Police Dep T V. Figueroa

Police Dep’t v. Figueroa OATH Index No. 391/08, mem. dec. (Oct. 2, 2007)

Petitioner is entitled to retain respondent’s vehicle pending outcome of civil forfeiture proceeding. The third prong of the Krimstock Order was established by petitioner’s high blood alcohol content of .173% at the time of arrest. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

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

MEMORANDUM DECISION ROBERTO VELEZ, Chief Administrative Law Judge Petitioner, the Police Department (“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. Respondent Jose Figueroa was the registered owner and driver of the vehicle 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 6, 2005. 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 issue is a 1995 Chrysler, property clerk voucher #B158904V, which was seized by the Department on August 12, 2007, in connection with respondent’s arrest for driving while intoxicated (N.Y. Veh. & Traf. Law § 1192(3) (LEXIS 2007)), operating a motor vehicle with a blood alcohol content of .08% or more (N.Y. Veh. & Traf. Law § 1192(2) (LEXIS 2007)), and reckless driving (N.Y. Veh. & Traf. Law § 1212 (LEXIS 2007)). Respondent’s demand for 2 a hearing was received on August 21, 2007, and trial was scheduled for September 4, 2007. On respondent’s request, trial was adjourned to September 27, 2007, at which time he appeared with counsel and contested the Department’s petition. As set forth below, I conclude that the Department is 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: (i) that probable cause existed for the arrest pursuant to which the vehicle was seized; (ii) that it is likely that petitioner will prevail in a civil action for forfeiture of the vehicle; and (iii) that 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, as amended December 6, 2005, 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 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 (hearing is intended to establish “the validity, or at least the probable validity, of the underlying claim”) (citation omitted). As a preliminary matter, during trial Mr. Figueroa asserted that he had not been properly served with notice of his right to a retention hearing at the time of his arrest or by mail, and only learned of his right to a hearing through his attorney. The Krimstock Order sets forth detailed notice requirements: Notice of the right to a forfeiture hearing will be provided at the time of seizure by attaching to the voucher already provided to a person from whom a vehicle is seized a notice, in English and Spanish, as set forth below. A copy of such notice will also be sent by mail to the registered owner and/or title owner of the vehicle within five business days after the seizure.

Krimstock Order, ¶ 3. The Krimstock Order requires service both at the time of seizure and by mail. Police Dep’t v. Cardona, OATH Index No. 1476/06, mem. dec. (Mar. 29, 2006). This tribunal has repeatedly held that these notice requirements are to be strictly construed against the Department and has ordered vehicles be released where the Department has failed to comply. See Police Dep’t v. Karmansky, OATH Index No. 1694/07, mem. dec. (Mar. 30, 2007) (releasing 3 vehicle where respondent was not served with notice at time of arrest or by mail); Police Dep’t v. House, OATH Index No. 587/07, mem. dec. (Sept. 27, 2006) (ordering release of vehicle where respondent was not served at time of arrest or by mail within five days of arrest); Police Dep’t v. Caban, OATH Index No. 107/07, mem. dec. (July 14, 2006) (granting respondent’s motion to dismiss where respondent was not served at time of arrest). The Department contends that it served Mr. Figueroa with both notices. As evidence, it submitted a copy of the Vehicle Seizure Form prepared by the arresting officer at the time of the seizure (Pet. Ex. 9). The form contains a verification of service, which as filled in reads, “The undersigned verifies that on 8/12/07, 2007 [sic] at 0040 hrs., I served the within NOTICE OF A RIGHT TO A RETENTION HEARING, on the defendant Jose Figueroa, personally.” The arresting officer, Patrick Richardson, signed his name as the serving officer. Below Officer Richardson’s name is a box for a supervising or desk officer to sign to verify service. This box is signed by a Sergeant John Germino. While Mr. Figueroa testified that he was not served with the notice at the time of his arrest, I do not find his testimony as to this point credible. Respondent had a blood alcohol level of over twice the legal limit, which may have affected his ability to recall events during his arrest and detention such that he likely could have been handed the notice of a right to a retention hearing and not realized or remembered it. See Police Dep’t v. Sica, OATH Index No. 1139/06, mem. dec. (Jan. 26, 2006). Further, I find that the Department’s documentary proof was prepared in the ordinary course of business and does not contain any inconsistencies that might otherwise lead me to question its accuracy. Indeed, there is a presumption of regularity which attaches to official acts, which the Department is entitled to rely on here. See In re Marcellus, 165 N.Y. 70, 77 (1900); Police Dep’t v. Melendez, OATH Index No. 1520/06, mem. dec. at 3 (Apr. 5, 2006). As far as the second Krimstock notice requirement, which must be sent by mail within five days after the seizure, counsel for the Department provided its case folder for this action in response to Mr. Figueroa’s claim that he did not receive notice by mail until several weeks after the seizure. There was a hand-written notation on the outside of the folder indicating that notice of the right to a hearing was mailed to respondent on August 17, 2007, along with several other hand-written entries, all of which appeared to be business record entries. Again, I accept this as reliable proof that the notice of hearing rights was mailed to respondent within the time specified in the Krimstock Order. See Police Dep’t v. Amaro, OATH Index No. 317/08, mem. dec. at 4 4

