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Impounded vehicle may be released to co-owner

In this drug crime, respondent spouses are the co-owner of a 2002 Mitsubishi Montero. They acquired the Montero in March 2002 and registered it in Virginia. Since that time, the couple has made monthly payments of $600 drawn from a joint checking account to discharge their remaining debt on the vehicle. At the time these proceedings were initiated in December 2004, the Montero had a fair market value of $16,000.

A New York Drug Crime Criminal Lawyer said that on the evening of October 20, 2004, an individual working in concert with undercover New York City Police Department officers allegedly called the husband and asked him to deliver cocaine to Manhattan. A short time later, respondent husband arrived in the Montero. The man approached the Montero with $40 in pre-recorded buy money, gave that money to him, and returned to the undercover officer with a quantity of cocaine. Respondent drove off but was stopped by other NYPD officers who recovered four bags of cocaine from his pants pocket and the $40 in buy money. The police arrested him, charged him with criminal sale and possession of a controlled substance in the third degree, seized the Montero and impounded it.

As permitted under section 14-140(b) of the Administrative Code of the City of New York, the NYPD’s Property Clerk has retained the seized Montero as “property suspected of having been used as a means of committing crime or employed in aid or furtherance” The Property Clerk has also instituted a civil forfeiture proceeding seeking to confiscate the Montero in order to sell it at an auction. As required, the City informed respondent husband of its intent to impound the Montero throughout the forfeiture proceeding. He then made a timely demand for a hearing, where it is the City’s burden to establish its right to continued impoundment by a preponderance of the evidence.

In December 2004, the spouses appeared at the hearing before an administrative law judge of the City’s Office of Administrative Trials and Hearings (OATH). In addition to evidence regarding the alleged drug crime, the cocaine transaction, the City presented evidence that, over a span of 15 years, ending in 1997, respondent husband had been arrested 10 times and served two prison terms for drug-related offenses. After offering evidence regarding husband’s culpability, the City called respondent to testify in anticipation of her husband’s claim that the vehicle should be returned to his wife because of her status as an innocent co-owner.

During her direct testimony, respondent stated that she married her husband in 2002 and was aware both that her husband was involved in at least one “drug case” and imprisoned for a drug offense prior to their marriage. She further testified that her husband had been arrested on drug crimes during their marriage and that she posted bond in connection with those charges. Turning to her use of the Montero, she testified that she drove the vehicle “every so often,” usually on a “weekly basis.” She also offered testimony regarding the schedule of payments for the Montero and stated that she and her husband had made timely $600 monthly payments, drawn from their joint checking account.

Following the hearing, OATH ordered the Montero released to respondent even though it found that the City had established each of the three prongs of the analysis against respondent. But that showing was immaterial, OATH held, because the City failed to discharge its additional “burden of proof that respondent was not an innocent owner.” According to OATH, release was appropriate because the City offered no evidence that she knew or should have known that her husband was going to use the vehicle to sell narcotics. The City then commenced a CPLR article 78 proceeding in Supreme Court seeking to annul OATH’s determination as “arbitrary, capricious, and contrary to law.”

Supreme Court upheld OATH’s ruling, finding that it is crystal clear that the City has to anticipate and test the merits of a potential innocent owner defense” at a retention hearing.

Accordingly, Supreme Court denied the City’s article 78 petition, lifted a stay enjoining release of the vehicle to respondent and dismissed the proceeding. The Appellate Division reversed. It concluded that the City was entitled to retain the vehicle during the pendency of the forfeiture proceeding despite respondent’s claims of innocent ownership because it “made the requisite showing against respondent husband”

Relying upon our decision the court’s previous decisions, respondent argues that due process requires that OATH balance the hardship that would befall an innocent co-owner due to the loss of a present possessory interest in using an impounded vehicle against the City’s need to retain that vehicle. Petitioner contends, however, that the only process due innocent co-owners is that established, namely a prompt retention hearing wherein the City must establish that “probable cause existed for the defendant’s initial warrantless arrest, that it is likely to succeed on the merits of the forfeiture action, and that retention is necessary to preserve the vehicle from destruction or sale during the pendency of the [forfeiture] proceeding” Petitioner claims that once these findings are made against a “criminal co-owner,” innocent co-ownership “makes no difference.”

The City has broad authority to retain property following seizure. It is entitled to retain “all property suspected of having been used as a means of committing crime or employed in aid or furtherance of crime” Section 14-140(b) “applies to all levels of crime, not just felonies, and to all types of crimes”. Although the City is required to institute a civil forfeiture proceeding within 25 days after a “claimant” makes a formal demand for return of seized property that proceeding is commonly stayed until the conclusion of the underlying criminal action. Thus, seized vehicles may be impounded for many months.

As to the first consideration, an innocent co-owner’s present possessory interest in a vehicle “may be significant” Automobiles are often an essential form of transportation and, in some cases, critical to life necessities, earning a livelihood and obtaining education”. This interest is not diminished by the fact that title to the vehicle is held jointly “(w)hen cars are owned by others or shared among household members seizure may affect not only a culpable defendant, but also other innocent parties” due process protection extends to “any significant property interest”

Contrary to the Appellate Division’s view, the prospect of a proportional payment of future forfeiture proceeds does not, in most cases, sufficiently protect innocent co-owners. That payment may not compensate for an innocent co-owner’s “interest in continued possession and use” of the vehicle during impoundment.

As a second consideration, if an innocent co-owner is not permitted to contest impoundment, there is a substantial risk that erroneous deprivation of a present possessory interest in a vehicle will occur. A post seizure retention hearing is meant not only to determine whether probable cause exists for the initial seizure of the vehicle, but also “whether other measures, short of continued impoundment, would satisfy the legitimate interests of the City in protecting vehicles from sale or destruction” The answer to the second inquiry depends, in part, upon whether “less drastic measures than deprivation pendente lite are available and appropriate”

Innocent co-owners possess highly relevant evidence-unknown to the City-as to that inquiry. For example, impoundment may be inappropriate if an innocent co-owner relies upon continued use of the impounded vehicle to perform essential daily activities-such as earning a livelihood, obtaining an education, or receiving necessary medical care.

Turning to the third consideration, we acknowledge that the government’s interests in preventing an impounded vehicle’s future use as the instrumentality of a crime and preventing against loss, theft, sale, or destruction are significant. But these interests will not always trump an innocent co-owner’s present possessory interest. Instead, OATH must balance both sets of interests to determine whether continued retention to prevent future criminality is “justifiable” and whether means other than retention such as posting a bond or a temporary restraining order prohibiting the sale or destruction of the vehicle would adequately protect the government’s interest in future forfeiture proceeds. This could be considered a misdemeanor.

Thus, the court hold that an innocent co-owner may be entitled to release of an impounded vehicle if such a co-owner can demonstrate by a preponderance of the evidence that he or she: (i) is a registered and/or titled co-owner; (ii) was not a “participant or accomplice” in the underlying offense and did not “permit[]” or “suffer[]” the vehicle to be “used as a means of committing crime or employed in aid or furtherance of crime”; and that (iii) continued deprivation would substantially interfere with his or her ability to obtain critical life necessities, such as earning a livelihood, obtaining an education, or receiving necessary medical care.

Applying the standard announced above to the present case, we conclude that the City established a prima facie case for impoundment by showing probable cause for the Montero’s seizure, a likelihood of success in the forfeiture proceeding and the necessity for continued impoundment. Having made this showing as against Mr. Harris, it does not bear the burden of proving that respondent was not an innocent co-owner. Rather, the burden of proof shifted to respondent and it was incumbent upon her to prove by a preponderance of the evidence that she was an innocent co-owner who would suffer a substantial hard-ship due to continued impoundment. This she failed to do.

Here, the evidence was sufficient to establish respondent’s co-ownership. In addition, the evidence supported the conclusion that respondent was not complicit in the narcotics transaction because there was no proof that she knew or reasonably should have known that the Montero was being used to distribute cocaine in 2004, more than seven years after Mr. Harris’s last drug-related arrest. But respondent failed to show that her access to critical life necessities would suffer substantially as a result of continued impoundment.

When asked to describe her use of the Montero, respondent testified that “it varied” and that she used the car “[e]very so often maybe on a weekly basis.” Thus, respondent failed to show that she depended on the Montero as an “essential form of transportation critical to life necessities”. Accordingly, in this case, the City’s interest in deterrence of future criminal conduct involving the Montero and in preserving it for sale at a later auction outweighed Ms. Harris’s present possessory interest. Therefore, the Appellate Division was correct to hold that release is not warranted here.

Indiscriminate intake of drugs may lead a person to commit a crime. Thereafter, offender may be arrested by police operatives. Here in Stephen Bilkis and Associates, our New York Drug Lawyers sees to it that the rights of an accused when arrested were in accordance with law. Contact us now and receive a proper advice for a proper cause

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