Police Dep’t v. Strunk
OATH Index No. 1705/09, mem. dec. (Dec. 19, 2008)
Vehicle was seized as the instrumentality of a crime in connection
with passenger’s arrest for prostitution. Petitioner failed to
establish that retention of respondent’s vehicle is necessary to
protect public safety. Vehicle ordered released.
________________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
-againstKERRY STRUNK
Respondent
______________________________________________________
MEMORANDUM DECISION
KARA J. MILLER, 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. Respondent, Kerry Strunk, the titled and registered owner, was present
when the vehicle was seized. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041
(HB), third amended order and judgment (S.D.N.Y. Sept. 27, 2007) (“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 issue, a 1996 Ford Explorer, voucher number B180306, was seized by the
Department on November 7, 2008, in connection with the arrest of Stephanie Turcotte, a
passenger in the vehicle, for prostitution in violation of Penal Law section 230.00, a class B
misdemeanor (Pet. Exs. 1, 2, 3, 4, 7, 8). Following receipt of respondent’s demand for a hearing
on November 26, 2008, the Department scheduled a hearing for December 8, 2008, at 9:30 a.m.
(Pet. Exs. 4, 7). On December 8, 2008, respondent requested an adjournment of the hearing so
that her attorney could further prepare. The trial was adjourned to December 15, 2008, at 2:00
-2p.m., at which time respondent appeared with counsel. The record was held open for petitioner
to submit a copy of the signed criminal court complaint relating to Ms. Turcotte’s arrest.
Petitioner instead submitted a copy of the prostitution supporting deposition, upon which the
criminal court complaint was based, and the record was closed on December 18, 2008.
For the reasons set forth below, I conclude that the Department is not entitled to retain the
vehicle and order that the vehicle be released.
ANALYSIS
Petitioner seeks to retain custody of the subject vehicle as the instrumentality of a crime.
Under the Krimstock Order, petitioner 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 petitioner will prevail in a civil action for the
forfeiture of the vehicle; and (iii) that it is necessary that the vehicle remain impounded pending
final judgment in the forfeiture action. Krimstock Order ¶ 3; Canavan, 1 N.Y.3d at 144-45, 770
N.Y.S.2d at 286. 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, 306 F.3d at 69, 70.
Petitioner presented documentary evidence and called respondent to testify. Respondent
presented the testimony of Ms. Turcotte.
Respondent described herself as a “working girl.”
She stated that she has known
Turcotte, who is also a “working girl,” socially for many years. On the night her car was seized,
respondent, Turcotte, and another friend, Jessica, met in Queens to go to a nightclub located on
the west side of Manhattan. Because respondent was tired, Jessica drove respondent’s car while
respondent slept in the back. Respondent testified that she had just woken up and gotten out of
her car to have a cigarette when police officers surrounded the car. Respondent was not arrested.
Turcotte, who is now 27, testified that she has been a prostitute since she was 18. She
lives in Pennsylvania but does not drive or have a driver’s license. She testified that on the night
she was arrested, she, respondent, and Jessica, who was driving respondent’s car, were going to a
nightclub. On the way, they stopped at a deli on 28th Street and Lexington Avenue in order for
Turcotte to get coffee. On the way back to the car from the deli, Turcotte saw a man walking
down the street. Turcotte thought she could possibly make some extra money, so she handed
-3him her business card, which contained her phone number, and told him that she did not want to
talk to him on the street. According to Turcotte, he walked off around the street corner. The
man subsequently called Turcotte, who was still standing outside the car, about one or two
minutes later. Turcotte told him to meet her at a nearby hotel, but did not say anything about the
price. The man came back around the corner and towards Turcotte. Turcotte began walking
towards him but realized that she had forgotten her purse in the car. She walked back to the car
and reached in to get her purse. It was at that time that the car was surrounded by police officers,
including the man, who was actually an undercover officer. Turcotte was arrested. She pleaded
guilty to prostitution and was sentenced to time served and court costs. On cross examination,
Turcotte testified that she did not remember whether she introduced the man to respondent or
Jessica. When questioned by the tribunal as to the temperature that night, Turcotte answered, “It
was cold. It was not real cold, but it was cold,” but nonetheless reconfirmed that she was outside
respondent’s car while she waited to see if the man would call her.
The Department’s documentary evidence, an arrest report (Pet. Ex. 1) and complaint
follow-up informational (“informational”) (Pet. Ex. 8), contradicted both respondent’s and
Turcotte’s testimonies as to where Turcotte was when she spoke to the undercover officer.
