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Police Dep't v. Longmore

OATH Index No. 1542/07, mem. dec. (Mar. 30, 2007)

Petitioner may retain seized vehicle pending outcome of a civil forfeiture action. Respondent is the vehicle’s reg-istered owner. Evidence did not support his mother’s claim that she is an innocent owner.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

JERMAYNE LONGMORE

Respondent

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MEMORANDUM DECISION

KEVIN F. CASEY, Administrative Law Judge

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. Jermayne Longmore is the registered owner of the vehicle (Pet. Ex. 6). This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), second amended order and judgment (S.D.N.Y. Dec. 6, 2005) (Krimstock Order); see County of Nassau v. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003).

On September 26, 2006, petitioner seized respondent’s vehicle, a 1996 Nissan Maxima, following his arrest for criminal possession of a loaded firearm and possession of two forged instruments. Petitioner received a demand for a hearing on February 23, 2007, and scheduled a hearing at this tribunal for March 8, 2007. At respondent’s request, the matter was adjourned and the hearing was held on March 22, 2007. Respondent signed a power of attorney authorizing his mother, Sharon Longmore, to appear on his behalf. At the hearing, petitioner relied upon documentary evidence. Although respondent’s counsel appeared, neither respondent nor his mother attended the hearing. The record was left open to give the parties an opportunity to present additional evidence. Upon receipt of additional documents from the parties, the record was closed on March 29, 2007.

For the reasons below, I conclude that petitioner is entitled to retain the vehicle.

ANALYSIS

Petitioner seeks to retain the vehicle as the instrumentality of a crime. To prevail, it must prove by a preponderance of the evidence that: (i) probable cause existed for the arrest that resulted in the seizure of the vehicle; (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 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. 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, 70 (2d Cir. 2002); see Canavan, 1 N.Y.3d at 144 n.3, 770 N.Y.S.2d at 286 n.3.

As a preliminary matter, respondent’s counsel suggested petitioner failed to prove that respondent was given timely notice of his right to a hearing. Respondent requested the hearing, so he was apparently apprised of his right to do so. It is unclear, however, when he was first advised of that right. Notably, in respondent’s affidavit, received in evidence, he never alleged that notice was untimely. Under these circumstances, where the driver-owner offers evidence on other matters and never alleges any defect in notice, I cannot conclude that notice was untimely. Cf. Police Dep’t v. Caban, OATH Index No. 107/07, mem. dec. (July 14, 2006) (motion to dismiss granted, in part, because respondent testified that he was not given proper notice of his right to a hearing).

Turning to the merits, petitioner satisfied all three prongs of Krimstock. According to the arrest report, respondent was parked in a crosswalk at the corner of Hook Creek Boulevard and 255th Street, Queens, on September 26, 2006. A police officer observed that respondent’s car appeared to have a forged Pennsylvania registration. In response to the officer’s request for paperwork, respondent produced a Georgia title that also appeared to be forged. The officer arrested respondent for possession of forged instruments. During an inventory search of the car, police discovered a loaded handgun in the glove compartment (Pet. Ex. 1 & 2). Respondent eventually pleaded guilty to attempted criminal possession of a weapon in the third degree, a class E felony, and was sentenced to one year's incarceration (Pet. Ex. 3). He has a prior conviction for criminal possession of marijuana in the fifth degree, a misdemeanor (Pet. Ex. 3).

Respondent’s guilty plea, as well as the unrebutted documentary evidence, demonstrated that the arrest was lawful and that car was used in aid or furtherance of the commission of a crime. NYC Admin. Code § 14-140(e)(1); Police Dep’t v. Ojeda-Burgos, OATH Index No. 1959/05, mem. dec. (June 9, 2005) (guilty plea satisfies Krimstock’s first two prongs). The third prong of Krimstock was satisfied because petitioner showed that return of the vehicle presents a heightened risk to the public. This risk may be shown by the circumstances of the offense or the offender’s background. See, e.g., Police Dep't v. Mohammed, OATH Index No. 1159/04, mem. dec. at 3-4 (Mar. 2, 2004); Police Dep't v. Rice, OATH Index No. 1709/05, mem. dec. (Apr. 21, 2005). Respondent has a prior criminal record and he possessed a loaded handgun in his car. Moreover, petitioner’s unrebutted evidence indicated that respondent possessed a forged registration and title. This demonstrates that respondent ignores lawful authority and poses a danger to others. See Police Dep’t v. Kinchen, OATH Index No. 810/07 (Nov. 6, 2006) (heightened risk where loaded handgun was easily accessible and driver had a suspended license).

Respondent’s mother, Sharon Longmore, alleged that she was the actual and innocent owner of the car. But the evidence to support this claim was scant and unpersuasive. Respondent and Ms. Longmore alleged in their affidavits that she purchased the car in 2006 and respondent did not make any financial contribution towards the car’s purchase or maintenance. They also asserted that Ms. Longmore used the car every day, primarily to commute to work, and respondent only used it once or twice a week for errands. Ms. Longmore submitted a handwritten receipt, dated April 12, 2006, indicating that she paid Clex Maddushi $4,000 for the car in April 2006 (Affidavits of Jermayne and Sharon Longmore). In rebuttal, petitioner submitted a motor vehicle record indicating that Ms. Longmore was the registered owner of another car, a 2000 Kia Spectra (Petitioner’s Response).

The affidavits submitted by respondent and his mother raised many unanswered and troubling questions. Neither respondent nor his mother offered any explanation why the seized car was registered in respondent’s name (Pet. Ex. 6). There was no denial of the allegation that the car’s title and registration had been forged. There was no mention of the insurance arrangements, if any, for the car. And there was no mention of how a loaded gun ended up in the glove compartment. The limited evidence offered by respondent – two vague affidavits and a single handwritten receipt – fell far short of demonstrating that Ms. Longmore was an actual or innocent owner of the seized car.

ORDER

The Department is entitled to retain the seized vehicle.

Kevin F. Casey

Administrative Law Judge

March 30, 2007

APPEARANCES:

LAWRENCE V. SISTA, ESQ.

Attorney for Petitioner

LATHAM & WATKINS, LLP

Attorneys for Respondent

BY: DONNA GOGGIN PATEL, ESQ.