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Police Dep’t v. Alegrias

OATH Index No. 178/08, mem. dec. (July 31, 2007)

Petitioner failed to prove its likelihood of success at a civil forfeiture proceeding. The Department is ordered to release the vehicle.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

JULIET ALEGRIAS

Respondent

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MEMORANDUM DECISION

JULIO RODRIGUEZ, Administrative Law Judge

Petitioner 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, Juliet Alegrias, the titled owner, was driving the vehicle when it was seized. 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 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 2002 Honda Accord at issue, property clerk voucher number B136975V, was seized by the Department on September 27, 2006, pursuant to respondent’s, and Rinaldy Concepcion’s, respondent’s boyfriend, arrest for two counts of criminal possession of a loaded firearm and criminal possession of marijuana in violation of Penal Law sections 265.03(2), 265.02(4) and 221.10(1).

Respondent appeared at the hearing on July 26, 2007, with counsel. She argued that the Department failed to establish each of the three prongs under the Krimstock Order.

Based on the reasons discussed below, I find that the Department failed to demonstrate that it is likely to succeed at the subsequent forfeiture action. Therefore, I conclude that the Department is not 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 that: (i) probable cause existed for the arrest pursuant to which the vehicle was seized; (ii) it is likely that the Department will prevail in a civil action for forfeiture of the vehicle; and (iii) 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 Department’s and respondent’s version of events on September 27, 2006 vary significantly. They both agree that respondent was driving her 2002 Honda Accord,[1] in which Rinaldy Concepcion, her boyfriend, was a passenger, when they were stopped and arrested. They also agree that police officers recovered marijuana and a loaded gun. The remaining details are in dispute.

The Department’s evidence consisted entirely documents: an arrest report, a police officer’s complaint report, a criminal court complaint, and criminal history reports for respondent and Rinaldy Concepcion (Pet. Exs. 1, 2, 3, 5a & 5b). No police officers testified. According to the Department’s documentary evidence, on September 27, 2006, respondent was driving her 2002 Honda Accord when she, and Rinaldy Concepcion, were pulled over for going through a

red light (Pet. Exs. 1 & 3). The unsigned criminal court complaint reads that the arresting officer “recovered a marijuana cigarette from the [car’s] center console” and a loaded gun from the car (Pet. Ex. 3).

Respondent testified and provided a more detailed account, which at times contradicted the Department’s documentary evidence. She testified that on September 27, 2006, she and her boyfriend were on their way to the store when they were pulled over. She denied going through a red light and stated that she was pulled over after Concepcion, who was in the front passenger seat, made an obscene gesture with his middle finger to a cab-driver who turned out to be an undercover police officer. According to respondent, the police searched her and her boyfriend and recovered marijuana from her boyfriend’s pocket. After they recovered the marijuana, a police officer searched the back seat of respondent’s car and yelled “bingo.” Respondent testified that she was arrested and taken to a holding cell where she was informed that a loaded gun was recovered from inside a backpack in the back seat of the car. Respondent testified that the backpack belonged to her boyfriend, that he placed it in the back seat when he entered the car, and that she did not know that he had a gun in the backpack.

The ensuing criminal prosecutions ended with Concepcion pleading guilty to attempted criminal possession of a loaded firearm, a class E felony, and respondent pleading guilty to disorderly conduct, a violation. Initially, the issue before me is what, if any, effect does respondent’s guilty plea to disorderly conduct have in this proceeding.

This tribunal has repeatedly held that a criminal conviction may preclude any challenges to the lawfulness of the arrest as well as the merits of the criminal charge. Police Dep’t v. Arnold, OATH Index No. 377/07, mem. dec. at 3 (Aug. 22, 2006), citing Police Dep’t v. Balseca, OATH Index No. 103/07, mem. dec. at 3 (July 25, 2006) (conviction for weapons possession). Those cases are based upon principles of collateral estoppel. See, e.g., Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. at 2 (Feb. 24, 2004).

However, as the tribunal in Arnold pointed out, the doctrine of collateral estoppel is not without limits. In Gilberg v. Barbieri, 53 N.Y.2d 285, 294, 441 N.Y.S.2d 49, 52 (1981), the Court held that conviction for harassment could not be used to preclude the defendant from disputing the merits of a civil suit for assault. The Court emphasized that collateral estoppel is a “flexible doctrine which can never be rigidly or mechanically applied.” Arnold, at 3, citing Gilberg, 53 N.Y.2d at 292, 441 N.Y.S.2d at 51. Minor suits involving non-criminal offenses “are illustrative of the type of determination which, under accepted common-law principles, should not be held conclusive in later cases” because such matters are not fully litigated. Gilberg, 53 N.Y.2d at 293, 441 N.Y.S.2d at 52. See, e.g., Taxi and Limousine Comm’n v. Martinez, OATH Index No. 1183/07, mem. dec. (Apr. 11, 2007). Application of the collateral estoppel doctrine requires an inquiry into the nature of the prior litigation, including whether the matter was fully litigated.

The general principle of collateral estoppel is that "a fact decided in an earlier suit is conclusively established between . . . [the] parties and their privies, provided it was necessary to the result in the first suit." Brazzell v. Adam, 493 F.2d 489, 490 (5th Cir. 1974), citing Tomlinson v. Lefkowitz, 334 F.2d 262, 264 (5th Cir. 1964).

