Police Dep't V. Cortorreal

Police Dep't v. Cortorreal OATH Index No. 1479/06, mem. dec. (Mar. 29, 2006)

Respondent's motion to dismiss the proceeding for failure to schedule the hearing in a timely fashion denied. Petitioner proved its entitlement to retain the seized vehicle pending the outcome of a civil forfeiture action. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of POLICE DEPARTMENT Petitioner - against - JOSE CORTORREAL Respondent ______

MEMORANDUM DECISION CHARLES D. McFAUL, Administrative Law Judge Petitioner brought this proceeding to determine its right to retain a vehicle, a 1994 Toyota Corolla (voucher No. B118988), that was seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. Respondent, Jose Cortorreal, is the registered owner of the vehicle and was driving it 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 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 was seized by petitioner on February 17, 2006, following respondent’s arrest for driving while intoxicated and driving while impaired, pursuant to sections 1192(1), (2) and (3) of the Vehicle and Traffic Law. On March 15, 2006, petitioner served respondent with notice that the vehicle retention hearing was scheduled to be conducted on March 24, 2006 at this tribunal (ALJ Ex. 1; Pet. Ex. 2). Respondent, who appeared and was represented by counsel at the hearing, moved to dismiss the proceeding on the grounds that the Department failed to schedule the hearing within ten business days and failed to notify respondent within two business days of the hearing date as provided the Krimstock Order. In support of his motion, respondent submitted the affirmation of his attorney, Kissa Broadie, Esq., sworn to March 24, 2006 (Resp. Ex. A; "Broadie Aff."). For the reasons set forth below, I find that the hearing was scheduled in a timely fashion, and further conclude that petitioner is entitled to retain the vehicle pending the outcome of a civil forfeiture action. PRELIMINARY ISSUE I have considered the arguments concerning the timeliness of the hearing and find that the hearing was timely scheduled by petitioner in the circumstances presented here. The following facts are not in dispute. On February 17, 2006, respondent's vehicle was seized following his arrest and he was provided with a Property Clerk's receipt for the vehicle and a completed form advising him of his right to request a vehicle retention hearing. On February 21, 2006, respondent's attorney mailed an incomplete request for hearing form to the Police Department's Civil Enforcement Unit (Pet. Ex. 9; Broadie Aff. ¶ 6). The request for hearing form was incomplete in that the top portion of the form, which is labeled "FOR POLICE DEPARTMENT USE ONLY" and contains pertinent information regarding the date and location of arrest, the arresting officer, the make, year and identification number of the vehicle that was seized and the voucher number, was blank (Pet. Ex. 1). The request for hearing was received by the Civil Enforcement Unit on February 23, 2006 (Broadie Aff. ¶ 7). On February 28, 2006, Gina Klein, a paralegal in the Department's Vehicle Seizure Unit, left a telephone message for Ms. Broadie to the effect that the Department did not know if respondent's vehicle had been seized. On March 1, 2006, Ms. Klein spoke with Ms. Broadie and informed her that more information was required to enable the Department to schedule the retention hearing requested by respondent. On or about March 15, 2006, respondent provided Ms. Broadie with the Property Clerk's voucher and the request for hearing form he received when arrested. Ms. Broadie transmitted only the Property Clerk voucher form to the Department on March 15, 2006 (Broadie Aff. ¶¶ 8-10). Respondent contends that by submitting an incomplete request for hearing form to the Department on February 23, 2006, the notice of the retention hearing should have been served within two business days and the hearing scheduled ten business days thereafter, as required by the Krimstock Order.1 The Krimstock Order requires that the Department notify respondent "of the date of the hearing in a notice to be sent by mail within two business days after receipt of the written demand for a hearing" (Krimstock Order ¶ 6). The hearing is to "commence on a date and at a time, as fixed by the Police Department within 10 business days after receipt by the Police Department of a written demand for a such a hearing on the form provided by the Police Department and in accordance with the instructions set forth thereon, unless the date for such hearing shall have been extended by OATH upon a showing of good cause by either party" (Krimstock Order ¶ 4, emphasis supplied). Respondent relies upon this tribunal’s decision in Police Dep't v. Manning, OATH Index No. 1162/05, mem. dec., at 4 (Jan. 25, 2005) (holding that missing information from the top portion of the request for hearing form did not excuse the Department from scheduling retention hearing with ten business days of receipt of incomplete form). Petitioner argues that respondent was provided with the completed request for hearing form at the time of his arrest, and could have submitted that same form to the Department, as the instructions make clear on the form. The instructions require that the completed form be addressed to the attention of the "Vehicle Seizure Unit." Further, because the Vehicle Seizure Unit handles over 3,000 vehicle seizure cases each year, the information on the top of the form is crucial to enabling staff in the Vehicle Seizure Unit to promptly ascertain the criminal case and the identity of the vehicle, so that it may prepare the petition and serve the notice of hearing within two business days. We have held that due to the constitutional bases underlying the Krimstock Order, compliance with the time frames should be strictly construed against petitioner. Police Dep't v. Manning, OATH Index No. 1162/05, mem. dec. (Jan. 25, 2005). We have also construed the relevant language of the Krimstock Order to have its plain meaning – that is, to trigger the Krimstock time frames, a demand must be made on the prescribed form. Police Dep’t v. Bruno,

1 Ms. Broadie cited to a prior Krimstock Order, dated January 22, 2004, which has been superseded by the second amended order, dated December 6, 2005. OATH Index No. 1304/04, mem. dec. at 6 (Apr. 8, 2004) ("The Krimstock v. Kelly order requires the Department to mail a notice of right to demand a hearing, and that such notice must include a form by which a hearing may be demanded. The Krimstock v. Kelly order does not provide for any other form of demand for a hearing"). The Krimstock Order's provisions are strict and require the Department to serve the petition and notice of hearing within two business days of receipt of the request for hearing. In order to comply with such expedited time periods, the Krimstock Order allows for the Department to prescribe the form to be used and the procedures to be followed when requesting a hearing. Where the Department has provided a respondent with the prescribed hearing request form, the Department's instructions call for that form to be submitted to its Vehicle Seizure Unit. The issue is whether or not the time frames should begin to run when as here, the Department did not receive the same form that it provided to respondent, filled out and delivered in accordance with its instructions. The evidence shows that the hearing request form was not properly addressed to the attention of the Vehicle Seizure Unit (Pet. Ex. 9). Thus, I find this delayed initial processing of the hearing demand for three business days, or until February 28, 2006, when Ms. Klein left a message for Ms. Broadie (Broadie Aff. ¶ 8). See Police Dep't v. Rice, OATH Index No. 1709/05, mem. dec. (Apr. 21, 2005) (holding that incomplete address on hearing demand delayed service of notice and was attributable to respondent). I further find that the notice requirements set forth in the Krimstock Order are not triggered until the request for hearing form "provided by the Police Department" is received by the Department's Vehicle Seizure Unit. I credit petitioner's contention that the incomplete Notice of a Right to a Retention Hearing form received on February 23, 2006, lacked critical identifying information necessary to enable the Department to promptly identify the vehicle in issue. Indeed, Gina Klein, a Department paralegal, informed respondent's counsel on February 28, 2006, that she did not believe respondent's car had been retained based on the incomplete form submitted by respondent. Ms. Klein confirmed the Department's need for the case and vehicle information during a telephone conversation on March 1, 2006 (Broadie Aff. ¶¶ 8-9). It was not until March 15, 2006, when Ms. Broadie faxed the Property Clerk's Motor Vehicle/Boat Invoice to the Seizure Unit that a petition and notice of hearing was served on respondent (Pet. Ex. 2; Broadie Aff. ¶¶ 10-11). I find no basis to conclude that petitioner acted in bad faith here. Once the hearing demand form was delivered to the Vehicle Seizure Unit, it acted promptly to obtain the information necessary to initiate a retention proceeding. The information petitioner sought was readily available to respondent on the Property Clerk voucher and on the hearing request form, both of which he received when arrested. Respondent relies on Police Dep't v. Manning, OATH Index No. 1162/05, mem. dec. (Jan. 25, 2005) to argue that the information missing from the top of the hearing request form does not excuse the Department from scheduling the hearing within two business days from receipt of the incomplete form because the missing information was in the possession of the Police Department. This argument is unavailing because the circumstances here are different. In Manning, Judge Merris ordered the return of a vehicle because petitioner failed to timely mail notice of the hearing date within the required two business days of receipt of the demand for a hearing, and failed to timely schedule a hearing within the required ten days of receipt of the demand for hearing, as required by the Krimstock Order. The delay in that case was occasioned by four days of settlement negotiations and the hearing request form lacked any information about the arrest or the vehicle, similar to the form used here. Judge Merris reasoned that the information missing from the hearing request form could not be relied upon by the Department to excuse its delay in scheduling the hearing because the Department initiated settlement discussions within a day of receiving the form, thereby evidencing sufficient knowledge of the vehicle at issue. Here, the Department was unable to proceed and sought additional information from Ms. Broadie about respondent's criminal case and his vehicle. This distinguishes Manning. The terms of the Krimstock Order permit the Department to set the requirements for demanding a hearing. Those requirements specify that the form provided to the respondent be submitted to the Vehicle Seizure Unit. Neither was done here on February 23, 2006, the date from which respondent contends the time should run. Had respondent followed the instructions on the form he received, the hearing could have been scheduled sooner. The Department acted in good faith by contacting Ms. Broadie to ascertain the missing information. Because the scheduling time period is so brief, the Department should not be expected to undertake an internal investigation into thousands of arrests and seizures to determine necessary information regarding respondent's arrest and vehicle. The confusion and delay that resulted from the submission of an incomplete form should be charged to respondent. Police Dep't v. Tripp, OATH Index No. 148/06, mem. dec. (July 19, 2005) (denying motion to dismiss where petitioner failed to comply with the initial notice requirements, but there was no demonstrable delay in the hearing due to Department's actions); cf. Police Dep't v. Montes, OATH Index No. 1372/06, mem. dec. (Mar. 14, 2006) (granting motion to dismiss where the Department utterly failed to show that it had served the required notice of a right to a hearing). In another retention case before this tribunal decided on the same day as this, Judge Salzman found that the missing arrest and vehicle information on the request for hearing form should be held against respondent. Police Dep't v. Cardona, OATH Index No. 1476/06, mem. dec. (Mar 28, 2006). "Where a respondent seeks to hold the Department to a technical application of the Krimstock Order, 'it seems only fair that the same technicalities be applied to him in his submission of his demand in the first instance, particularly where there was no demonstrable prejudice, no substantial delay, and no evidence of bad faith or dilatory tactics on the part of petitioner.'" Cardona, mem. dec., at 7, citing Police Dep't v. Rice, OATH Index No. 1709/05, mem. dec., at 5. I therefore find that service of the notice of hearing on March 15, 2006, and scheduling the hearing for March 24, 2006, satisfied the requirements of the Krimstock Order.

ANALYSIS The Department seeks to hold the vehicle as the instrumentality of a crime. Thus, the Department had 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 pending final judgment in the forfeiture action. County of Nassau v. Canavan, 1 N.Y.3d at 144-46, 770 N.Y.S.2d at 286; Krimstock Order ¶ 2. Here, 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). Petitioner relied exclusively on documentary hearsay evidence, as permitted by the Krimstock Order and section 1-46 of this tribunal's rules of practice. Respondent did not challenge the merits of petitioner's case. According to the criminal complaint and the arrest report (Pet. Exs. 4, 5), Police Officer Shamus W. Smith observed respondent attempting to parallel park his car three times, and then falling asleep behind the wheel with the gear shift still engaged. Officer Smith further affirmed that he observed respondent to have an odor of an alcoholic beverage emanating from his breath and person, to have slurred speech, to be unable to stand without using the car to support himself. Officer Smith also affirmed that he was present for the administration of a chemical analysis of respondent's breath that revealed a blood alcohol content of 0.224 percent. I find that the officer's observation of respondent attempting to park three times and falling asleep at the wheel to be sufficient cause to approach the vehicle. The Court of Appeals has held that police should be given wide latitude to approach individuals and request information. See People v. De Bour, 40 N.Y.2d 210, 216, 386 N.Y.S.2d 375, 380 (1976); see Police Dep’t v. Burnett, OATH Index No. 1363/04, mem. dec. (Mar. 11, 2004), aff’d sub nom. Property Clerk v. Burnett, Index No. 04/400955 (Sup. Ct. N.Y. Co. July 19, 2004) (Schulman, J.). Officer Smith's subsequent observation of respondent's slurred speech, odor of alcohol, and inability to stand unsupported, and the subsequent breath test result of 0.224 percent blood alcohol content provided probable cause to arrest respondent, thereby satisfying prong one. This same evidence also supports a finding under prong two, the likelihood that the Department will prevail at the forfeiture action. The breath analysis result alone shows that respondent’s blood alcohol level exceeded the legal standard set by section 1192(2) of the Vehicle and Traffic Law, a misdemeanor crime. I therefore find it likely that the Department will prevail in the civil forfeiture action, where the burden of proof is by a preponderance of the evidence. The only remaining question is whether the Department satisfied the third prong. To meet that test, the Department must show a "heightened risk" to public safety if the vehicle were to be returned pending the outcome of the civil forfeiture action. See, e.g., Police Dep't v. Vanegas, OATH Index No. 1056/06, mem. dec., at 3 (Jan. 10, 2006) (citing Canavan, 1 N.Y3d at 144-45, 770 N.Y.S.2d at 285-86; Police Dep't v. McFarland, OATH Index No. 1124/04, mem. dec., at 2 (Feb 24, 2004). A heightened risk to public safety can be shown based upon the circumstances of the crime or the history of the driver. See, e.g., Police Dep’t v. Mohammed, OATH Index No. 1159/04, mem. dec. (Mar. 2, 2004) (considering respondent's use of vehicle for multiple sales of illegal firearms); Police Dep't v. Johnson, OATH Index No. 1572/05, mem. dec. (Apr. 5, 2005) (considering history of driving while intoxicated); Police Dep’t v. Hines, OATH Index No. 430/06, mem. dec. (Sept. 6, 2005) (considering the seriousness of crime charged and prior history of criminal convictions). Although this case is respondent’s first arrest for driving while intoxicated, respondent's blood alcohol content of 0.224 percent, almost three times the legal limit of .08 percent, is sufficient to show a heightened risk to the public, in satisfaction of the third prong. Police Dep't v. Cevallos, OATH Index No. 552/06, mem. dec. (Oct. 24, 2006) (ordering retention of vehicle due to possible relocation and a blood alcohol level of .22 percent); Police Dep't v. Serrano, OATH Index No. 499/06, mem. dec. (Sept. 22, 2005) (ordering retention of vehicle for blood alcohol level of .239 percent); compare Police Dep't v. Fung, OATH Index No. 1195/05, mem. dec. (Jan. 27, 2005) (holding that a single instance of driving while intoxicated, without more, does not show a heightened risk to public safety). Under these circumstances, petitioner has demonstrated a need to retain the vehicle to protect the public.

ORDER Respondent's motion to dismiss the proceeding is denied. Petitioner is entitled to retain the seized vehicle pending the outcome of the civil forfeiture action.

Charles D. McFaul Administrative Law Judge

March 29, 2006 APPEARANCES:

KATHLEEN FAHEY, ESQ. Attorney for Petitioner

THE LEGAL AID SOCIETY Attorneys for Respondent BY: KISSA BROADIE, ESQ.