Police Dep’t v. Cruz
OATH Index No. 1643/06, mem. dec. (Apr. 25, 2006)
Petitioner is entitled to retain custody of seized vehicle.
Respondent’s claim of illegal vehicle search was
extinguished by his conviction on the underlying criminal
charges; retention necessary to avoid risk to public safety.
_________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against ANGEL CRUZ
Respondent
_________________________________________________
MEMORANDUM DECISION
ROBERTO VELEZ, Chief Administrative Law Judge
Petitioner, the Police Department, brought this proceeding to determine its right to
retain a vehicle, a 2003 Chevrolet Trail Blazer (Voucher No. B026101), seized as the
alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code
(Pet. Ex. 8-b). Respondent, Angel Cruz, is the owner of the vehicle and holds both title
and registration to the car (Pet. Ex. 6). 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).
Petitioner seized respondent’s vehicle on January 27, 2006, in connection with his
arrest for criminal possession of a weapon in the second and third degrees and menacing
in the third degree under Penal Law sections 265.03(1)(b), 265.02(4), and 120.15 (Pet.
Exs. 1-3). Following receipt of respondent’s demand for a hearing on April 6, 2006,
petitioner scheduled the instant proceeding for April 20, 2006 (Pet. Ex. 8). Respondent,
represented by counsel, appeared at the hearing and challenged petitioner’s right to retain
-2the vehicle until such time as a civil forfeiture action is commenced. Upon evaluating the
evidence, I find that petitioner is entitled to retain custody of the seized vehicle pending
the outcome of the forfeiture action.
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 to ensure its
availability for a judgment in a civil forfeiture action. County of Nassau v. Canavan, 1
N.Y.3d at 144-46, 770 N.Y.S.2d at 286; Krimstock Order ¶ 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 69,
70.
Here, the Department relied exclusively on documentary, hearsay evidence
admissible under section 1-46 of the rules of this tribunal and permissible under
paragraph 3 of the Krimstock Order. The Department has met its burden on all three
prongs of the Krimstock analysis.
The arrest took place on January 27, 2006, at approximately 8:45 p.m. According
to respondent, he got into a “heated” argument with a parking attendant over a $51.00
parking fee. Respondent testified that he told the attendant “you should be shot for
gauging people” and asked to speak to the manager. While he was waiting, the police
arrived. According to the arrest report and complaint, respondent threatened Jonathan
Landrau with use of force in that he stated “if you want problems I will get my gun” (Pet.
Exs. 1, 2 and 3). According to respondent, the police searched his vehicle, found bullets
in a brief case, and asked him if there was a gun in the car. Respondent advised them that
a gun was in a storage compartment under the back seat behind the driver’s side.
Respondent was placed under arrest and the police took possession of a loaded .38 caliber
revolver and respondent’s vehicle (Pet. Ex. 1).
Although respondent argued that the search of the vehicle was not legally justified
and without his consent, this defense was extinguished upon his conviction in Supreme
-3Court. On March 23, 2006, respondent pled guilty to criminal possession of a weapon in
the fourth degree and was sentenced to time served (Pet. Ex. 4).
We have previously held that 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); Police Dep’t v. McFarland, OATH Index No. 1124/04,
mem. dec. at 2 (Feb. 24, 2004) (first two Krimstock prongs established because “criminal
conviction precludes challenge to the basis for the arrest as well as to the merits of the
criminal charge itself,” citations omitted); Police Dep’t v. Bugsit, OATH Index No.
1616/05, mem. dec. at 3 (Apr. 4, 2005); Police Dep’t v. Pierre-Louis, OATH Index No.
1452/04, mem. dec. at 2 (Mar. 24, 2004).
Accordingly, the criminal conviction
establishes the first two elements necessary for retention of the vehicle: probable cause
for respondent’s arrest, as well as the likelihood that petitioner will prevail in a civil
forfeiture action regarding the seized vehicle.
Concerning the third element that petitioner must prove in order to retain
respondent's vehicle, i.e., the necessity that the vehicle be retained pending final
judgment in the civil forfeiture action, we have held that this element may be satisfied by
the showing of a heightened risk to public safety if the vehicle were to be returned. See
Canavan, 1 N.Y.3d 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, 2000). Petitioner made a showing of
such heightened risk in this case.
This tribunal has recognized that felony crimes relating to the possession of
loaded firearms are those which implicate public safety concerns and justify the retention
of vehicles used as an instrumentality in those crimes. Police Dep’t v. Harris, OATH
Index No. 983/06, mem. dec. at 4 (Feb. 16, 2006); Police Dep’t v. Alickaj, OATH Index
No. 221/06, mem. dec. at 4 (Aug. 3, 2005); Police Dep’t v. Rice, OATH Index No.
1709/05, mem. dec. at 8 (Apr. 21, 2005). Here, respondent pled guilty to criminal
-4possession of a weapon in the fourth degree under Penal Law section 265.01, a Class A
misdemeanor.
I also found respondent’s explanation about his possession of the gun incredible.
Respondent testified that in May 2005 he and his girl friend purchased a restaurant.
Around Thanksgiving of that year, respondent’s girl friend was cleaning the cellar of the
restaurant and found the gun. When advised about the gun, respondent put it in his car
for safe keeping until he could turn it in to the police. As argued by petitioner’s counsel,
respondent never gave the gun to police and by his own admission had been driving
around for two months with a loaded weapon in his vehicle. Respondent’s testimony that
the delay in turning in the weapon had been due to the holidays was self-serving and
unpersuasive. Respondent admitted that police officers eat regularly in his restaurant and
that his girl friend is friends with “a lot of police officers.” In addition, respondent’s
testimony and his demeanor demonstrated a lack of appreciation about the seriousness of
driving around the City of New York with an unlicensed loaded weapon in easy reach.
For example respondent stated that this “is a matter of principal,” that what “I did was not
so terrible or so bad that my car has to be taken this way away from me,” and that “I have
no rights . . . and on one heated argument I lose my whole life, I think that is very unfair.”
Indeed, respondent’s unwillingness to take any responsibility for his actions, which led to
his arrest, and his admissions that he gets into arguments with people and that he does not
“normally” threaten people with violence, raises a genuine public safety concern.
Accordingly I find that petitioner has demonstrated a need to retain the vehicle to
maintain public safety.
ORDER
The Department is entitled to retain respondent's vehicle pending the outcome of
a civil forfeiture action.
Roberto Velez
Chief Administrative Law Judge
April 25, 2006
APPEARANCES:
-5LARRY SISTA, ESQ.
Attorney for Petitioner
LEON J. QUITERO, ESQ.
Attorney for Respondent