Police Dep't v. Castro
OATH Index No. 2211/05, mem. dec. (July 13, 2005)
Police Department is entitled to retain respondent's vehicle pending outcome of civil forfeiture action.
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NEW YORK CITY OFFICE OF
-1-
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against -
JOSE CASTRO
Respondent
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MEMORANDUM DECISION
ROBERTO VELEZ, Chief Administrative Law Judge
The petitioner, the Police Department ("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, Jose Castro, is the registered owner of the seized vehicle and was the driver of the vehicle at the time that 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); see County of Nassau v. Canavan, 1 N.Y.2d 134, 770 N.Y.S.2d 277 (2003).
The vehicle in issue, a 1990 Nissan Maxima (property clerk voucher B094340), was seized by the Department on May 29, 2005 in connection with the respondent's arrest for (a) driving while intoxicated; (b) driving with blood alcohol level over 0.08%, (c) vehicular assault causing serious personal injuries to a pedestrian, and (d) leaving the scene of the accident. Following receipt of the respondent's demand for a hearing on June 17, 2005, the Department scheduled the instant proceeding for July 1, 2005. On July 1, 2005, the proceeding was adjourned due to respondent’s difficulty with English language and unavailability of a Spanish interpreter. Hearing was rescheduled for July 8, 2005, at which the respondent appeared pro se with assistance of a sworn interpreter, Nicholas Woloschuk.
As set forth below, I conclude that the Department is entitled to retain the vehicle.
ANALYSIS
In the instant proceeding, 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), cert. den., 539 U.S. 969, 123 S.Ct. 2640 (2003); 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"). Here, the Department seeks to sustain its retention of the seized vehicle as the instrumentality of a crime. Therefore, the Department bears the burden of establishing 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. Krimistock v. Kelly, amended order and judgment at 3; Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286.
The Department presented evidence in support of the first two of these prongs by allegations in the arrest report (Pet. Ex. 5).
With respect to the first prong, the evidence showed that at approximately 12:53 a.m. on May 29, 2005, respondent’s car was observed striking and hitting a pedestrian, as he was crossing the street (Pet. Ex. 5). Subsequently, respondent left the scene of the accident without attending to a seriously injured pedestrian. A complaint was radioed to patrol on duty, resulting in police canvassing of the area (Pet. Ex. 5). Respondent's vehicle was stopped five blocks from the scene of the accident, where the arresting officer observed respondent’ bloodshot watery eyes and detected a strong odor of alcohol on his breath. A breathalyzer test was administered, which revealed blood alcohol level of 0.11%. The following day, the article published in the Daily News reported the details of this accident, which include eyewitness testimony and the description of the Nissan Maxima (Pet. Ex. 7). Nicole Bode and Tony Sclafani, Man Clinging to Life in Qns. Hit-Run, New York Daily News, May 30, 2005. The car was described as a “souped-up,” maroon, chrome plated Nissan Maxima with the phrase “Keep it Low” airbrushed in red on the back windshield. Id. When the car was stopped five blocks away from the scene of the accident, it had a smashed front windshield and a side mirror dangling from its side. Id. Taking into consideration the Nissan’s highly identifiable appearance and its damaged condition, I find that the Department established probable cause for the stop of the respondent’s car and his subsequent arrest.
In reference to the second prong, respondent was charged pursuant to Vehicle and Traffic Law section 1192 entitled "Operating a motor vehicle while under the influence of alcohol or drugs" which provides:
2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section 1194 of this article.
3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
Respondent was charged with driving while intoxicated per se and common law intoxication. In order to show that respondent was driving while intoxicated per se three elements must be satisfied: (1) operation of a motor vehicle; (2) in a public place; (3) a chemical test indicating that a defendant had 0.08% or more of alcohol in his blood. Operation of a motor vehicle is established when, in the vehicle, “defendant intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle.” Dalton v. Ashcroft, 257 F.3d 200, 207-08 (2d Cir. 2001); People v. Alamo, 34 N.Y.2d 453, 358 N.Y.S.2d 375 (1974). Here, respondent was stopped by a police officer while he was driving the car at issue in this proceeding. This is a prima facie proof of respondent’s operation of a motor vehicle. The public-place element is met where the motor vehicle is operated on public highways, private roads open to motor vehicles, parking lots, and areas adjoining highways. People v. Haszinger, 149 Misc.2d 856, 567 N.Y.S.2d 575 (Dist. Ct. Nassau Co. 1991). Here, respondent hit a pedestrian on the corner of Northern Boulevard and 98th Street, and was apprehended on the corner of 103rd Street and 37th Avenue. Either of these roadways is visibly a public-place, within its statutory definition.
