaker def. did not respond to command to move his veh. Def. also refused order to stop. Def. refused to stop on numerous. When veh. was finally stop def. was observed to be incoherent . . . .
Similarly, the criminal court complaint states, “deponent observed the defendant . . . was intoxicated . . . [and] observed the defendant changing lanes without signaling, weaving in and out of traffic causing other vehicles to stop short and move out of the defendant’s way in order to avoid being struck by the defendant’s vehicle,” omitting mention of respondent stopping at a green light butproviding additional detail as to respondent’s weaving. The complaint states, “At t/p/o deft. was observed operating recklessly . . . traveling s/b on Delancy St. Upon veh. stop deft. was observed to be intoxicated.” While the complaint report sets forth respondent’s conduct in the term “recklessly,” the arrest report and criminal court complaint provide detailed descriptions of respondent’s actions. Although only the arrest report indicates respondent was stopped at a green light, neither the complaint report nor criminal court complaint contradict it.
This tribunal previously found that the Department’s documentary evidence was inconsistent where an arrest report and property voucher indicated a respondent was observed, intoxicated, exiting his vehicle but did not indicate whether respondent had been in the driver’s seat of the vehicle or if the ignition was on, required for the crime of DWI, while the criminal court complaint only indicated that the respondent was operating the vehicle and the ignition was on, but not the conduct that led the officer to approach the respondent. Police Dep’t v. Rios, OATH Index No. 146/06, mem. dec. (July 21, 2005). In the present case, the arrest report, complaint report, and criminal complaint are not inconsistent and each alone provide sufficient justification for the arresting officer to have stopped respondent’s car and subsequently arrested respondent.
A policeofficer may stop and detain a person if the officer has reasonable suspicion, based on specific and articulable facts and rational inferences drawn therefrom, that the person is committing or about to commit a traffic violation or crime. People v. Robinson, 97 N.Y.2d 341, 350, 741 N.Y.S.2d 147, 152 (2001);People v. Jones, 172 A.D.2d 265, 266, 568 N.Y.S.2d 88, 89 (1st Dep’t 1991). Thereafter, an arrest is “justified upon a finding of probable cause based upon information sufficient to support a reasonable belief that a person has committed a crime.” Jones, 172 A.D.2d at 266, 568 N.Y.S.2d at 89. Here, the Department established that Mr. Lord was observed stopped at a green traffic light and also weaving in and out of traffic, almost causing accidents, and that once stopped, respondent had slurred speech, trouble remaining upright, and smelled of alcohol (Pet. Ex. 5). The observance of respondent stopped at a green light and weaving in and out of traffic in a way that other cars had to take precautions to avoid accidents gave rise to a reasonable suspicion that respondent had committed a traffic violation or crime which justified the initial stop. See People v. Nesbitt, 1 A.D.3d 889, 767 N.Y.S.2d 187 (4th Dep’t 2003) (police officer had reasonable suspicion to stop driver where officer observed him drive off the road three times, drive left of center, and fail to signal a left-hand turn); People v. Moore, 277 A.D.2d 254,715 N.Y.S.2d 723 (2d Dep’t 2000) (state trooper had adequate justification for stopping vehicle after he observed driver violating traffic statutes by executing unsafe lane change and speeding); People v. Johnson, 254 A.D.2d 500, 681 N.Y.S.2d 30 (2d Dep’t 1998) (state troopers justified in stopping vehicle after observing lane violation); People v. Ogden, 250 A.D.2d 1001, 673 N.Y.S.2d 249 (3d Dep’t 1998) (stop justified by reasonable suspicion where officer observed vehicle straddling double-yellow line for about three seconds). Once the arresting officer observed that respondent appeared intoxicated, the level of suspicion increased to probable cause permitting his arrest. Police Dep’t v. Modlinger, OATH Index No. 1833/05 (May 4, 2005) (officer’s observations of intoxication sufficient in absence of chemical test).
To the extent that respondent relies upon Property Clerk of the Police Dep’t of the City of New York v. Burnett, 22 A.D.3d 201, 801 N.Y.S.2d 592 (1st Dep’t 2005), which affirmed an administrative finding that there was no showing on the part of the Department that there was reasonable suspicion for an initial stop, such reliance is misplaced. Burnett involved an arrest report and complaint, both of which stated only that the arresting officer observed the driver in possession of controlled substances, without any facts relating to the arresting officer’s initial observations leading to the stop of the vehicle. Burnett simply requires that 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 driver’s intoxication. Property Clerk of the Police Dep’t of the City of New York v. Burnett, Index No. 04/400955, at 504/400955, at 5 (Sup. Ct. N.Y. Co., July 19, 2004), aff’d, 22 A.D.3d 201, 801 N.Y.S.2d 592. Here, the Department has done just that, establishingthrough its documentary evidence that it lawfully learned of Mr. Lord’s intoxication by pulling his vehicle over after seeing him weaving in and out of traffic and stopping at a green light in violation of the Vehicle and Traffic Law. Cf. Police Dep’t v. Henriquez, OATH Index No. 1055/06, mem dec. at 2 (Jan. 9, 2006) (arrest report stating, “At T/P/O deft. was in possession of cocaine,” was insufficient to establish reasonable suspicion that led the officers to approach and search vehicle). Therefore, I find that the Department satisfied prong one of the Krimstock Order.
To establish the second prong of the KrimstockOrder, the Department must show that it is likely to prevail at a civil forfeiture action. That is, it must prove that the subject vehicle was “used as a means of committing crime or employed in aide or in furtherance of crime . . . .” Admin. Code § 14-140[e][1] (Lexis 2007). With respect to this prong, I find the Department’s evidence established that Mr. Lord, while driving his vehicle in the vicinity of Allen and Delancy Streets, was observed stopped at a green light and weaving in and out of traffic, almost causing accidents, and that he had slurred speech, the odor of an alcoholic beverage on his breath, and trouble standing (Pet. Exs. 4a, 5, 7). This evidence supports a finding that the Department is likely to prevail at a civil forfeiture proceeding because the vehicle was used as an instrumentality of the crime of driving while intoxicated. See Police Dep’t v. Castro, OATH Index No. 2211/05, mem. dec. at 3 (July 13, 2005). That Mr. Lord refused to take a field sobriety or breathalyzer test does not change this conclusion, as breathalyzer test results are not required for conviction for driving while intoxicated or driving under the influence of alcohol. See People v. Cruz, 48 N.Y.2d 419, 428, 423 N.Y.S.2d 625, 629 (1979).