(Aug. 21, 2007) (accepting notation on file folder jacket as proof of mailing). Therefore, I find that the Department has established by a preponderance of the evidence that it provided Mr. Figueroa with proper notice of his right to a retention hearing, both at the time of his arrest and subsequently by mail. Turning to the merits of the instant proceeding, the complaint report states that at 9:09 p.m. on August 11, 2007, while operating the subject vehicle on West 100th Street between Broadway and West End Avenue, Mr. Figueroa was observed going through a steady red light, almost causing an accident with an oncoming vehicle (Pet. Ex. 5). When approached by officers, Mr. Figueroa’s speech was slurred, his breath smelled strongly of alcohol, and he was unable to remain upright without the help of leaning against something (Pet. Ex. 5). Mr. Figueroa admitted operating the vehicle, but denied running a red light or almost causing an accident, stating that he was stopped while looking for a parking spot on West 100th Street. He acknowledged drinking prior to driving, but testified that he had only had one or one-and-a-half cans of beer. Mr. Figueroa concluded that while he does not use his car a lot, he needs it to go shopping in areas of the city where prices for food and other goods are cheaper than where he lives. With respect to the first prong of the Krimstock Order, the Department established that at approximately 9:20 p.m. on August 11, 2007, Mr. Figueroa was observed driving through a steady red light, almost causing an accident, and that when stopped, respondent had slurred speech, trouble remaining upright, and smelled of alcohol (Pet. Ex. 5). Although Mr. Figueroa testified that he did not run a red light, but rather was stopped by the police while simply looking for a parking space, I did not find his testimony as to the circumstances of the stop credible. Considering the fact that Mr. Figueroa’s blood alcohol level was at .173, over two times the legal limit of .08, I find it likely that he did run a red light as indicated in the arrest report, although he might not have been cognizant that he ran one. Therefore, I find that the Department’s documentary evidence established that probable cause existed for the arrest. To establish the second element of the Krimstock Order, the Department must show that it is likely to prevail at a civil forfeiture proceeding. That is, it must prove that the subject vehicle was “used as a means of committing crime or employed in aide or in furtherance of crime…” NYC Admin. Code § 14-140[e][1] (Lexis 2007). With respect to this second prong, I find the Department’s evidence established that Mr. Figueroa, while driving his vehicle in the 5 vicinity of West 100th Street and Broadway, was observed running a red light, almost causing an accident, and that he had slurred speech, the odor of an alcoholic beverage on his breath, and trouble staying upright, as well as registered a blood alcohol level of .173% (Pet. Ex. 5). This evidence supports a finding that the Department is likely to prevail at a civil forfeiture proceeding because the vehicle was used as an instrumentality of the crime of driving while intoxicated. See Police Dep’t v. Castro, OATH Index No. 2211/05, mem. dec. at 3 (July 13, 2005). Finally, the Department must establish that it is necessary for it to retain the vehicle pending the forfeiture action or that the return of the vehicle would pose a heightened risk to the public safety. See, e.g., Police Dep’t v. McFarland, OATH Index. No. 1124/04, mem. dec. at 2 (Feb. 24, 2004) (citing County of Nassau v. Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86). Generally, “the mere fact of a single arrest for operating a motor vehicle while intoxicated, without more, is insufficient to demonstrate a heightened risk to the public safety.” Police Dep’t v. Vanegas, OATH Index No. 1056/06, mem. dec. at 4 (Jan. 10, 2006) (returning vehicle to respondent where respondent had a .15% blood alcohol level and no prior convictions). However, we have previously found that a heightened risk to public safety can be shown based upon the severity of the level of intoxication, even in the absence of relevant prior criminal history. See Melendez, OATH 1520/06, mem. dec. at 4 (necessity to retain vehicle established where respondent’s blood alcohol level was .182%, which is “more than twice the legal limit”); Police Dep’t v. Lester, OATH Index No. 1049/06, mem. dec. at 4 (Jan. 10, 2006) (explaining respondent’s .17% “blood alcohol content was so high that it alone might have constituted an aggravating factor”); Police Dep’t v. Serrano, OATH Index No. 499/06, mem. dec. at 5 (Sept. 22, 2005) (finding respondent’s blood alcohol level of .207% and .239% on retest so high that they indicated recklessness). Here, although respondent has a long history of criminal convictions spanning back over the course of thirty-five years (Pet. Ex. 6), I find that since they were all for incidents unrelated to either alcohol or driving, they are not relevant in this proceeding. See Cardona, OATH 1476/06, mem. dec. at 15 (finding respondent’s guilty plea to charge of disorderly conduct 28 years earlier not relevant to heightened risk determination). Nonetheless, several other factors lead me to conclude that releasing the car to respondent would pose a heightened risk. First is the extreme level of intoxication under which respondent was driving. His breathalyzer test 6 registered a .173%, a result of more than twice the legal limit of .08%, which demonstrates a severe degree of recklessness by Mr. Figueroa, and therefore in and of itself provides justification for retaining the vehicle. Second, the Department credibly established that respondent ran a red light, nearly causing an accident with an oncoming vehicle. The fact that respondent refuses to accept responsibility for running the light and still asserts that he did not do so shows a lack of remorse on his part, irrespective of his statements that he would never drink and drive again. Third, while Mr. Figueroa first denied having ever been arrested for any alcohol related offenses, he later admitted to being arrested on at least two occasions for possessing open containers of alcohol in public within the last several years, although these “arrests” do not appear on his criminal history report. These alcohol related incidents indicate that Mr. Figueroa may very well have a problem with alcohol that he is not admitting. While respondent testified that he needed his vehicle to go shopping in other neighborhoods besides his own, where prices for food and other goods are cheaper, this potential hardship is not a factor to be considered in this proceeding. Police Dep’t v. Busgit, OATH Index No. 1616/05, mem. dec. at 6 (Apr. 4, 2005) (inconvenience to respondent or family members is not considered). Therefore, the Department has proven all elements of the Krimstock Order and is entitled to retain the vehicle pending the forfeiture action.

ORDER The Department is entitled to retain the seized vehicle.

Roberto Velez Chief Administrative Law Judge

October 2, 2007

APPEARANCES:

MICHAEL DECILLIS Attorney for Petitioner

THE LEGAL AID SOCIETY 7

Attorneys for Respondent BY: DAVID FISHER, ESQ.