According to the arrest report, the undercover officer called Turcotte’s cell phone and made an
agreement for sexual intercourse for $300. Turcotte then instructed the officer to proceed to
respondent’s vehicle, where, the arrest report states, they again reached an agreement for sexual
intercourse for $300 while Turcotte was sitting in the vehicle (Pet. Ex. 1). The arrest report does
not indicate how the undercover officer came into possession of Turcotte’s cell phone number.
The informational goes into more detail: At about 11:20 p.m., the undercover officer met
Turcotte in front of 130 East 28th Street.
She was sitting in the front passenger seat of
respondent’s vehicle. After a brief conversation, Turcotte introduced herself and two other
females in the vehicle, and handed the undercover officer her business card. She instructed him
to call her. The officer asked how much it would cost, to which respondent answered, “full
service?” The officer asked what full service included. Turcotte told him, “anything you want
for one hour.” Turcotte said that she provided the condoms. She told him they would go to a
hotel room on 24th Street and asked him to pay the hotel cost. The undercover officer stated he
would. Turcotte exited the vehicle and said they would take a taxi to the hotel. At that time, the
-4undercover officer signaled the field team, which converged and arrested Turcotte next to the
vehicle.
The informational describes only one conversation that took place between Turcotte and
the arresting officer, which took place in person at respondent’s vehicle, while the arrest report
describes two conversations, one by cell phone followed by one in person at respondent’s
vehicle. Nonetheless, the facts essential to establishing the crime of prostitution as presented in
the two documents do not necessarily contradict each other: Turcotte reached an agreement with
the undercover officer while she was in respondent’s vehicle. See Police Dep’t v. Lord, OATH
Index No. 942/08, mem. dec. at 5-6 (Dec. 6, 2007) (finding arrest report, complaint report, and
criminal complaint not inconsistent where each alone provided sufficient justification for the
arresting officer to have arrested respondent).
I find the version of events as put forth in the Department’s documentary evidence to be
more likely what occurred than the version testified to by respondent and Turcotte. It seems
unlikely that Turcotte would wait in what she described as cold weather for a man to possibly
call her when she could instead wait in respondent’s vehicle. Additionally, Turcotte testified that
she planned on keeping the potential prostitution transaction a secret from respondent and
Jessica, which could serve as an explanation for her waiting outside the car, yet she did not
testify as to what explanation she would have given them for her disappearance when they were
allegedly planning on going to a nightclub.
As to the first prong of the Krimstock Order, based on Ms. Turcotte’s testimony at trial,
as well as her conviction for the crime of prostitution, there was probable cause for her arrest.
See Police Dep’t v. Patterson, OATH Index No. 1424/09, mem. dec. at 3 (Nov. 14, 2008) (“a
guilty plea resolves all issues relating to the underlying arrest in these proceedings and
essentially establishes the first two Krimstock prongs”); Police Dep’t v. Ojeda-Burgos, OATH
Index No. 1959/05, mem. dec. at 3 (June 9, 2005); Police Dep’t v. Ayala, OATH Index No.
1539/05, mem. dec. at 4 (Apr. 5, 2005) (citing Berman v. Turecki, 885 F. Supp. 528, 533
(S.D.N.Y. 1995), aff’d without op., 1996 U.S. App. LEXIS 3026 (2d Cir. 1996) (“[A] guilty plea
‘disposes of any issue pertaining to the constitutionality of [party’s] arrest, interrogation, search
and prosecution.’”) (citations omitted)). Accordingly, here, the first prong of the Krimstock
Order is established.
-5To establish the second element of the Krimstock Order, petitioner 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 aid or in furtherance of crime….”
Admin. Code § 14-140[e][1] (Lexis 2008). The purpose of this section is to punish wrongdoers,
not innocent parties. Property Clerk v. Pagano, 170 A.D.2d 30, 35, 573 N.Y.S.2d 658, 661 (1st
Dep’t 1991) (“The courts have long held that a statute which holds a person liable for having
permitted or suffered a certain activity may only be enforced against one who knew, or should
have known, that the activity would take place”). Here, respondent testified that she was
sleeping in the back of her car and awoke only to find police officers arresting Turcotte.
