Police Dep't v. Hill
OATH Index No. 633/07, mem. dec. (Oct. 24, 2006)
Petitioner Police Department is not entitled to retain respondent’s
vehicle pending the outcome of civil forfeiture action as petitioner
did not meet its burden of showing that non-driver owner was not
an innocent owner.
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
-againstLARHONDA HILL
Respondent
______________________________________________________
MEMORANDUM DECISION
ROBERTO VELEZ, Chief Administrative Law Judge
Petitioner, the Police Department, brings 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 Larhonda Hill is the registered and titled owner of the seized
vehicle, and her brother, Derrick Hill, was the driver at the time when 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), as amended December 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).
The vehicle in issue, a 2000 Chevrolet Tahoe (Voucher # B139773), was seized by the
Department on September 15, 2006 in connection with Mr. Hill’s arrest for criminal possession
of a loaded firearm in the third degree and criminal possession of a controlled substance under
Penal Law sections 265.02 and 220.03 (Pet. Ex. 1 and 2).
Following receipt of the respondent's demand for a hearing, the Department scheduled a
hearing for September 28, 2006 and, at the parties’ mutual request, the case was adjourned to
-2October 19, 2006.
Respondent, represented by counsel, appeared and challenged the
Department’s right to retain the vehicle. As set forth below, I conclude that the Department is
not entitled to retain the vehicle.
ANALYSIS
In the instant case, the Department seeks to sustain its retention of the seized vehicle as
the instrumentality of a crime, not as evidence in a criminal case. Therefore, the Department
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 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 of forfeiture.
Canavan, 1 N.Y.3d at 144-145, 770 N.Y.S.2d at 286; Krimstock Order, 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 69, 70.
The Department argues that Mr. Hill’s guilty plea to an arrest for possession of a loaded
firearm and crack cocaine (Pet. Ex. 5) clearly establishes the first two prongs of the Krimstock
order. The Department is correct. It is well settled that a conviction precludes respondent from
challenging the basis for the arrest as well as the merits if the criminal charge itself. 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).
As to the third prong, the Department argues that retention is necessary to protect the
public’s safety. Specifically, the Department argues that Mr. Hill is the beneficial owner and, if
returned, Mr. Hill will use the vehicle to commit further crimes. In response, Ms. Hill argues
that she is the actual and innocent owner. Property Clerk, New York City Police Dep't v.
Pagano, 170 A.D.2d 30, 573 N.Y.S.2d 658 (1st Dep't 1991); Police Dep't v. Harris, OATH
Index No. 971/05, mem. dec. (Dec. 27, 2004), aff'd, 7 Misc. 3d 1032A, 801 N.Y.S. 2d 241 (Sup.
Ct. N.Y. Co. 2005). The Department bears the burden of proving that Ms. Hill is not an innocent
owner and must show that Ms. Hill “permitted or suffered” the illegal use of the property; that is,
that she knew, or should have known, that her vehicle would be used in furtherance of a crime.
-3Pagano, 170 A.D.2d at 36, 573 N.Y.S.2d at 662 (finding titled owner was innocent owner where
there was no evidence that the driver had previously engaged in criminal behavior involving a
vehicle, despite driver’s non-criminal traffic violations). This burden was not met.
The Department called Ms. Hill as a witness to negate the innocent owner defense.
However, Ms. Hill, who is a self-employed hair dresser, credibly testified that she allowed her
brother use of the vehicle once or twice per week for the last several months. She was never
aware that Mr. Hill was going to use the vehicle to commit the crimes in question or any other
crimes. Ms. Hill believed that Mr. Hill used the car for legitimate activities. Ms. Hill also
testified that, to her knowledge, Mr. Hill has never been arrested. Mr. Hill’s criminal history
report confirms that he was arrested only once for the instant case (Pet. Ex. 5).
The Department challenged Ms. Hill’s claim of being an innocent owner by asserting that
Mr. Hill is the beneficial owner of the vehicle. Beneficial ownership refers to a situation where
the vehicle’s actual user is distinct from the nominal owner. See Police Dep't v. Bacon, OATH
Index No. 551/06, mem. dec. (Oct. 19, 2005) (finding driver was the beneficial owner where he
was the sole borrower on the car loan, payments on the loan were made from the driver’s bank
account, and titled owner’s bank records did not support her statement that she provided the
driver with funds to make the car payments); Police Dep't v. Bloise, OATH Index No. 2138/04,
mem. dec. (June 17, 2004) (finding son of titled owner was beneficial owner because car had
been modified for high speed driving). Beneficial ownership or a possessory interest in a vehicle
may be established by dominion and control over the vehicle. See Vergari v. Kraisky, 120
A.D.2d 739, 502 N.Y.S.2d 788 (2d Dep't 1986).
Certain factors have been evaluated to determine whether or not a person is a beneficial
owner of a vehicle. Such factors include: the name on the documents related to ownership, the
person who bears the expense for the vehicle or for the insurance, the primary user of the
vehicle, how consistently the person uses the vehicle, and how many vehicles the person owns.
See Police Dep't v. Torres, OATH Index No. 1412/06, mem. dec. (Mar. 31, 2006) (finding
nephew was not beneficial owner of aunt’s vehicle because his name did not appear on any
documents related to ownership, he did not make loan payments on the vehicle, aunt was the
primary user of the vehicle and the vehicle was her primary mode of transportation).
In the current case, the Department has not established that Mr. Hill has a possessory
interest in the vehicle or that he exercised dominion and control over the vehicle. Mr. Hill’s
-4name does not appear on any documents related to the ownership of the vehicle, nor does Mr.
Hill assist Ms. Hill in making payments for insurance or car maintenance. Ms. Hill’s name
appears on all these documents (Pet. Exs. 6; Resp. Exs. A & B). In the Department’s favor, Ms.
Hill did testify that she purchased a second car and used it to commute to her business.
However, Ms. Hill credibly testified that she only allowed Mr. Hill to borrow the vehicle once or
twice per week in the last several months. However, the majority of the factors are in Ms Hill’s
favor to support that her claim that she has dominion and control over the vehicle.
The Department attempted to undermine Ms. Hill’s credibility by stating that Ms. Hill
lied to the New York State Department of Motor Vehicle (“DMV”) by failing to inform it of her
change of address. I find that Ms. Hill’s failure to notify DMV of the address change has no
bearing on her credibility.
The Department has failed to prove that Mr. Hill is the beneficial owner of the vehicle or
that Ms. Hill is not an innocent owner. As a result, the Department is not entitled to retain the
vehicle pending the forfeiture action.
ORDER
The Department is not entitled to retain the seized vehicle.
Roberto Velez
Chief Administrative Law Judge
October 24 2006
APPEARANCES:
LAWRENCE V. SISTA, ESQ.
Attorney for Petitioner
GARY SCHOER, ESQ.
Attorney for Respondent