Third element is the result of the chemical test above 0.08% of blood alcohol level. The result of the test is conclusive provided that the test was administered on reasonable grounds, with belief that a person violated section 1192. In addition, the test must be performed within two hours of the arrest or the stop. Reasonable grounds for the test shall be reached on the totality of circumstances surrounding the incident and could be found with indicia such as observation of VTL violations, impaired speech, instability, detection of alcohol on the motorist breath, seeing motorist stagger, and observing motorist’s glazed eyes. Boyle v. Tofany, 36 N.Y.2d 1012, 374 N.Y.S.2d 613 (1975); People v Poje, 270 A.D.2d 649, 706 N.Y.S.2d 733 (3d Dep’t 2000); Gagliardi v. Dep’t of Motor Vehicles, 144 A.D.2d 882, 535 N.Y.S.2d 203 (3d Dep’t 1988). Here, respondent was stopped per reported “hit and run” and the arresting officer observed that respondent appeared intoxicated with a strong odor of alcohol on his breath and bloodshot watery eyes (Pet. Ex. 5). The breathalyzer test was administered upon arrival at the 112th precinct revealing respondent’s blood alcohol level to be 0.11%. The actual time of the test is unknown, however the results should still be admissible for the purpose of this hearing. People v. Smith, 191 Misc. 2d 553, 742 N.Y.S.2d 792 (Ct. of Claims N.Y. 2002) (chemical test administered after two hours may be admissible in civil action). Considering that the evidence is conclusive to establish the third prong of section 1192(2), the Department proffered sufficient evidence to find respondent in violation of section 1192(2) and possibly of section 1192(3).
Therefore, I find that the Department established a likelihood that the Department will prevail in a civil forfeiture action regarding the seized vehicle.
Regarding the third point, the Department is entitled to retain the vehicle, pending final outcome of the civil forfeiture action, upon proof that retention is necessary to preserve the vehicle from loss, sale or destruction, or that retention is necessary to protect the public from further drunk driving by the respondent. See Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86.
Respondent was charged pursuant to Penal Law section 120.03 entitled "Vehicular assault in the second degree” and Vehicle and Traffic Law section 600 entitled “Leaving the scene of the accident without reporting.” The Department introduced sufficient evidence to show that respondent struck a pedestrian, causing serious injury and fled the scene of the accident. At the instant hearing respondent did not deny or object to these allegations.
This tribunal has held that the "necessity to retain" prong is not merely duplicative of the prior two elements – that is, the Department must prove more than the fact that the seized vehicle was the instrumentality of a crime. Instead, the Department must prove the existence of a heightened risk to the public safety, or the preservation of the seized vehicle, to justify retention of the vehicle pending outcome of the forfeiture action. Police Dep't v. McFarland, OATH Index No. 1124/04, mem. dec. (Feb. 24, 2004).
Here, the Department argued that respondent’s gross disregard for safety of others and cavalier conduct in response to the accident indicated a strong possibility of a heightened risk to public safety. The fact that respondent hit a pedestrian and left the scene of the accident shows respondent’s neglect for his moral, social and legal obligations. Respondent’s inability to grasp basic social rudiments strongly suggests that returning the vehicle to him heightens the risk to public safety.
Based on this evidence, I find that the Department established that retention of the vehicle is necessary to protect the public safety.
ORDER
The Department is entitled to retain respondent's vehicle pending the outcome of a civil forfeiture action.
ROBERTO VELEZ
Chief Administrative Law Judge
July 13, 2005
APPEARANCES:
RALPH LEONART, ESQ.
Attorney for Petitioner
JOSE CASTRO
Pro Se Respondent