New York Criminal Lawyer Blog
A New York Criminal Lawyer said that, petitioners, Property Clerk of the Police Department of the City of New York and the New York City Police Department commenced this Article 78 proceeding by order to show cause seeking to annul as arbitrary, capricious and contrary to law a Memorandum Decision issued March 11, 2004 (“OATH decision” as Exhibit 3 to Verified Petition) by respondent, New York City Office of Administrative Trials and Hearings (“OATH”), wherein an Administrative Law Judge directed the NYPD to return a motor vehicle the police seized from respondent, as an instrumentality of a crime and which is being held for forfeiture pursuant to N.Y.C. Adm. Code §14-140.
A New York DWI Lawyer said that, upon signing the order to show cause on March 25, 2004, this Court stayed the effect of the OATH decision pending the hearing. On the March 30th return date, this Court continued the stay pending its determination. At the same time, this Court granted the respective parties’ oral application for more time to file additional papers as well as copies of briefs filed in a federal appeal perfected this year which will examine an issue not implicated in the OATH decision now under review (i.e., seizure of a vehicle as arrest evidence). Parenthetically, this 2004 federal appeal involves the same parties who participated in an earlier, related appeal of a federal court determination, which had initially granted the City of ‘New York’s motion to dismiss.
A New York DUI Defense Lawyer said that, in reversing the district court, the 2nd Circuit Decision, inter alia, ruled that due process requires the NYPD to afford any defendant whose motor vehicle was seized at the time of arrest with the opportunity for a prompt, post-seizure hearing to determine the probable validity and justification for the pre-judgment retention of the vehicle, pendente lite.
A New York Criminal Lawyer said that, in conducting a de novo review of the district court’s dismissal of the complaint, the 2nd Circuit Decision concisely framed the issue decided on appeal: Our primary focus today is the City’s continued retention of vehicles after their warrantless seizure by the police and prior to ultimate resolution of the forfeiture action in court. It is this intermediate deprivation, lasting months or sometimes years without a prompt hearing before a neutral fact-finder that we deem constitutionally infirm. In resolving this issue, the 2nd Circuit Decision held that in “balancing the factors, due process of law requires that all plaintiffs be afforded a prompt post-seizure, pre-judgment hearing to determine whether the City is likely to succeed on the merits of the forfeiture action and whether means short of retention of the vehicle can satisfy the City’s need to preserve the seized property from destruction or sale during the pendency of proceedings.” Significantly, the leit motif of Krimstock is the appellate court’s recognition that due process affords a claimant a constitutional right to “be given an early opportunity to test the probable validity of the further deprivation, including probable cause for the initial seizure.”
A New York DWI Defense Lawyer said that, on remand, the district court eventually issued an Amended Order and Judgment on January 22, 2004 which essentially incorporated the appellate court’s holding and established the procedural and substantive parameters for a Hearing. At ¶ 2 of the January 22nd Order, Chief Judge ruled that an OATH judge at a Hearing must decide three issues: “[1] whether probable cause existed for the arrest of the vehicle operator; [2] whether it is likely that the City will prevail in an action to forfeit the vehicle; and [3] whether it is necessary that the vehicle remain impounded in order to ensure its availability either as evidence or for a judgment of forfeiture.” The January 22nd Order also ruled that the Property Clerk bears the burden of proof by a preponderance of the evidence as to all three issues.
The issue in this case is whether Memorandum Decision issued March 11, 2004 (“OATH decision” as Exhibit 3 to Verified Petition) by respondent is arbitrary, capricious and contrary to law.
Preliminarily, it must be noted that the January 22nd Order at ¶ 7 states, in relevant part: “the decision of the OATH judge will be subject to review in New York State Supreme Court.” As petitioners’ counsel correctly noted, “Article 78 criminal proceedings are used to challenge action (or inaction) by agencies and officers of state and local government.” So, a party aggrieved by a decision of an administrative tribunal such as OATH generally has legal recourse to seek judicial review of same by means of an Article 78 proceeding. Thus, the district court’s use of the term “review” unambiguously supports this avenue of relief for any party adversely affected by a Hearing ruling. Moreover, while a determination of an OATH judge seemingly is an interim order affecting the rights of the parties, pendente lite, it is still a final order issued by an administrative tribunal at the close of a Hearing. And it is precisely the type of action which is properly the subject of judicial review pursuant to CPLR Article 78.
Additionally, this Court finds its consideration of the collateral estoppel issue persuasive in mandating Article 78 review of an OATH decision. Petitioners, in their Memorandum of Law in Support of the Article 78 petition, vigorously argue that an Article 78 proceeding must lie to review an OATH decision; yet, casually, albeit inconsistently, dismiss the notion that an OATH decision has any preclusive effect in any forum (namely, the doctrine of collateral estoppel can never be implicated). The DWI Respondent apparently concurs on this latter point with respect to criminal actions.
In a separate vein and without any legal support, respondent glosses over the potentially preclusive effect an OATH decision could have in a subsequent civil forfeiture action, claiming each party’s alleged right to have a de novo determination, inter alia, on the central issue previously determined at a Hearing, viz., probable cause for the DWAI arrest and initial seizure of the vehicle.
However, regardless of their respective positions on this issue, petitioners and respondent overlook the potential collateral estoppel effect on the central issue of probable cause for the arrest and initial seizure. Indubitably, a de novo determination of whether a crime has been committed that warrants forfeiture of seized property will generally occur in a civil forfeiture action after, and regardless of, the disposition of the underlying criminal action.
