Police Dep t v. Leclerc OATH Index No. 1707/06, mem. dec. (June 14, 2006)

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1 Police Dep t v. Leclerc OATH Index No. 1707/06, mem. dec. (June 14, 2006) Police Department is entitled to retain car seized in connection with primary user s arrest. Arrestee and friend found to be beneficial owners, so nominal owner s innocent owner defense fails. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of POLICE DEPARTMENT Petitioner - against - PATRICIA LECLERC AND STENLO WELCH Respondent MEMORANDUM DEISION ROBERTO VELEZ, Chief 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 of the Administrative Code. Respondent Patricia Leclerc was the titled, but not registered, owner of the vehicle at the time it was seized in connection with the arrest of respondent Stenlo Welch. This proceeding is mandated by Krimstock v. Kelly, 99 Civ (MBM), second amended order and judgment (S.D.N.Y. Dec. 6, 2005) (the "Krimstock Order"); see County of Nassau v. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003). The vehicle in issue, a 2000 Ford, voucher number B079889, was seized on January 29, 2006 in connection with Mr. Welch s arrest for criminal possession of a weapon (Pet. Ex. 5). Following receipt of Ms. Leclerc's demand for a hearing on May 2, 2006, the Department scheduled a hearing for May 16, The matter was adjourned at the request of the Department, and a hearing was held on June 1, Mr. Welch did not appear at the hearing. Ms. Leclerc appeared without counsel and contested the Department's petition. As set forth below, I conclude that the Department is entitled to retain the vehicle.

2 -2- ANALYSIS The Department seeks to sustain its retention of the seized vehicle as the instrumentality of a crime. To do so, 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. Krimstock Order at 3; Canavan, 1 N.Y.3d at , 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 v. Kelly, 306 F.3d 40, (2d Cir. 2002); see Canavan, 1 N.Y.3d at 144 n.3, 770 N.Y.S.2d at 286 n.3 (hearing is intended to establish "the validity, or at least the probable validity, of the underlying claim"; citation omitted). The threshold issue in any proceeding of this nature is whether the respondent established that she is a proper claimant entitled to possession of [the] vehicle (Krimstock Order at 3-4 ). The only evidence Ms. Leclerc presented in support of her ownership claim was a North Carolina Re-assignment of Title showing that the registered owner transferred the vehicle to her (Resp. Ex. A). But there is substantial conflict in the record regarding ownership. A Pennsylvania insurance card, for example, shows Avion Kineve Cornwall to be the titled owner (Resp. Ex. C). Nevertheless, for the purposes of this proceeding, I find that Ms. Leclerc has standing to challenge the seizure as she produced proof that the title was in her name. The Department s case consisted entirely of documentary evidence, which, although hearsay in nature, was properly admissible (Krimstock Order at 3), and which I find to be reliable and credible. The Department's evidence showed that, on January 29, 2006, Ms. Leclerc called 911 to report that Mr. Welch was assaulting her at her residence in violation of an order of protection. According to an affidavit prepared by the arresting officer, Police Officer Paula Smith, and notations in Officer Smith s memo book, Officer Smith responded to Ms. Leclerc s apartment based upon Ms. Leclerc s complaint that Mr. Welch attempted to assault her and that there was a gun in her vehicle (Pet. Exs. 7e & 9). Mr. Welch did not cooperate with the police officers and was arrested for resisting

3 -3- arrest and criminal contempt (Pet. Ex. 1). Based upon statements by Ms. Leclerc and Mr. Welch that there was a loaded gun in the vehicle, the vehicle was brought to the station house. During the processing of the arrest, Mr. Welch stated that the gun in the vehicle belonged to him (Pet. Ex. 9). When a sergeant gained access to the vehicle, a loaded gun was recovered where Ms. Leclerc and Mr. Welch said it would be found (Pet. Ex. 9). Mr. Welch was subsequently arrested for criminal possession of a weapon and unlawful possession of marijuana (Pet. Ex. 5). Mr. Cornwall later arrived at the station with keys to the vehicle. With respect to the first element of the Krimstock order, I find that the documentary evidence submitted by the Department clearly established probable cause for Mr. Welch s arrest. The same evidence also satisfactorily established the Department s likelihood of success in a subsequent civil forfeiture action on the basis that Mr. Welch used the seized vehicle as the instrumentality of a crime, which establishes the second element. See Police Dep't v. Rice, OATH Index No. 1709/05, mem. dec. at 7-8 (Apr. 21, 2005) (possession of drugs and weapons in vehicle renders vehicle instrumentality of the crime of transporting drugs and weapons). The third element that the Department is entitled to retain the vehicle pending final outcome of the civil forfeiture action requires proof that retention is necessary to preserve the vehicle from loss, sale or destruction or that retention is necessary to protect the public's safety. We have held that where the return of the vehicle to the respondent would pose a heightened risk to the public safety, such risk satisfies this element. See, e.g., Police Dep't v. McFarland, OATH Index No. 1124/04, mem. dec. at 2, citing Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at We have also held that such a heightened risk might be evidenced, for instance, by the circumstances of the crime itself (e.g., 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)). The Department challenges Ms. Leclerc s claim for the return of the vehicle by asserting that Messrs. Welch and Cornwall are the actual users and beneficial owners 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. Bloise, OATH Index No. 2138/04, mem. dec. (June 17, 2004). Beneficial ownership or a possessory interest in a vehicle

4 -4- 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). I find that the Department established by a preponderance of the credible evidence that Messrs. Welch and Cornwall are the beneficial owners of the vehicle. Ms. Leclerc testified that she purchased the vehicle in North Carolina in March She paid $2,500 for the vehicle, which has a book value of $6,000, and she produced a letter from her mother stating that her mother provided the money for the purchase (Resp. Ex. B). Ms. Leclerc arranged to drive it to New York with a friend because she did not have a driver s license. She claims that the car sat unused in a parking space until October 2005, when Mr. Welch arranged for his friend Mr. Cornwall to temporarily insure and register the vehicle. Ms. Leclerc did not explain why she did not insure and register the vehicle herself, nor was it explained why the insurance card with Mr. Cornwall s name is from Pennsylvania. Ms. Leclerc, at the time she purchased the vehicle, and for the entire period she claims to have been its owner, did not have a driver s license. She received her license in February 2006, after the vehicle s seizure. Considering this, it is doubtful that she could have been a regular user of the vehicle. She claims to have sometimes used the vehicle on the weekends, but she did not explain how and for what purpose she did so. The lack of a driver s license would have severely limited her opportunities to use the vehicle legally. She also did not use it to travel to school, having testified that Mr. Cornwall used the vehicle when she would go to school. There is therefore no basis in the record to find that Ms. Leclerc used the vehicle regularly or as her primary mode of transportation. See Police Dep't v. Torres, OATH Index No. 1412/06, mem. dec. (Mar. 31, 2006) (finding that the driver was not a beneficial owner where the owner used the vehicle as her primary mode of transportation); Police Dep't v. Murray, OATH Index No. 1144/06, mem. dec. (Jan. 31, 2006) (holding that the driver, not the titled owner, was the beneficial owner of the vehicle where the driver used the vehicle as his primary mode of transportation, and where the title owner used the vehicle only in limited circumstances). Ms. Leclerc also testified that Mr. Welch used the vehicle to drive to work, and Mr. Cornwall used it as often as four days a week. Both individuals therefore used the vehicle far more often than she testifies she did. See id. (finding that the driver was not a

5 -5- beneficial owner where he was allowed to use the vehicle only in limited circumstances). Ms. Leclerc did not herself insure or register the vehicle, nor did she seek to have the title and registration transferred to her name in New York. Instead, Mr. Stenlo arranged for his friend Mr. Cornwall to temporarily insure and register the vehicle. See Police Dep't v. Bacon, OATH Index No. 551/06, mem. dec. (Oct. 19, 2005) (The driver was the beneficial owner of the vehicle because he made the monthly loan and insurance payments for the vehicle). Ms. Leclerc further testified that the police could not open the vehicle when she called them because she could not find her keys. The police had to take the vehicle to the precinct and wait for a special unit to open it. That Mr. Cornwall was able to go down to the precinct that night with keys to the car, while Ms. Leclerc could not even give the police access to it, is additional evidence that Ms. Leclerc did not have dominion and control over the car. See Police Dep't v. Torres, OATH Index No. 1412/06, mem. dec. (Mar. 31, 2006) (fact that there was only one set of keys relevant to determining who had dominion and control). All of this points to an arrangement in which Ms. Leclerc purchased the vehicle, perhaps taking money from her mother to put up all or part of the purchase price (see Resp. Ex. B), for the use of Mr. Welch, with Mr. Cornwall perhaps subsequently being brought into the arrangement by Mr. Welch. Mr. Cornwall, upon being questioned by police after trying to claim the vehicle by presenting documents relating to the vehicle in his name, stated that the vehicle belonged to Mr. Welch (Pet Ex. 9). To summarize, Ms. Leclerc was not the primary user of the vehicle, she did not register or insure the vehicle, she admits that it was used frequently by Messrs. Welch and Cornwall, and her own testimony provides evidence that someone other than her had dominion and control over the vehicle. In addition, Mr. Cornwall s statements contradict Ms. Leclerc s claim of ownership. The Department has established by a preponderance of the credible evidence that Ms. Leclerc owned the vehicle for the benefit of Messrs. Welch and Cornwall. Therefore, the vehicle should not be returned to Ms. Leclerc.

6 -6- ORDER The Department is entitled to retain the seized vehicle. June 14, 2006 APPEARANCES: LAWRENCE V. SISTA, ESQ. Attorney for Petitioner PATRICIA LECLERC pro se Roberto Velez Chief Administrative Law Judge