Police Dep't v. Morgan OATH Index No. 865/15, mem. dec. (Oct. 27, 2014)

Police Dep't v. Morgan OATH Index No. 865/15, mem. dec. (Oct. 27, 2014) Petitioner is entitled to retain custody of seized vehicle having demonstrated that respondent is not an innocent owner. Vehicle ordered to be retained. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of POLICE DEPARTMENT Petitioner - against - JABUKI MORGAN and NICOLE BECKFORD Respondents MEMORANDUM DECISION JOHN B. SPOONER, 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 14-140 of the Administrative Code. Respondent Jabuki Morgan was arrested driving the vehicle, while respondent Nicole Beckford is the titled owner of the vehicle. This proceeding is mandated by Krimstock v. Kelly, 2007 U.S. Dist LEXIS 82612 (S.D.N.Y. Sept. 27, 2007) (3d amended order and judgment) (the Krimstock Order ). See generally Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002), cert. denied, 539 U.S. 969 (2003); County of Nassau v. Canavan, 1 N.Y.3d 134 (2003). The Department seized the vehicle, a 2004 Acura, property clerk voucher No. 2000323351, on May 22, 2014, following the arrest of Mr. Morgan on attempted second degree murder charges (Pet. Exs. 1, 5). Respondent s demand for a hearing was received by the Department on October 9, 2014 (Pet. Ex. 8). The hearing was held before me on October 23, 2014. At the hearing, petitioner presented a number of records and a video. Ms. Beckford testified that, despite Mr. Morgan being arrested in the vehicle twice within the last year, she is

-2- the sole titled and registered owner of the vehicle. 1 Based upon the hearing record and for the reasons set forth below, I conclude that petitioner is entitled to retain custody of the vehicle pending the outcome of a civil forfeiture action. 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: (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, 3; Canavan, 1 N.Y.3d at 144-45. 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 (hearing is intended to establish the validity, or at least the probable validity, of the underlying claim ) (citation omitted). The Department has met its burden here. Petitioner presented proof in support of its right of retention in the form of various arrest and criminal records. According to a criminal court complaint (Pet. Ex. 3), at 5:00 a.m. on May 17, 2014, Mr. Morgan was seen by witnesses and captured by a video firing multiple rounds from a firearm into the door of a Bronx nightclub, wounding a man in the left arm. Petitioner offered into evidence a video (Pet. Ex. 11) showing Mr. Morgan driving away from the nightclub in the seized vehicle. Mr. Morgan was then arrested at 12:45 a.m. on May 22, 2014, in a Bronx apartment (Pet. Ex. 1). Mr. Morgan was indicted for first degree assault and attempted murder and the case remains pending. The credible and unrebutted statements in the criminal complaint are sufficient to establish probable cause for the arrest of Mr. Morgan. See Police Dep t v. Nightstar, OATH 1 Due to a microphone malfunction, the audio of a portion of Ms. Beckford s testimony was not properly recorded. When contacted by conference call, the attorneys for the parties did not object to my relying on my notes for the lost testimony and neither sought to have Ms. Beckford s testimony taken again.

