1
Police Dep't v. Torres
OATH Index No. 1412/06, mem. dec. (Mar.31, 2006)
The Department is not entitled to retain the seized vehicle as the instrumentality of a crime pending outcome of a civil forfeiture action. ALJ found that respondent aunt was an innocent owner of the vehicle and respondent nephew was not the beneficial owner.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
-against-
YASMIN TORRES, A/K/A YASMIN QUESTIL,
and HERICK VENTURA
Respondents
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MEMORANDUM DECISION
ROBERTO VELEZ, ChiefAdministrative 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. Respondent Herick Ventura is the nephew of Respondent Yasmin Torres and was the driver of the vehicle at the time it was seized. Respondent Yasmin Torres has obtained a divorce decree and is now using her maiden name, Questil(Pet.Ex.E). Ms. Questil is the registered owner of the seized 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 County of Nassau v. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003). The vehicle in issue, a 1990 Honda, voucher number B103091, was seized on January 5, 2006, in connection with Mr. Ventura’sarrest for possessing firearms, fake firearms, and ammunition(Pet.Ex.23). Following receipt of respondents' demand for a hearing on March 2, 2006, the Department scheduled a hearing for March 16, 2006 at 2:00 p.m. The matter was adjourned twice and ultimately heard on March 28, 2006. Ms. Questil appeared with counsel and contested the Department's petition. As set forth below, I conclude that the Department is not entitled to retain the vehicle.
ANALYSIS
The Department seeks to sustain its retention of the seized vehicle as the instrumentality of a crime. To do so, 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 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 of forfeiture. Krimstock Order at 3;Canavan, 1 N.Y.3d at 14445, 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 v. Kelly, 306 F.3d 40, 6970 (2d Cir. 2002); see Canavan, 1 N.Y.3d at 144 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).
The Department’s case consisted entirely of documentary evidence, which, although hearsay in nature, was properly admissible (Krimstock Order at 3), and which I find to be reliable and credible. The Department's evidence showed that on January 5, 2006, Mr. Ventura, a twenty-year-old male, was observed making an illegal u-turn and was stopped by Police Officer Sullivan. The police officer then observed a bulge in Mr. Ventura’s jacket pocket and observed a bulge on the passenger of the vehicle(Pet. Exs. 1, 2, 3, 4). The police officer then searched Mr. Ventura, the passengers and the vehicle and discovered the following: one .38 caliber revolver, two air pistols, a silver knife, a pry bar, a roll of duct tape, a mask, a bandana, and gloves (Pet.Ex.2). Mr. Ventura was subsequently charged with criminal possession of a loaded firearm in the third degree; criminal possession of a weapon in the fourth degree; unlawful sale, possession or use of an imitation revolver; and possession of ammunition (Pet.Ex.3).
With respect to the first element of the Krimstock order, I find that the documentary evidence submitted by the Department clearly established probable cause for Mr. Ventura’s arrest. The same evidence also satisfactorily established the Department’s likelihood of success in a subsequent civil forfeiture action on the basis that Mr. Ventura used the seized vehicle as the instrumentality of a crime, which establishes the second element. SeePolice Dep't v. Rice, OATH Index No. 1709/05, mem. dec. at 7-8 (Apr. 21, 2005) (possession of drugs and weapons in vehicle renders vehicle instrumentality of the crime of transporting drugs and weapons).
As to the third element or the necessity to retain the vehicle pending the forfeiture action, we have held that where the return of the vehicle to the respondent would pose a heightened risk to the public safety, such risk satisfies this element. See, e.g., Police Dep't v. McFarland, OATH Index No. 1124/04, mem. dec. at 2, citing Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86. We have held that such a heightened risk might be evidenced, for instance, by the circumstances of the crime itself (e.g., Police Dep't v. Mohammed, OATH Index No. 1159/04, mem. dec. at 3-4 (Mar. 2, 2004) (vehicle used for multiple sales of illegal firearms)). If Mr. Ventura were requesting the return of the vehicle, I may have found that based on the crime charged, Mr. Ventura poseda heightened risk to the public and vehicle should be retained. However, Ms. Questil is bringing the action and is arguing for the return because she is an innocent owner.
