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Police Dep't v. Gonzalez

OATH Index No. 1929/06, mem. dec. (June 13, 2006)

Petitioner was unable to prove its entitlement to retain a seized vehicle pending outcome of a civil forfeiture action. Petitioner failed to prove that the owner of the vehicle, who was not present when the driver was arrested, was not an innocent owner, or that the driver was the beneficial owner of the vehicle.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

JOSE GONZALEZ and JOHNNY BLANCO

Respondents

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MEMORANDUM DECISION

ROBERTO VELEZ, Chief 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 (Pet. Exs. 7a and 7b). Respondents are Johnny Blanco, the registered owner of the seized vehicle, and his half-brother, Jose Gonzalez, the driver from whom the vehicle was seized (Pet. Exs. 6 and 7d). 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 vehicle in question, a 2000 Chevrolet Impala (Voucher #B113061), was seized on January 5, 2006, in connection with Mr. Gonzalez’s arrest for criminal possession of a controlled substance in the third degree, criminal possession of a weapon in the third degree, and failing to use headlights with windshield wipers (Pet. Ex. 5). The criminal case is pending. Following petitioner’s receipt of respondent’s demand for a hearing on May 31, 2006, a hearing was scheduled and held on June 8, 2006. Respondents, represented by counsel, appeared and challenged petitioner’s right to retain the vehicle until such time as a civil forfeiture hearing is commenced on the grounds that Mr. Blanco was an innocent owner. As set forth below, I conclude that the Department is not entitled to retain the vehicle.

ANALYSIS

The Department seeks to retain the vehicle as the instrumentality of a crime, rather than as evidence for a criminal case. Thus, 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 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 v. Kelly, 306 F.3d 40, 69-70 (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 evidence showed that on January 5, 2006 at approximately 8:45p.m., a police officer observed Mr. Gonzalez,a twenty-one-year-old male, driving with a broken front headlight with a female passenger, Fiordalisa Peralta, who is not a party to this action. It appears from Mr. Gonzalez’s testimony that he was giving Ms. Peralta a ride as a favor for a friend (Pet. Exs. 1, 3, & 5). After stopping the vehicle, the police officer observed one .380 caliber pistol on the floor of the vehicle with five rounds of ammunition. The police officer then searched Mr. Gonzalez and found fourteen glassines of heroin (Pet. Ex. 3). Mr. Gonzalez was subsequently charged with criminal possession of a controlled substance in the third degree, criminal possession of a weapon in the third degree, and failure to use headlights with windshield wipers (Pet. Ex. 5).

Mr. Blanco testified that he haslived in upstate New York in Port Ewen since October, 2005. He has worked for the National Guard for the past six years as a specialist and also works for an insulation company. He visits New York City around three weekends out of the month when he is not working for the National Guard. His mother, sister and two daughters live in Brooklyn. Mr. Blanco testified that in addition to owning the Chevrolet Impala, he also owns a 2003 Jeep Wrangler. Mr. Blanco lent the vehicle in question to Mr. Gonzalez every “once in awhile,” and had lent the vehicle to Mr. Gonzalez the Sunday before the incident occurred. Mr. Blanco testified that he had no idea the vehicle would be used to engage in illegal activities. He was unaware that his half-brother carried a gun or heroin. He also was unaware of the .380 caliber pistol in the vehicle.

Mr. Gonzalez testified that he lived at home with his mother in Brooklyn and paid no rent. In addition, he stated that he did not know the woman who was a passenger in the vehicle at the time of the arrest since he was giving her a ride as a favor for a friend.

With respect to the first element of the Krimstock order, I find that the documentary evidence (Pet. Exs. 1, 2, & 3) submitted by the Department is clearly sufficient to establish probable cause for Mr. Gonzalez’s arrest. Since criminal court complaints have been routinely admitted by this tribunal, I find that the criminal court complaint (Pet. Ex. 3) detailing the broken front headlight, establishes a reasonable justification for the police officer to approachthe vehicle. Moreover,I find the criminal court complaint (Pet. Ex. 3) detailingthat the .380 caliber pistol was on the floor of the vehicle in plain view and that Mr. Gonzalez was in possession offourteen glassines of heroin, to be reliable and probative. As to the second element, the same evidence also established the Department’s likelihood of success in a subsequent civil forfeiture action on the basis that Mr. Gonzalez used the seized vehicle as the instrumentality of a crime. See Police 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).

The third element, that the Department is entitled to retain the vehicle pending final outcome of the civil forfeiture action, requires proof that retention is necessary to preserve the vehicle from loss, sale or destruction or that retention is necessary to protect the public’s safety. 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 also 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)). Although Mr. Blanco did not deny that Mr. Gonzalez committed these crimes, he argued for return of the vehicle because he is an innocent owner.