-3- Index No. 3190/09, mem. dec. at 3-4 (June 19, 2009); Police Dep t v. Lord, OATH Index No. 942/08, mem. dec. (Dec. 6, 2007); Police Dep t v. Zuleta, OATH Index No. 1223/06, mem. dec. at 6-7 (Feb. 10, 2006) (Officer s credible observation held sufficient to support probable cause); see also People v. Morgan, 10 A.D.3d 369 (2d Dep t 2004) (officer s detection of the odor of marijuana and observation of remains of marijuana cigarettes in car ash tray established probable cause for arrest). The complaint, combined with the video, establish a likelihood that petitioner will be able to show that the vehicle was used to commit a crime in that Mr. Morgan drove the car to the nightclub, shot someone inside, and then drove away in the car. The issue raised at the hearing by Ms. Beckford was whether she was an innocent owner entitled to the return of the vehicle. The law is clear that, where the owner of a vehicle is not the driver at the time of the seizure, the forfeiture statute can only be enforced against one who knew, or should have known, that the activity would take place. See Property Clerk v. Pagano, 170 A.D.2d 30, 34-35 (1st Dep t 1991). In Pagano, the First Department held that the Police Department bears the burden of proof on this issue and must show that the car owner was not innocent. Id. In a more recent case, the Second Department, relying upon a First Department case involving co-owners, held that the burden of proof as to innocent ownership now lies with the purported innocent owner. Price v. Property Clerk, 74 A.D.3d 1078, 1080 (2d Dep t 2010). The First Department has not revisited the issue since Price. Under the facts of the instant case, the issue of which party bears the burden of proof is largely moot, since the facts put forward by Ms. Beckford herself were not credible and largely contradicted her claim of being an innocent owner. Ms. Beckford testified that she currently lives with her mother, her grandmother, and three children in her mother s apartment in the Bronx. Mr. Morgan is the father of her youngest daughter, who was one and half at the time of the hearing. Ms. Beckford met Mr. Morgan in 2011 and lived together with him in a Mount Vernon apartment for approximately five months from December 2013 until April 2014, when they were evicted. According to Ms. Beckford, after they were forced to leave Mount Vernon, both Ms. Beckford and Mr. Morgan moved back to live with their respective mothers in the Bronx. Ms. Beckford s only income comes from $721 per month in SSI benefits. Ms. Beckford testified that Mr. Morgan sold his Acura to her for $1,500 in early February 2014 because he lost his driver s license. Her mother gave her the money to buy the car and she

-4- has no receipt to document the purchase. Ms. Beckford produced the title to the vehicle (Resp. Ex. A), showing it was transferred on February 21, 2014, from Mr. Morgan to Ms. Beckford. The vehicle was also registered in her name on January 31, 2014 (Resp. Ex. C). Insurance cards were issued in Ms. Beckford s name in January and April 2014. Ms. Beckford also indicated that Mr. Morgan gave her only one set of keys to the vehicle and that she never asked about and was unaware whether there was a second set. She stated that, following the transfer of the title to the car, she had to have a new transmission put in and other repairs, for which again her mother paid. The repair bills (Resp. Ex. D) show that approximately $1,500 was spent on an oil change, engine mounts, brake pads, new valves, and transmission repair. According to Ms. Beckford, although Ms. Beckford s name appears on several of the bills, her mother paid these expenses. Ms. Beckford stated that she used the car for appointments and to drive her son to school. She also used the car to drive Mr. Morgan to doctor s appointments. On the morning after the May 17 shooting incident, Mr. Morgan came to Ms. Beckford s residence at around 6:00 or 7:00 a.m. He was hysterical and was screaming and removed his shirt. When Ms. Beckford asked him if he had taken the car, he did not answer. She searched for the car and found it at a nearby gas station. At 12:30 a.m. on May 22, the night Mr. Morgan was arrested and the car was seized, Ms. Beckford was with Mr. Morgan because he needed her to drive him in the car to his aunt s house. Ms. Beckford insisted that she never gave Mr. Morgan permission to use the vehicle after he sold it to her in February 2014. Her attorney contended that, on the night of the shooting, Mr. Morgan stole the car, presumably by using an extra set of keys. Ms. Beckford contended that she currently has no relationship with Mr. Morgan other than as the father of her young daughter. Ms. Beckford s claim of innocent ownership rests entirely upon her own credibility which was undermined by a number of factors. Ms. Beckford had a significant financial stake in getting the vehicle back, making her uncorroborated statements deserving of marginal weight. It seemed highly implausible that the transfer of title to the vehicle from Mr. Morgan to Ms. Beckford in February 2014, when the two were living together, was motivated by any desire by Ms. Beckford to purchase the vehicle. As explained by Ms. Beckford herself, the title transfer

