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Police Dep't v. Ayala
OATH Index No. 1539/05, mem. dec. (Apr. 5, 2005)
Respondent’s motion to vacate default denied where his excuse for missing hearing was not valid and he failed to show meritorious defense.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against -
JOSE A. AYALA
Respondent
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MEMORANDUM DECISION
JOAN R. SALZMAN, 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 14-140 of the Administrative Code. The respondent is Jose A. Ayala, the owner of the seized vehicle and the driver of the vehicle at the time it was seized (Pet. Exs. 3-6). This proceeding was 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 23, 2004. 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).
Respondent’s vehicle, a 1996 Ford (Voucher No. B085348) (Pet. Exs. 1-3), was seized on November 19, 2004, following his arrest for driving while intoxicated. Respondent pleaded guilty on December 7, 2004, in New York State Supreme Court, Bronx County, to the misdemeanor of driving while intoxicated, in violation of Vehicle and Traffic Law section 1192(2), in satisfaction of criminal charges relating to his arrest on November 19, 2004, and was convicted upon the plea (Pet. Ex. 5). Upon receipt of respondent’s demand for a hearing, the Department timely scheduled a hearing at OATH for March 24, 2005.
Following the hearing held on March 24, 2005, I issued a memorandum decision in this matter on March 25, 2005, finding that respondent, who had failed to appear and on whose behalf no attorney or other representative appeared, despite proper service of notice of the hearing, had waived his right to a hearing and I declared him to be in default. In that decision, I noted that respondent could move to vacate his default as provided in section 1-45 of this tribunal's rules of practice and that he could secure a hearing, notwithstanding his default, if he could make two showings required by a long line of our precedents: (1) a reasonable excuse for failure to appear, and (2) a meritorious defense to the petition. E.g., Police Dep’t v. Robinson, OATH Index No. 868/05, mem. dec. (Dec. 28, 2004); Dep’t of Correction v. Heyward, OATH Index No. 2041/00 (July 18, 2000); Transit Auth. v. O’Connell, OATH Index No. 1076/91, mem. dec. (Nov. 8, 1991).
On March 29, 2005, respondent wrote a letter to this tribunal via fax requesting another hearing. In the letter, he stated: “unfortunately I miss the date because I move to a new address and I receive the letter one week latter of the appt. date [March 24, 2005]. I would like to make another hearing.” He included his new address and wrote further: “Included with this letter is the Name an [sic] Address of the Treatment facility that I comply regarding Drug and Alcohol Treatment requested by the New York City Police Department Legal Bureau – Civil Enforcement Unit.” The attached form was signed by respondent and notarized on February 23, 2005; it indicates that respondent has agreed that the Department could be notified of his attendance and progress in a drug or alcohol treatment program. On March 30, 2005, the Department served and filed a telecopied response to the application for a new hearing and opposed the request on the grounds that respondent had not made the two showings necessary to vacate the default because the Department had properly served the notice of hearing on respondent at the address he had supplied on his hearing demand form, and that his guilty plea and conviction preclude him under our precedents from showing a meritorious defense to the action.[1] The Department argued further that it would be a waste of judicial and city resources to grant a new hearing in these circumstances.
On the record here, I agree with the Department and deny the motion. Respondent has not made out a reasonable excuse for having failed to appear, and has not demonstrated a meritorious defense to the petition.
Respondent claims, in effect, that because he moved, he did not actually receive the notice of hearing in advance of the hearing date. However, he has supplied no written proof of a change of address, such as a postal change of address notice. Moreover, the Department’s service of the notice of the hearing was appropriate in that the Department served the notice in a timely fashion on the very address in the Bronx that respondent himself supplied in his demand for the hearing, which the Department received on March 10, 2005, only two weeks prior to the hearing (Pet. Ex. 1). That is the legally proper address for the Department to have used under the Krimstock Order, at paragraph 3 (Department must notify claimant “of the date of the hearing in a notice to be sent by mail within two business days after receipt of the written demand for a hearing, to the addresses specified for such notice by the claimant . . . .”) (emphasis supplied). Respondent supplied to the Department the same address the Department used to notify him of the hearing in accordance with law. If respondent was going to move within two weeks, he could have noted that fact on the form. The same address he gave the Department is the one on file with the Department of Motor Vehicles as the address of the registered owner and holder of title to the vehicle at issue here (Pet. Ex. 6). Finally, the address, also in the Bronx, that respondent calls “new” in his March 29 letter is not in fact new, in that it is among the addresses he has used previously, as reflected in the computerized record of the New York State Division of Criminal Justice Services, his “rap sheet” (Pet. Ex. 5).
Because respondent provided, within two weeks before the hearing, the very address to which the Department mailed the notice of the hearing, the notice was “reasonably calculated, under all the circumstances, to apprise [respondent] of the pendency of the action and afford [him] an opportunity to present [his] objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950); Police Dep’t v. Rodriguez, OATH Index No. 1199/05, mem. dec. at 1-2, n. 1 (Feb. 1, 2005).
