Police Dep T V. Ugweches

Police Dep’t v. Ugweches OATH Index No. 2117/05, mem. dec. (June 15, 2005)

Petitioner failed to prove its entitlement to retain a seized vehicle as the instrumentality of a crime pending the outcome of a civil forfeiture action. Where petitioner relied solely upon unsupported hearsay and respondent presented a plausible defense, petitioner did not meet its burden of proving lawfulness of the arrest or likelihood of success at civil forfeiture proceeding. Petitioner also failed to prove that impoundment of the vehicle was necessary to insure its availability for a judgment in a civil forfeiture action. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of POLICE DEPARTMENT Petitioner -against- AUSTEN UGWECHES Respondent ______

MEMORANDUM DECISION KEVIN F. CASEY, Administrative Law Judge Petitioner, the Police Department, brought this action 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, Austen Ugweches, owns the vehicle and was driving it 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) (the “Krimstock Order”), as amended December 23, 2004. 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 Department seized the vehicle, a 2004 Chevrolet Tahoe, property clerk voucher number B149038V, on April 22, 2005, following respondent’s arrest for assault and obstruction of governmental administration. Petitioner received a demand for a hearing on May 27, 2005. Petitioner scheduled a hearing at this tribunal for June 10, 2005, and served notice of the hearing on respondent. On that date, respondent appeared with counsel and contested the Department’s petition. -2- For the reasons below, I conclude that the Department is not entitled to retain the vehicle. ANALYSIS This matter arose out of a dispute over a parking ticket. Petitioner alleged that respondent used his vehicle to strike a police officer who was issuing a summons on East 43 rd Street in Manhattan. Respondent denied that he or his vehicle ever struck the officer. He insisted that the officer fabricated the criminal charges following an argument about the ticket. The Department alleged that the vehicle was seized as the instrumentality of a crime, rather than as evidence in a criminal case, and it was undisputed that the District Attorney’s Office had issued a release indicating that it no longer needed the vehicle as evidence. To retain the vehicle as the instrumentality of a crime, the Department bears the burden of proving 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. Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286; Krimstock v. Kelly, amended order and judgment at 3. 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, 306 F.3d at 70; see Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286. To rebut the Department’s proof, respondent need not present “a fully proved defense, but only a legally viable, factually substantial defense.” Police Dep’t v. Rivera, OATH Index No. 1272/04, mem. dec. at 2 (Apr. 19, 2004) (citation omitted). The Department called no witnesses. It elected to rely upon a property clerk’s invoice and an unsigned arrest report (Pet. Exs. 4 and 5). According to the invoice, respondent used the vehicle as a weapon when he “hit an officer who was attempting to write a parking summons. [Officer] did sustain injury to wrist and back” (Pet. Ex. 4). The arrest report contains the following summary: [Respondent] did intentionally drive his motor vehicle striking PO Murphy in the torso with the front bumper causing PO Murphy to lose balance and take a step backwards resulting in pain to the lower back. At the time of the assault, PO Murphy was attempting to issue [respondent] a parking summons at the location. -3-