-5- occurred after Mr. Morgan lost his driver s license following his arrest on November 9, 2013, for driving while intoxicated and refusing to take a breathalyzer test. Ms. Beckford had no receipt or other documentation to show that any funds were exchanged. At one point in her testimony, she used the phrase gave me the car to describe the transfer. Ms. Beckford offered no testimony that she purchased the car because she needed it for any specific purpose. Indeed, the transfer of the car from Mr. Morgan to Ms. Beckford, at a time when the pair were living together, suggests that the transfer of title was not to benefit Ms. Beckford but to avoid negative repercussions, such as seizure of the vehicle, should Mr. Morgan be arrested again. The fact that Ms. Beckford did not actually purchase the car was confirmed by the fact that she did not use the car after the title transfer. Repair bills with odometer readings show that the car was driven barely five miles during the first 30 days of Ms. Beckford s ownership. This contradicts her testimony that she used the car to drive her son to school or for appointments of any kind. See Police Dep t v. Dookwa, OATH Index No. 2395/14, mem. dec. (June 18, 2014) (titled owner/girlfriend s statements that she did not give boyfriend permission to use car and had no idea how he got the keys and currently had no relationship with him found incredible and supportive of finding that her boyfriend was beneficial owner). Given Ms. Beckford s extremely limited income, consisting of $721 per month to support her and her three children, it was also not plausible that she had any plans to buy or maintain the vehicle. Her testimony that her mother paid for these expenses seemed equally unlikely, given the fact that Ms. Beckford apparently used the car very little, and Ms. Beckford provided no evidence to how or why her mother would have made these payments. It was more plausible that the car expenses were paid by Mr. Morgan, Ms. Beckford s live-in boyfriend, who owned the car up until February and likely continued to use it when he needed it. For all of these reasons, I did not find credible Ms. Beckford s statements that she exercised control over or regularly drove the vehicle after it was transferred to her name. In fact, the limited evidence here suggests that, after the title transfer, Ms. Beckford used the vehicle rarely, if at all, and that Mr. Morgan, who lived with Ms. Beckford until just a month before his arrest, became the beneficial owner, driving the vehicle in the same way that he had before the title was transferred. See Police Dep't v. Price, OATH Index No. 1828/09, mem. dec. (Dec. 26, 2008) (arrested friend was beneficial owner where owner offered no plausible

-6- reason for purchasing vehicle and no proof of paying for purchase or upkeep of vehicle); Police Dep t v. Washington, OATH Index No. 1525/07, mem. dec. (Mar. 30, 2007) (son was beneficial owner where mother was titled owner but son exercised dominion and control over seized car); Police Dep t v. Murray, OATH Index No. 1144/06, mem. dec. (Jan. 31, 2006) (son was beneficial owner of car that was his primary means of transportation and mother, who was titled owner, owned two other vehicles). In any event, even assuming that Mr. Morgan was not a beneficial owner of the car at the time of his arrest, the evidence indicates that Ms. Beckford had ample reason to know that, given Mr. Morgan s criminal background and very recent arrest for driving the Acura while intoxicated, he might use the car to commit a crime. Criminal records (Pet. Ex. 5) show that Mr. Morgan has been arrested ten times and has seven criminal convictions, including reckless endangerment (2000), criminal possession of a firearm (2002), driving while impaired (2006), unlawful possession of marijuana (2008), and disorderly conduct (May 9, 2014). Six of the arrests occurred since 2011, when Ms. Beckford testified she met Mr. Morgan. It seemed highly likely that Ms. Beckford, who lived with Mr. Morgan for much of 2014 and shared a child with him, was aware of most of these criminal cases. Even if she was not aware of the older convictions, she stated that she was specifically aware Mr. Morgan had lost his driver s license as the result of being arrested in a 2004 Acura for driving while intoxicated in November 2013 (Pet. Ex. 15), just before they started living together. The New York State auto registration records (Pet. Ex. 7) establish that the license plate on the car in which respondent was arrested in November 2013 was the same license plate that he had for the seized 2004 Acura prior to transferring it to Ms. Beckford. An arrest report (Pet. Ex. 16) further shows that Ms. Beckford was present on March 3, 2014, when Mr. Morgan was arrested for first degree burglary based upon a complaint that he forced his way into an apartment with a gun. Ms. Beckford s knowledge that Mr. Morgan had committed a number of crimes, and was arrested for driving while intoxicated while driving the vehicle, provided her with ample reason to believe that Mr. Morgan might use the car to help commit further crimes. See Police Dep t v. Carter, OATH Index No. 248/10, mem. dec. at 5-6 (Aug. 10, 2009); Police Dep t v. Kong, OATH Index No. 583/09, mem. dec. at 4-5 (Aug. 20, 2008); Police Dep t v. