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Police Dep't v. Mendez
OATH Index No. 1771/08, mem. dec. (Mar. 4, 2008)
Petitioner’s proof as to innocent ownership of sister of arrested driver failed to establish right to retain custody of seized vehicle. Vehicle ordered to be released.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against -
KEILA MENDEZ
Respondent
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MEMORANDUM DECISION
JOHN B. SPOONER, 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. Respondent Keila Mendez, is the registered owner of the vehicle. Enrique Ortiz, her brother, was the 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), as amended December 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 vehicle is a 2000 Honda Odyssey minivan, property clerk voucher No. B152593. It was seized by the Department on January 20, 2006, following the arrest of Mr. Ortiz, Rolando Estrada, and others on charges of criminal possession of a weapon and third degree menacing (Pet. Exs. 1, 3, 7, 9). Following receipt of the respondent’s demand for a hearing on February 15, 2008, the Department scheduled a hearing for February 28, 2008. At the hearing, respondent appeared, represented by counsel, and contended that petitioner lacked authority to retain the car. For the reasons set forth below, I conclude that petitioner failed to establish its right to retain custody of the vehicle and that the vehicle must 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: (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 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”).
The documentary evidence supplied by petitioner is sufficient to establish the first and third prongs of Krimstock (Pet. Exs. 1, 2, 3, 5). Respondents did not dispute these prongs. They claimed, however, that Ms. Mendez is an innocent owner because, in permitting Mr. Ortiz to use the vehicle, she had no knowledge that a crime would be committed.
Where the issue of innocent ownership is raised by an owner who was not the individual arrested at the time of the seizure, the Department bears the burden of showing that this owner is not an innocent owner entitled to the return of the vehicle. See Property Clerk, New York City Police Dep’t v. Pagano, 170 A.D.2d 30, 34-35, 573 N.Y.S.2d 658, 661 (1st Dep’t 1991). This rule regarding proof of innocent ownership is founded upon the Administrative Code provision that prohibits claimant-owners who permit their property to be used to commit a crime from reclaiming such property. Admin. Code § 14-140(e); see also Krimstock, 306 F.3d at 48, n.9. To establish a basis for determining which owners are innocent, courts have concluded that a statute, such as Administrative Code section 14-140, that holds a person liable for having permitted or suffered a certain activity may only be enforced against one who “knew, or should have known, that the activity would take place.” Pagano, 170 A.D.2d at 35, 573 N.Y.S.2d at 661.
Ms. Mendez testified that she lives with her husband, their five children, and three or four of her minor siblings on Buffalo Avenue in Patterson, New Jersey. She purchased the seized vehicle, a minivan, in 2005 with money she had saved from her income tax refunds. It was used as transportation for her children and siblings, for whose care she is responsible. The vehicle, which was the family’s only car, was insured and titled in her name alone (Resp. Exs. A, B, C). In January 2006, when the car was seized, Ms. Mendez worked in a clothing store; her husband worked as assistant manager of a supermarket.
Mr. Ortiz, Ms. Mendez’s brother, testified that, at the time of the seizure, he lived by himself on Albion Avenue in Patterson. He was employed then and now as a mechanic’s assistant in a body shop. In 2001, Mr. Ortiz pleaded guilty to possession of marijuana. He testified that he no longer uses marijuana. Mr. Ortiz stated that his driver’s license had been revoked “on and off” since 2003. No evidence was offered as to the reason for the revocation. He stated that, at the time of the January 2006 car seizure, he was a licensed driver.
On the late afternoon of January 19, 2006, Mr. Ortiz came to Ms. Mendez’s house on Buffalo Avenue to ask to borrow the van. He was alone. Mr. Ortiz told his sister that he was going out, but did not say exactly where he was going. He said that he would return the minivan before Ms. Mendez had to go work the next morning.
At 10:00 or 11:00 p.m. that night, Mr. Ortiz went to his sister’s house, again by himself, to get the van. He called some friends and arranged to pick several of them up at a liquor store. They continued to a bar where they met others. The party consisted of Alexander Vargas; “Rosie”; “Tito”; Richard Garcia; and Rolando Estrada. Mr. Ortiz testified that he “grew up together” with Alexander and that he was friends with Rosie. Mr. Ortiz testified that he did not know Estrada personally, and that Estrada came along with the group because he knew Rosie.
Mr. Ortiz drove the group into Manhattan to go to the Copacabana night club. They parked in a McDonald’s parking lot near the club. When they left the Copacabana, the group reassembled at the McDonald’s for the drive back to Patterson. At 3:21 a.m., the police stopped the van, driven by Mr. Ortiz, at the corner of 34th Street and Tenth Avenue in Manhattan and arrested Mr. Ortiz, Mr. Estrada, Mr. Garcia, and Mr. Vargas for criminal possession of a weapon (Pet. Exs. 2, 3). According to the arrest report (Pet. Ex. 1) and the Criminal Court affidavit of the arresting officer (Pet. Ex. 3), a man contacted the police and alleged that Mr. Estrada had pointed a pistol at him before getting into the passenger seat of the van and driving off. The arresting officer found a gun in the engine area of the van (Pet. Ex. 3). Although the charges against Mr. Ortiz were later dropped, Mr. Estrada was convicted of criminal possession of a weapon in the third degree for his part in the events of that night (Pet. Ex. 5).
Ms. Mendez stated that, when she gave permission to Mr. Ortiz to drive the vehicle, she was aware that her brother had been arrested and convicted in 2001 for some type of offense. Mr. Ortiz was not living with her at the time of his 2001 arrest. Ms. Mendez stated that he had been charged with “possession,” but seemed unclear as to exactly what illegal substance he had possessed. Ms. Mendez was aware that Mr. Ortiz’s license had been revoked previously and had recently been reinstated. She indicated that she had never loaned him the vehicle before the January 2006 incident.
This undisputed evidence provided no basis to conclude that Ms. Mendez was anything other than an innocent owner. As past cases of this tribunal have held, the mere knowledge that a family member has a criminal record does not provide reason to anticipate that he or she would use a vehicle to commit further crimes. See Police Dep't v. Reid, OATH Index No. 853/07, mem. dec. at 4 (Dec. 19, 2006) (vehicle owner’s knowledge of adult son’s prior arrest for assault did not establish that respondent should have known that her son would use her car to commit an armed robbery); Police Dep't v. Perez, OATH Index No. 2422/07, mem. dec. at 3-4 (July 27, 2007) (vehicle owner’s knowledge of brother-in-law’s prior drug and weapons offenses did not establish she could have foreseen that brother-in-law might commit a crime using her car); Police Dep’t v. Plaskett, OATH Index No. 463/06, mem. dec. at 4 (Sept. 8, 2005), aff’d, 40 A.D.3d 231, 833 N.Y.S.2d 385 (1st Dep’t 2007) (mother’s knowledge of son’s prior conviction for a crime which was not shown to involve a vehicle held insufficient to establish that the mother was not an innocent owner). Where, as here, the 2001 drug offense committed by Mr. Ortiz did not involve use of a vehicle, his criminal record was insufficient to demonstrate that Ms. Mendez was not an innocent owner.
Moreover, Ms. Mendez’s awareness that Mr. Ortiz’s driver’s license had previously been revoked for unexplained reasons provided no reason to anticipate that the vehicle would be used to commit a crime, particularly since it was undisputed that, at the time Ms. Mendez loaned him the van, he was a licensed driver. See Pagano, 170 A.D.2d at 36, 573 N.Y.S.2d at 661 (father was innocent owner despite previous suspension of driver son’s license).
Finally, I note that petitioner’s counsel argued that Mr. Ortiz was aware that Mr. Estrada had a gun that night, and that he must have helped Mr. Estrada hide the weapon in the engine of the van. Even assuming Mr. Ortiz abetted Mr. Estrada, the fact remains that all charges against him were dismissed. More importantly, Mr. Ortiz’s actions at the time of the arrest were not relevant to the controlling issue here, which was not the culpability of Mr. Ortiz with regard to helping Mr. Estrada conceal the weapon, but whether Ms. Mendez was an innocent owner.
In this case, the Department bears the burden of proving that Ms. Mendez was not an innocent owner, since the purpose of the forfeiture provision is to punish wrongdoers, not innocent parties. See Pagano, 170 A.D.2d at 35, 573 N.Y.S.2d at 660 (“the purpose of the statute [is] to permit petitioner to retain the property of criminal wrongdoers.”). The Department has not met that burden. In sum, because petitioner has failed to establish that Ms. Mendez was not an innocent owner, the vehicle must be returned to her.
ORDER
The Department has failed to satisfy its burden of proof under the Krimstock Order and the vehicle should be returned to the owner.
John B. Spooner
Administrative Law Judge
March 4, 2008
APPEARANCES:
LAWRENCE V. SISTA, ESQ.
Attorney for Petitioner
RAMON W. PAGAN, ESQ.
Attorney for Respondent