However, the Department’s documentary evidence establishes that respondent was present and
awake in the car—she was in fact introduced to the undercover officer—while Turcotte
negotiated an agreement with him. As I credit the documentary evidence over both respondent’s
and Turcotte’s testimonies, I find that respondent permitted Turcotte to use her vehicle in
furtherance of a crime. Therefore, the Department has established the second prong of the
Krimstock Order.
Finally, petitioner 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 Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86). This tribunal has found
heightened risk to public safety may be established by the circumstances of the crime or the
driver’s history. See, e.g., Police Dep’t v. Harris, OATH Index No. 983/06, mem. dec. at 4 (Feb.
16, 2006) (respondent arrested for “serious felony offense,” including the alleged reckless
endangerment and serious misdemeanors such as menacing and the criminal possession of a
firearm); Police Dep’t v. Serrano, OATH Index No. 499/06, mem. dec. at 5 (Sept. 22, 2005)
(breathalyzer readings of .207% and .239% on the retest were so high that they indicated a
certain recklessness); Police Dep’t v. Joyner, OATH Index No. 1327/04, mem. dec. (Mar. 11,
2004) (necessity to retain vehicle established by respondent’s driving at more than twice the
speed limit); 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); Lord, OATH 942/08 (driver’s third
drinking and driving arrest); Police Dep’t v. Busgit, OATH Index No. 1616/05, mem. dec. (Apr.
4, 2005) (respondent’s two DWI arrests established heightened risk).
-6Prostitution is a serious crime with real consequences, see People v. Sato, 17 Misc. 3d
1120A, 1120A, 851 N.Y.S.2d 73 (Crim. Ct. N.Y. Co. 2007) (rejecting contention that
prostitution is a victimless crime), the Department, however, failed to provide evidence that
returning this car to this respondent would result in a heightened risk to public safety or health.
Counsel for the Department analogized the potential risk here to that where vehicles have been
seized in connection with the crime of selling counterfeit goods. We have repeatedly held,
however, that releasing vehicles that were used in selling counterfeit goods generally does not
pose a risk to public safety or health. Police Dep’t v. Weng, OATH Index No. 1472/08, mem.
dec. (Feb. 6, 2008) (vehicle seized in connection with respondent’s arrest for selling counterfeit
handbags released because petitioner failed to establish that retention of respondent’s vehicle
was necessary to protect public safety); Police Dep’t v. Xia, OATH Index No. 128/08, mem. dec.
(July 18, 2007). Instead, we have retained vehicles used to sell counterfeit goods only when the
Department established that the owner had a history of using the vehicle to sell counterfeit
goods. See Police Dep’t v. Yun Huang, OATH Index No. 2519/08, mem. dec. (June 5, 2008)
(finding a substantial risk that criminal activity would resume because driver had an extensive
history of similar unlawful conduct with the same vehicle).
Here, the Department has not proven a pattern of illegal conduct in respondent’s vehicle.
Respondent’s repository inquiry indicated that she has been convicted 207 times, a majority of
which were for the crime of prostitution (Pet. Ex. 9). While her criminal history is extensive, the
Department did not establish that any of the convictions involved crimes in which a vehicle was
involved. Although respondent admitted that she had a different car seized in connection with an
August 27, 2004, arrest for prostitution, which resulted in a conviction, the Department did not
ascertain the circumstances surrounding the seizure, such as whether respondent had even
contested the seizure. This tribunal has repeatedly explained that the mere fact of a criminal
history or other criminal conduct does not in all instances signify that releasing the seized vehicle
to respondent would pose a heightened risk. See, e.g., Police Dep’t v. Cruz, OATH Index No.
339/06, mem. dec. (Aug. 19, 2005) (where respondent was arrested for DWI, attempted murder,
and assault, his first time DWI and evidence of the assault was not sufficient to demonstrate a
heightened risk); Police Dep’t v. Ferrer, OATH Index No. 977/08, mem. dec. at 4 (Nov. 14,
2007) (finding no evidence that respondent’s prior criminal conduct involved or was facilitated
-7by his use of a motor vehicle, and that his prior convictions for criminal possession of a
controlled substance, by themselves, were insufficient evidence of a heightened risk).
Accordingly, I find that the Department has failed to meet its burden in demonstrating
that returning the vehicle to respondent would pose a heightened risk to public safety or health.
ORDER
The Department is not entitled to retain the seized vehicle.
Kara J. Miller
Administrative Law Judge
December 19, 2008
APPEARANCES:
BRIAN DERR, ESQ.
Attorney for Petitioner
DALE I. FREDERICK, ESQ.
Attorney for Respondent