(Pet. Ex. 5). At some point in the dispute, respondent reportedly said, “Get out of my way” (Pet. Ex. 5). The Department offered no other pertinent documents, such as a criminal court complaint, a request for medical assistance, or any documents confirming that the officer had been injured. Based upon this arrest, respondent was charged with assault in the second degree, Penal Law § 120.05(3), and obstructing governmental administration in the second degree, Penal Law § 195.05 (Pet. Ex. 6). Those charges are still pending and there was no evidence that any grand jury action has been taken on this matter. Respondent, a self-employed attorney, testified on his own behalf. He claimed that, on the night of the incident, he pulled up next to a car parked on East 43rd Street in order to yield to a fire truck. Police Officer Karen Murphy stepped in front of respondent’s vehicle and began to write down his license plate number. Fearing that he was about to get a parking ticket, respondent honked his horn. The officer put her hands up. Respondent put the vehicle in park and got out. He told the officer that he was about to leave and he had not double-parked. The officer replied that respondent had blocked the fire truck and she added, “If you don’t want a parking violation, give me your license and I’ll give you a moving violation.” Respondent told the officer, “I happen to know you can’t do that. I’m a lawyer.” During the heated exchange that ensued, the officer said, “I can do what I want. I could say that you hit me.” By respondent’s estimate, they continued to argue for five minutes. Other officers arrived and Officer Kelly told them, “He hit me.” Eventually, a sergeant directed one of the officers to handcuff respondent, who was visibly upset. Respondent claimed that the sergeant told him to calm down. The sergeant assured respondent that when they got to the precinct he would be given a desk appearance ticket and released. Respondent flatly denied that he or his vehicle struck the officer. He insisted that he was outside the parked vehicle during the argument. Respondent further claimed that there was no indication, at the scene or at the precinct, that Officer Kelly had been injured. No ambulance was called and the officer had full range of movement. The Department was invited to request an adjournment to call Officer Kelly or any other witness. It declined the offer and presented no rebuttal. See 48 RCNY § 2-44 (Lexis 2005). -4- Although the Department may rely upon hearsay,the evidence that it chose to present was particularly weak. Police Officer Brian Johnson signed the property clerk’s invoice. It is uncertain whether he was at the scene and the source of his information is unidentified. It is unclear how many filters of hearsay the description of the incident went through before Officer Johnson reduced it to writing. The unsigned arrest report has similar deficiencies. Officer Kelly is named as the arresting officer and Officer Johnson is listed as the assigned officer, but the sources of the information contained in the report are not clearly identified. There was inconsistent and uncorroborated evidence from the Department regarding Officer Kelly’s injuries. The property clerk’s invoice states that the officer injured her wrist and back, but the arrest report only refers to lower back pain. The Department offered no evidence to show that the officer requested or received any medical attention. Respondent’s testimony cast further doubt on the Department’s case. At times respondent was long-winded and melodramatic. However, the central theme was consistent; neither he nor the vehicle ever struck the officer. Although the Department vigorously cross- examined respondent, it did not convincingly undermine his defense. For example, the Department sought to portray respondent as unstable and capable of road rage. To support this theory, it seized upon respondent’s concession that he was in the process of appealing a sanction that had been imposed for undue delay in an unrelated civil trial. The Department argued that this evidence demonstrated respondent’s lack of respect for authority. On the contrary, it showed respondent’s willingness to use lawful process. Similarly, the Department argued that respondent’s emotional and occasionally non- responsive answers were signs of emotional instability. The evidence does not support the Department’s speculation. Respondent’s demeanor was consistent with that of a person claiming false arrest. And his lengthy answers were typical for a lawyer-witness. Nothing in respondent’s testimony suggested that he would resort to violent behavior. The charges and counter-charges are serious. Either the police officer fabricated the assault allegation or respondent injured the officer and then lied about it. Although the Department might present more compelling evidence at a civil forfeiture proceeding, the proof it presented here was too meager to rebut respondent’s defense. Hence, the Department failed to satisfy its burden of establishing the lawfulness of the arrest or likelihood of success in a -5- forfeiture proceeding. Police Dep’t v. Burnett, OATH Index No. 1363/04, mem. dec. (Mar. 11, 2004), aff’d Property Clerk v. Burnett, Sup. Ct. N.Y. Co. Index No. 04/400955 (Jul. 18, 2004) (Schulman, J.); Police Dep’t v. Mackey, OATH Index No. 1968/04, mem. dec. (May 26, 2004). The Department also failed to prove the third prong of Krimstock. There is no indication that respondent has ever before been arrested or convicted of any offense. Nor is there any evidence that he has any prior history of using a vehicle in a reckless or unlawful manner. Respondent noted that following this arrest he was released on his own recognizance. This further suggests that he does not present a heightened risk to the public. See Police Dep’t v. Fung, OATH Index No. 1195/05, mem. dec. at 6 (Jan. 27, 2005) (“heightened risk” to public safety not shown, despite arrest for reckless endangerment and reckless driving, where respondent has no prior arrest record). There was also no evidence that retention of the vehicle is necessary to preserve it from sale, loss, or destruction. See Police Dep’t v. Pierre-Louis, OATH Index No. 1452/04, mem. dec. at 3-4 (Mar. 24, 2004). Respondent seems eager to contest any litigation related to this incident. Indeed, he conceded that he anticipates commencing a lawsuit for wrongful arrest. It is unlikely that he would undermine his position by disposing of the vehicle. ORDER The Department is directed to release respondent’s vehicle.

Kevin F. Casey June 15, 2005 Administrative Law Judge

APPEARANCES:

RALPH LEONART, ESQ. Attorney for Petitioner

EMDIN & RUSSELL, LLP Attorneys for Respondent BY: JEFFREY EMDIN, ESQ.