But, the circumstances underlying the Hearing are factually and legally distinguishable from a civil forfeiture action initiated concurrently with, or subsequent to, a criminal action. In a criminal action, the Property Clerk is neither a party thereto nor a legal representative with any official role or participation in the underlying prosecution. It is the District Attorney’s Office which appears on behalf of the People with the requisite burden to prove the commission of a crime beyond a reasonable doubt. Here, the Property Clerk and Burnett were participants at the Hearing before an administrative tribunal and will inevitably share actual identity as parties to a civil forfeiture action initiated pursuant to N.Y.C. Adm. Code §14-140. And unlike the criminal action, the Property Clerk will have the same burden of proving by a preponderance of the credible evidence whether there was probable cause to arrest Burnett and seize his Alcohol filled vehicle as part of its prima facie case to obtain forfeiture of the 2000 Lexus; the identical issue and burden of proof the Property Clerk had to address and bear at the hearing.
Putting the issue of Article 78 review aside for the moment, Burnett and other claimants similarly situated, based upon the manner in which the three-pronged issues were litigated and decided before the OATH judge at the Hearing, could conceivably have the right to plead collateral estoppel as a defense to defeat the civil forfeiture action. This would virtually eliminate the Property Clerk’s chances of success. This is so because the issue of probable cause for the arrest and initial seizure of property has to be necessarily decided in the underlying OATH trial regardless of its characterization as a “limited retention hearing” and should be decisive in a civil forfeiture action.
Of course for respondent to succeed with this defense, he will have the “burden of demonstrating the identity of issues in the [subsequent civil forfeiture action and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the OATH trial.
Here, the Property Clerk has had a full and fair opportunity to litigate the issue of probable cause for the arrest. After the OATH judge inquired if there were any applications, counsel for the Property Clerk expressly chose not to make any application for a continuance to presumably bring in P.O. on the adjourned date to appear and testify as to what triggered his reasonable suspicion to approach Burnett as he was exiting his parked vehicle. Before being legally saddled with the preclusive effect of a potential issue-determination, fundamental fairness and due process surely underscore the Property Clerk’s right to seek judicial review and the same right to an Article 78 DWAI review would apply with equal force to a respondent adversely affected by a Hearing ruling as to any of the three issues which must necessarily be decided therein.
The standard of review in an Article 78 proceeding is whether an administrative tribunal’s determination was arbitrary, capricious or an abuse of discretion, was made in violation of a lawful procedure and/or was affected by an error of law. After careful review of the Hearing transcript (annexed to Verified Answer) and documentary evidence, this Court concludes that the OATH decision was neither arbitrary and capricious nor contrary to law. Moreover, the OATH Judge’s well-reasoned analysis reflects a fair interpretation and the prescriptive provisions contained in the subsequent January 22nd Order.
When addressing the issue of whether the January 22nd Order, incorporating the holding, solely required the Property Clerk to prove probable cause for an arrest and not reasonable suspicion to stop a perpetrator and search the vehicle prior to an arrest, as Petitioners argue here, the OATH decision astutely noted that the first framed issue pre-supposes that a Criminal Hearing will usually involve a vehicle seized when its driver is being arrested for operating same in violation of law such as driving while intoxicated DWI. Indeed, the class of plaintiffs conspicuously featured in the 2nd Circuit Decision were DUI criminal defendants and/or innocent owners of seized vehicles. Yet, it can never be successfully argued that the seizure of a vehicle as an instrumentality of a crime pursuant to N.Y.C. Adm. Code §14-140, can only lawfully occur when a crime has been committed during the “operation” of the vehicle. Thus, this Court concurs with the OATH decision’s conclusion that a judge’s “hands should not be tied” by the literal language of these framed issues when addressing a claimant’s due process concerns.
Moreover, the OATH judge’s inquiry as to the justification for the NYPD’s approach to respondent’s vehicle appears to be consistent with analysis of the Fourth Amendment’s role in civil forfeiture cases: We recognize that the likelihood of illegal seizure is reduced in the context of DWI arrests and that the City’s burden in such cases is not onerous. We cannot agree however, that a warrantless arrest is sufficient by itself to ensure the legality of the initial seizure. Some risk of erroneous seizure exists in all cases and in the absence of prompt review by a neutral fact-finder, we are left with grave Fourth Amendment concerns as to the adequacy of the inquiry into probable cause. Our concerns are heightened by the fact that the seizing authority in this case “has a direct pecuniary interest in the outcome of the proceeding.
Finally, because the Property Clerk advised that it was not seeking to retain the vehicle as arrest evidence but was proceeding solely on the basis of forfeiture, the OATH judge never had to resolve the question of whether the January 22nd Order created “an insoluble paradox in cases of vehicles seized solely as arrest evidence.” (In any event, the Second Circuit Court of Appeals will be deciding the “arrest evidence” issue imminently.
Accordingly, the Article 78 petition is hereby denied and the stay enjoining the release of the motor vehicle is hereby vacated. The Property Clerk’s Office is directed to release the 2000 Lexus to respondent within ten (10) days after issuance of this decision and order. This constitutes the decision and order of this Court. Courtesy copies of this decision and order have been mailed to counsel for the parties.
It is well settled that the exclusionary rule is implicated in quasi-criminal actions, civil in form, seeking retention of seized property. If you want to question a certain law seek the help of a New York DWI Defense Attorney and New York Criminal Attorney at Stephen Bilkis and Associates. Call us now.