Where the vehicle owner is different than the driver who was arrested and from whom the vehicle was seized, the owner can assert an “innocent owner” defense. The Petitioner bears the burden of proving that Mr. Blanco is not an innocent owner. See Property Clerk, New York City Police Dep't v. Pagano, 170A.D.2d30, 573 N.Y.S.2d 658 (1st Dep't 1991); Police Dep't v. Harris, OATH Index No. 971/05, mem. dec. (Dec. 27, 2004), aff'd, 7 Misc. 3d 1032A, 801 N.Y.S. 2d 241 (Sup. Ct. N.Y. Co.). Petitioner must show that Mr. Blanco “permitted or suffered” the illegal use of the property, that is, that he knew, or should have known, that his vehicle would be used in furtherance of a crime. Pagano, 170 A.D.2d at 36, 573 N.Y.S.2d at 662. The burden was not met.

Mr. Blanco did testify that he was awareMr. Gonzalezhad been previously arrested. However, Mr. Blanco was not aware why Mr. Gonzalez had been arrested or when the arrest occurred. The criminal history of Mr. Gonzalez (Pet. Ex. 5) shows that the previous arrest was for assault, attempted murder, and criminal possession of a weapon in the fourth degree in November, 2004. Nevertheless, I find the statement made by respondent’s attorney, Mr. Kirshner, in which he explained that he was in the process of amendingMr. Gonzalez’s criminal history record to remove this previous arrest, to be credible. Mr. Gonzalez was only placed in a line-up, from which he was not picked.

On this record I find that the Department failed to establish that Mr. Blanco was not an innocent owner of the Chevrolet. The Department failed to meet its burden of proving that Mr. Blanco knew or should have known that Mr. Gonzalez would have engaged in the illegal activities for which he was arrested. Even though he was aware that Mr. Gonzalez had been previously arrested, Mr. Blanco was not aware of the charges for the arrest. The charges never resulted in convictions, occurred over a year ago, and there is nothing to indicate that they involved a vehicle. See Police Dep't v. Janis, OATH Index No. 2078/05, mem. dec. at 6 (June 21, 2005). I find Mr. Blanco’s testimony credible as to his lack of knowledge of the firearm, controlled substance, and that his Chevrolet Impala would be used in furtherance of a crime.

The Department challenged Mr. Blanco’s claim of being an innocent owner by asserting that Mr. Gonzalez 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). In the current case, the Department has not established that Mr. Gonzalez has a possessory interest in the vehicle, nor has the Department established that Mr. Gonzalez had dominion and control over the vehicle.

In prior case law, certain factors have been evaluated to determine whether or not a person is a beneficial owner of a vehicle. Such factors include: the name on the documents related to ownership, the person who bears the expense for the vehicle or for the insurance, the primary user of the vehicle, how consistently the person uses the vehicle, and how many vehicles the person owns. See Police Dep't v. Torres, OATH Index No. 1412/06, mem. dec. (Mar. 31, 2006) (The nephew was not found to be the beneficial owner of his aunt’s vehicle because the nephew’s name does not appear on any documents related to ownership, he did not make loan payments on the vehicle, the aunt was the primary user of the vehicle and the vehicle was her primary mode of transportation).

Mr. Gonzalez’s name does not appear on any documents related to the ownership of the vehicle and the fact that he had been out of work and living at home, is proof that he did not contribute to the expense of the vehicle. The sole evidence that exists as to Mr. Gonzalez’s exercise of dominion and control over the vehicle is when Mr. Blanco lent the vehicle to his half-brother the Sunday before the arrest occurred, and duringother occasions thattook placemerely “once in awhile.” Mr. Blanco and Mr. Gonzalez do not live in the same city, and Mr. Gonzalez was only able to borrow the vehicle when Mr. Blanco visited Brooklyn on the weekends. The Department attempted to make use of the facts that Mr. Blanco owned two cars, was unable to remember from whom he bought the vehicle, what radio stations were programmed into the vehicle stereo, and the exact amount he paid for the vehicle, to establish Mr. Gonzalez as the beneficial owner. However, this evidence is insufficient to prove Mr. Gonzalez exercised dominion and control over the vehicle.

The Department has failed to prove that Mr. Gonzalez is the beneficial owner of the vehicle or that Mr. Blanco is not an innocent owner. As a result, 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

June 13, 2006

APPEARANCES:

LAWRENCE V.SISTA, ESQ.

Attorney for Petitioner

JAMES KIRSHNER, ESQ.

Attorney for Respondents