Respondent could have notified the Department of his intention to use a different address, but he did not. On this record, the excuse proffered, while barely plausible, is not a reasonable one. See Police Dep’t v. Rodriguez, OATH Index No. 1199/05, mem. dec. (Feb. 16, 2005) (unsupported claim by pro se respondent that he missed a hearing due to a “delay in Amtrak service” rejected and motion to vacate default denied).
Respondent has also failed to show that he has a meritorious defense to the petition. The Department had the burden of proving three points 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 the Department will prevail in a civil action for forfeiture of the vehicle; and (iii) that it is necessary that the vehicle remain impounded to ensure its availability for a judgment in a civil forfeiture action. County of Nassau v. Canavan, 1 N.Y.3d at 144-46, 770 N.Y.S.2d at 286; Krimstock Order ¶ 2. Here, 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, 69, 70 (2d Cir. 2002).
Respondent’s burden on this motion is not to produce “‘a fully proved defense, but only a legally viable, factually substantial defense’ to the petition.” Police Dep’t v. Rivera, OATH Index No. 1272/04, mem. dec. at 2 (Apr. 19, 2004) (citing O’Connell, OATH Index No. 1076/91, mem. dec. at 6). Respondent argues that he should have his car returned solely because he has begun an alcohol treatment program. However, this is not a viable defense here. The conviction upon his guilty plea of driving while intoxicated, combined with the undisputed fact that the Ford seized was the instrumentality of that crime, indicates that the Department has satisfied its burden of proof on the first two points of the Krimstock Order. See Police Dep’t v. Busgit, OATH Index No. 1616/05, mem. dec. (Apr. 4, 2005); Berman v. Turecki, 885 F. Supp. 528, 533 (S.D.N.Y. 1995), aff’d without op., 1996 U.S. App. LEXIS 3026 (2d Cir. 1996) (“A guilty plea ‘disposes of any issue pertaining to the constitutionality of [party’s] arrest, interrogation, search and prosecution’”; citations omitted); Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. at 2 (Feb. 24, 2004) (first two Krimstock prongs proved because “criminal conviction precludes challenge to the basis for the arrest as well as to the merits of the criminal charge itself,” and use of vehicle as instrumentality of crime was undisputed; citations omitted).
A “defendant who pleads guilty to a criminal charge is collaterally estopped from re-litigating, in a subsequent civil action, the facts upon which the conviction is based,” Property Clerk, New York City Police Dep’t v. McFarland, Index No. 400685/2003 (Sup. Ct. N. Y. Co. Apr, 20, 2004) (“McFarland II”), at 2 (citing S.T. Grand, Inc. v. City of New York, 32 N.Y.2d 300, 344 N.Y.S.2d 938 (1973), and Grayes v. DiStasio, 166 A.D.2d 261, 262-63, 560 N.Y.S.2d 636, 637 (1st Dep’t 1990)).[2]
As to the third prong of Krimstock, even if respondent could show that he no longer presents a heightened risk to the public safety because he entered an alcohol or drug treatment program -- and he has fallen short of doing so, given that he was arrested after swerving his Ford to avoid a lamp post on the sidewalk, then reversed gear and drove against traffic on November 19, 2004, and was then arrested again, on January 20, 2005, for attempted criminal possession of marijuana in a public place -- proof of the risk of loss, sale, or destruction of the vehicle, where the respondent has pleaded guilty to the crime of driving while intoxicated, is sufficient to satisfy the third prong of the Krimstock Order. See Busgit, OATH Index No. 1616/05, mem. dec. at 4; Police Dep’t v. Pierre-Louis, OATH Index No. 1452/04, mem. dec. (Mar. 24, 2004) (even absent a threat to the public safety, the Department is entitled to retain the vehicle if such retention is necessary to preserve the vehicle from sale, loss or destruction). Respondent’s conviction, as in Pierre-Louis, “and the likelihood that the Department will succeed in the civil forfeiture action, create an unacceptable ‘risk that the respondent will sell or otherwise dispose of the vehicle in an attempt to defeat a judgment of forfeiture.’” Id. at 3-4 (citing McFarland, OATH Index No. 1124/04, mem. dec. at 5); see also Police Dep’t v. O’Berry, OATH Index No. 1474/04, mem. dec. at 2-3 (Mar. 15, 2004).
As noted in Police Dep’t v. Bruno, OATH Index No. 1304/04, mem. dec. at 4 (Apr. 8, 2004), “[a] respondent who has no defense to the petition is not entitled to burden the Department or this tribunal with a retrial, regardless of the quality of his excuse for missing the first trial. Our system of justice does not require us, at least in this context, to hold a hearing that would serve no purpose.”
ORDER
For the foregoing reasons, the motion to vacate the default is denied.
Joan R. Salzman
Administrative Law Judge
April 5, 2005
APPEARANCES:
KRISTY PISZCKIEWICZ, ESQ.
Attorney for Petitioner
Mr. Jose A. Ayala
Respondent
[1] The respondent’s letter motion and the Department’s letter opposing the motion are hereby incorporated into the record of this proceeding.
[2] The Department commenced a civil forfeiture action with respect to the vehicle at issue here on March 15, 2005, in the Supreme Court of the State of New York, County of New York (Pet. Ex. 7). That matter is pending.