The Department bears the burden in this preliminary hearing of demonstrating that Ms.Questil is not an innocent owner. Police Dep’t v. Persaud-Dhanraj, OATH Index No. 2080/05, mem. dec. (June 14, 2005). An innocent owner is a person who has an ownership interest in the property threatened in civil forfeiture but who neither participated in nor permitted or suffered the alleged illegal use of the property. SeePersaud-Dhanraj at 4,citingKrimstock v. Kelly, 306 F.3d at 48, n. 9. I find Ms. Questil’s testimony that she did not give Mr. Ventura permission to use the vehicle on the night in questionto be credible. The Department challenges Ms. Questil's claim of being an innocent owner by asserting that Mr. Ventura is the beneficial owner of the vehicle. Beneficial ownership refers to a situation where the vehicle's actual user is distinct from the nominal owner. See Police Dep't v. Bloise, OATH Index No. 2138/04, mem. dec. (June 17, 2004). Beneficial ownership or a possessory interest in a vehicle 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). Beneficial ownership has also been found in cases when a parent was both the titled owner and registered owner of the vehicle, so long as it has been established that the vehicle is actually in the dominion and control of the child. Kraisky, 120 A.D.2d 739, 502 N.Y.S.2d 788;Police Dep't v. Bacon, OATH Index No. 551/06, mem. dec. (Oct. 19, 2005); Police Dep't v. Bloise, OATH Index No. 2138/04, mem. dec. (June 17, 2004).
In the current case, the Department has not established that Mr. Ventura has a possessory interest in the vehicle, nor has the Department established that Mr. Ventura had dominion and control over the vehicle. Ms. Questil testified that she purchased the vehicle six years ago without assistance from Mr. Ventura and has always been the registered owner of the vehicle. (Pet.Ex.7). Mr. Ventura’s name does not appear on any documents related to the ownership of the vehicle, nor does he make loan payments on the car. Police Dep't v. Bacon, OATH Index No. 551/06, mem. dec. (Oct. 19, 2005) (The driverwas the beneficial owner of the vehicle because he made the monthly loan and insurance payments for the vehicle).
Ms. Questil testified that she is the primary user of the vehicle and she uses it on a regular basis to conduct her business as a salesperson for LaFe, Inc., a food distribution company. She uses the vehicle to meet with her clients who are store owners, and she only allows Mr. Ventura to borrow the vehicle to visit his girlfriend. On the night in question, January 4, 2006, Ms. Questil testified that she arrived home at approximately 10:00 p.m. and found Mr. Ventura in the apartment that they share. Mr. Ventura did not ask for permission to use the vehicle that night. Ms. Questil went to sleep at about 11:00 p.m. She woke up the next morning at 5 a.m. to go to work. She discovered that Mr. Ventura was not in their apartment and the vehicle was gone. She eventually discovered that the car was seized when Mr. Ventura contacted Ms. Questil. Based on Ms. Questil’s credible testimony, I find that Mr. Ventura took the vehicle without Ms. Questil’s permission and knowledge.
In support of its argument that Mr. Ventura is the beneficial owner of the vehicle, the Department argued that Ms. Questil is the registered owner of and the primary user of a Mitsubishi Montero(Pet.Ex.11). Ms. Questiltestified that her acquaintance, Benito Almonte, requested her assistance in purchasing the Mitsubishi because Ms. Questil has a better credit history than Mr. Almonte. Mr. Almonte provided the down payment and Ms. Questil signed the financing documents. The Mitsubushi was registered under her name and Mr. Almonte is now making the monthly payments. She testified that although she is the registered owner, Mr. Almonte has complete control of the Mitsubishi but allows her to borrowit at certain times. I find her testimony to be credible.
This case is distinguishable from Police Dep't v. Murray, OATH Index No. 1144/06, mem. dec. (Jan. 31, 2006), a case in which the Department established that the driver at the time of seizure was the beneficial owner of the vehicle, because, inter alia, the alleged innocent owner was the registered owner of three vehicles. In Murray, a mother and son were joint title owners of the vehicle in question, and the son was arrested for possession of a loaded firearm. The son was found to be the beneficial owner of the vehicle based on the evidence that the son used the vehicle as his primary mode of transportation, while his mother only used the vehicle when she needed it, and admitted that she normally used one of her other automobiles for commuting. In the instance case, Ms. Questil credibly testified that the vehicle in question is her primary mode of transportation, that there is only one set of keys, and that she only allows her nephew to use her vehicle in limited circumstances.
Further, Mr. Ventura has no record of prior arrests, and Ms. Questil testified that she did not give him permission to drive the vehicle on the night it was seized. There is no evidence that Ms. Questil knew or should have known that the vehicle "would be used as the instrumentality of or in furtherance of a crime," and therefore, that Ms. Questil "permitted or suffered" the illegal use of the vehicle. Property Clerk v. Pagano, 170 A.D.2d 30, 36, 573 N.Y.S.2d 658, 661 (1stDep't 1991).
The Department has failed to prove that Mr. Ventura is the beneficial owner of the vehicle or that Ms. Questil is not an innocent owner. Therefore, the Department is not entitled to retain the vehicle pending the forfeiture action.
ORDER
The Department is not entitled to retain the seized vehicle.
Roberto Velez
Chief Administrative Law Judge
March 31, 2006
APPEARANCES:
LAWRENCE V. SISTA, ESQ.
Attorney for Petitioner
ELLIOT H. FULD, ESQ.
Attorney for Respondent