Police Dep’t v. Achakpo
OATH Index No. 1211/09, mem. dec. (Nov. 19, 2008)
Petitioner failed to prove its likelihood of success at a civil
forfeiture proceeding. The Department is ordered to release the
vehicle.
_______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
-againstDARLINGTON ACHAKPO
Respondent
_______________________________________________________
MEMORANDUM DECISION
JULIO RODRIGUEZ, Administrative Law Judge
Petitioner 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, Darlington Achakpo, is the titled and registered owner of the vehicle.
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 1996 Nissan Maxima at issue, property clerk voucher number B191710V, was seized
by the Department on September 3, 2008, in connection with respondent’s arrest for possession
of a loaded gun in violation of Penal Law sections 265.03(1)(b), 265.03(3), 265.02(1), and
265.01(1). A hearing was held on October 30, 2008.
Petitioner relied on documentary evidence and called respondent as a witness. Petitioner
argued that the police had probable cause to arrest respondent for criminal possession of a
weapon, that it would succeed at a subsequent forfeiture hearing because respondent used the car
to transport a loaded gun, and that retention of the car was necessary to ensure public safety.
-2Respondent, who appeared pro se, testified and submitted documentary evidence.1
Respondent argued that the police lacked probable cause to arrest him and that petitioner would
fail at the forfeiture hearing because respondent did not possess the gun nor did he know that
there was a gun in the car.
The record was held open until close of business on November 13, 2008, for respondent
to submit additional evidence. Pursuant to respondent’s request, the record was further held
open until close of business November 14, 2008, for respondent to reply to petitioner’s
supplemental memorandum.
Based on the reasons discussed below, I find that the Department failed to demonstrate
that it is likely to succeed at the subsequent forfeiture action. Therefore, I conclude that the
Department is not 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: that (i) probable cause existed for
the arrest pursuant to which the vehicle was seized; (ii) it is likely that the Department will
prevail in a civil action for forfeiture of the vehicle; and (iii) 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, 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 forfeiture 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
1
Prior to commencing the hearing and again immediately prior to respondent testifying, I
informed respondent of his right to be represented by counsel and of his Fifth Amendment right
against self-incrimination. I explained to respondent that his testimony at this proceeding may
be used against him in the criminal case which is currently pending and that he may benefit from
having an attorney represent him. I informed respondent that I would adjourn the matter to give
him an opportunity to retain counsel if he so desired. See Rule 103(A)(8) of Appendix A to title
48 of the Rules of the City of New York, the Rules of Conduct for Administrative Law Judges
and Hearing Officers of the City of New York. Respondent declined and insisted on proceeding
with the hearing.
-3(hearing is intended to establish “the validity, or at least the probable validity, of the underlying
claim”)(citation omitted).
It is undisputed that respondent was driving the car at issue on September 3, 2008, when
he was pulled over by the police. It is also undisputed that there were three passengers in the car
with respondent and that a loaded gun was recovered from within the car. The remaining facts
are in dispute.
The Department’s evidence consisted entirely of documents including an arrest report, a
police officer’s complaint report, respondent’s criminal history report, a criminal court
complaint, and an affidavit of the arresting officer (Pet. Exs. 4, 5, 6, 8, 9). No police officers
testified.
According to the Department’s documentary evidence, on September 3, 2008,
respondent was driving his 1996 Nissan Maxima when he was pulled over for speeding. As
police officers approached the car, the arresting officer saw a rear passenger “making furtive
movements. Specifically, [the rear passenger] appeared to be placing something to his right side
and kept looking back at the police car” (Pet. Ex. 9). The arresting officer observed a bag on the
rear passenger seat. A search of the bag revealed a loaded gun and a gravity knife. The bag also
contained a New York State identification card and a social security card bearing the name
“Joanna Douglas,” a female passenger seated in the rear passenger seat. Respondent and the
three occupants of the car were arrested and charged with criminal possession of a weapon in the
second, third, and fourth degrees (Pet. Exs. 4, 5, 8, 9).
Respondent denies that he was speeding and argued that he would have been given a
summons for or charged with speeding if that had been the case. Respondent testified that he did
not know the three occupants that were in his car. He explained that he had been out of work
due to an injury he suffered in an accident earlier in the year. In an effort to “make some extra
cash,” respondent picked up the three co-defendants and was giving them “a ride for cash.”2 As
respondent waited at a red light, an unmarked police car stopped alongside his car. When the
light turned green, respondent initially waited for the police car to go first. Respondent drove off
after waiting a few seconds when the police car did not move. According to respondent, he was
stopped after driving approximately one and a half blocks. An officer asked respondent for his
2
Respondent admitted that he does not have a hack license and that the car at issue is not a legal
taxicab.
-4paperwork and asked that he exit the car. Respondent testified that the officers recovered a
loaded gun from Ms. Douglas’s purse. He did not know if the purse was on the car seat or on
Ms. Douglas’s person when it was searched.
Respondent argued that the gun belonged to Ms. Douglas and that she admitted as much
in a statement she made to the police. To corroborate his testimony, respondent submitted the
arraignment minutes of the criminal matter. The minutes reveal that the District Attorney’s
Office served notice of a statement that Ms. Douglas made to police officers. Ms. Douglas
allegedly told the arresting officer in sum and substance that she found the gun under a car at
169th Street and Washington and that she was not sure what she was going to do with it. Ms.
Douglas acknowledged that the gun was in her purse along with her identification card, social
security card, and a knife, which she explained she carried for “self-defense” (Resp. Ex. C).
Respondent argued that Ms. Douglas was in actual physical possession of the gun,
therefore, the statutory presumption of possession under Penal Law section 265.15(3) was
inapplicable. He further argued that he did not know that Ms. Douglas had a gun in her purse.
The first prong of the Krimstock Order requires that petitioner establish that probable
cause existed for the arrest pursuant to which the vehicle was seized. Petitioner argued that the
police lawfully stopped respondent for speeding and searched the car after officers observed
furtive movement by a rear passenger in the car. Respondent denies speeding and points out that
he was neither issued a summons for nor was he charged with speeding in criminal court. A
determination of whether petitioner established the first prong rests with a credibility
determination. On the record before me, I do not find any reason to discredit the arresting
officer’s affidavit in which he states that he stopped respondent for speeding. Conversely,
respondent has a significant and obvious interest in denying that he was speeding, as this calls
into question the lawfulness of the subsequent search of the car. Additionally, the fact that
respondent was engaged in unlawful activity3 when he was stopped suggests to me that he is not
completely trustworthy. As such, I find the Department’s evidence to be sufficient to establish
the first prong of the Krimstock Order.
The second prong of the Krimstock Order requires that petitioner establish that it is
likely to prevail in a civil action for forfeiture of the vehicle. I disagree with petitioner’s
-5contention that it could prove that respondent possessed the gun based on the statutory
presumption of possession under Penal Law section 265.15(3). Penal Law section 265.15(3)
states in relevant part that “[t]he presence in an automobile, other than a stolen one or a public
omnibus, of any firearm, . . . gravity knife . . ., is presumptive evidence of its possession by
all persons occupying such automobile at the time such weapon, instrument or appliance is
found, except . . . (a) if such weapon, instrument or appliance is found upon the person of one of
the occupants therein.” The use of this presumption is permissive rather than mandatory. See
People v. Abbatiello, 129 Misc. 2d 831, 494 N.Y.S.2d 625 (Sup. Ct. Bronx Co. 1985). Here,
there appears to be no basis to extend the presumption to respondent, particularly in light of Ms.
Douglas’s statement that she found the gun on the street, that she was deciding what to do with
the gun, and that it was recovered from inside her purse.
The judge who presided over
respondent’s arraignment released him on his own recognizance while noting that there is no
assertion that Ms. Douglas made the other occupants of the car aware of what was in her bag.
The judge opined that it is unlikely that the case against the defendants, other than Ms. Douglas,
would go forward after it was fully examined by the District Attorney’s Office.
I agree.
Therefore, I conclude that petitioner is not likely to establish at a civil action for forfeiture that
respondent used the car to commit the crime of criminal possession of a weapon.
The inquiry now becomes whether respondent permitted or suffered the car to be used
to commit a crime, here criminal possession of a weapon. Admin. Code § 14-140(e); see also
Krimstock, 306 F.3d at 48 n.9. A statute that 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.” See Property Clerk, New York City Police Dep't v. Pagano,
170 A.D.2d 30, 35, 573 N.Y.S.2d 658, 661 (1st Dep't 1991). The purpose of the law is to punish
wrongdoers, not innocent parties. Here the Department had to show that respondent “permitted
or suffered” the illegal use of his car: that he knew, or should have known, that his car would be
used in furtherance of a crime.
Respondent testified that he picked up Ms. Douglas and the two other co-defendants to
give them a “ride for cash.” In essence, respondent admitted to being a gypsy cab driver picking
up fares. Respondent steadfastly denied knowing any of the passengers in his car and that Ms.
3
See Admin. Code § 19-506 (Lexis 2008).
-6Douglas had a gun in her purse. I found respondent’s testimony on this point to be credible.
Respondent’s testimony, which was against his penal interest, was candid and forthright.
Furthermore, his testimony was unrebutted. Therefore, I find that petitioner failed to establish
that respondent permitted or suffered the car to be used to commit a crime, here criminal
possession of a weapon.
Having concluded that the Department failed to satisfy its burden under the second prong
of the Krimstock Order, I need not analyze the third prong.
ORDER
The Department is directed to release respondent’s vehicle forthwith.
Julio Rodriguez
Administrative Law Judge
November 19, 2008
APPEARANCES:
MICHAEL DECILLIS
Representative for Petitioner
DARLINGTON ACHAKPO
Respondent, pro se