Here, it is questionable what, if any, preclusive effect should be given to respondent’s guilty plea to disorderly conduct, a non-criminal disposition. Respondent did not plead guilty to going through a red light, or unlawful possession of loaded gun or marijuana. Instead, she pled guilty to a violation in exchange for a sentence of conditional discharge. This disposition sheds little, if any, light upon the lawfulness of the police action in stopping and searching the car, the circumstances of which are now in dispute. The Department further contends that marijuana was recovered from the car’s center console. Respondent admits that marijuana was recovered, but claims that it was recovered from Concepcion’s pocket, not the center console. As discussed below, the location from which the marijuana was recovered is critical in this analysis.

Even assuming that respondent’s guilty plea to disorderly conduct waived her right to challenge the probable cause for the arrest and search of the car that led to its seizure, the Department failed to establish the second prong of the Krimstock Order. Under the second prong petitioner must prove that it is more likely than not that respondent’s vehicle was used in furtherance of, or as the instrumentality of, a crime. Krimstock Order, at 3; Admin. Code § 14-140. Disorderly conduct is a violation, rather than a misdemeanor or a felony. Thus, it is not a crime, and cannot be the basis on which to forfeit respondent’s car. Therefore, the Department had to establish that it is more likely than not that respondent’s vehicle was used in furtherance of, or as the instrumentality of, the crime of criminal possession of a loaded firearm or criminal possession of marijuana.

The forfeiture provision states that anyone who used property to commit a crime “or permitted or suffered the same to be used . . . shall not be deemed to be a lawful claimant to any such . . . property.” Admin. Code § 14-140(e); see also Krimstock, 306 F.3d at 48, n.9. A statute 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.” See Property Clerk, New York City Police Dep't v. Pagano, 170 A.D.2d 30, 35, 573 N.Y.S.2d 658, 661 (1st Dep't 1991). The purpose of the law is to punish wrongdoers, not innocent parties. Here the Department had to show that respondent “permitted or suffered” the illegal use of her car; that she knew, or should have known, that her car would be used in furtherance of the crime of criminal possession of a loaded firearm or criminal possession of marijuana.

Respondent testified that the police recovered a loaded gun from inside her car. However, she explained that the gun was recovered from inside a backpack that Concepcion carried into the car and placed in the back seat. She steadfastly denied knowing that Concepcion had a loaded gun in the backpack. Respondent points out that she pled guilty to disorderly conduct, a relatively low-level non-criminal offense, not to criminal possession of a loaded gun or marijuana. She argued that Concepcion’s guilty plea to attempted criminal possession of a loaded firearm corroborates her testimony. The Department did not challenge respondent’s claim of ignorance. If the Department has evidence to contradict respondent’s professed lack of knowledge, it opted not present such proof here. The disposition of the criminal matter against respondent, by way of guilty plea to disorderly conduct, by the prosecutor, with the consent of a criminal court judge, lends credibility to respondent’s testimony. Therefore, I find, on this record, that the Department failed to establish that it is more likely than not that respondent knowingly used or permitted her vehicle to be used in furtherance of, or as the instrumentality of, the crime of criminal possession of a loaded firearm. Now I will turn to the evidence regarding the charge of criminal possession of marijuana.

There is no dispute that the police officers recovered marijuana. The issue is where the marijuana was recovered from. If the marijuana was recovered from Concepcion’s pocket, as respondent testified, its possession would constitute unlawful possession of marijuana in violation of Penal Law section 221.05, a non-criminal offense, which cannot be the basis on which to forfeit respondent’s car. See Admin. Code § 14-140. For the Department to succeed, it would have to establish the crime of criminal possession of marijuana: that the aggregate weight of the marijuana exceeded 25 grams, Penal Law section 221.10(2), or that the marijuana was burning or open to public view, Penal Law section 221.10(1). Here, even if I credit the Department’s documentary evidence over respondent’s testimony, the Department nonetheless failed to meet its burden. The police complaint report and the criminal court complaint are the only documents that mention the recovery of marijuana. The police complaint report reads only that defendant was in “possession of marijuana” (Pet. Ex. 2) and the criminal court complaint reads that the officer “recovered a marijuana cigarette from the center console of [respondent’s] vehicle” (Pet. Ex. 3). The documents are silent as to whether the marijuana cigarette was burning or open to public view when it was recovered from the console, a necessary element in proving criminal possession of marijuana. Presumably, the Department will present stronger evidence regarding the recovery of the marijuana at a subsequent forfeiture proceeding. However, the lack of evidence in the Department’s case at this stage is fatal.

Having concluded that the Department failed to satisfy its burden under the second prong of the Krimstock Order, I need not analyze the third prong.

ORDER

The Department is directed to release respondent’s vehicle forthwith.

Julio Rodriguez

Administrative Law Judge

July 31, 2007

APPEARANCES:

SGT. LAWRENCE V. SISTA, ESQ.

Attorney for Petitioner

DERGARABEDIAN & DILLION

Attorney for Respondent

BY: MICHAEL SEPE, ESQ.

[1] Respondent and her mother, Nubia Urrea, are the named owners on the car’s title (Pet. Ex. 6 & 8) and Nubia Urrea appears as the registered owner of the car (Pet. Ex. 6). Respondent and her mother testified that respondent is the actual owner of the car and that she pays for the car’s upkeep, including finance and insurance payments.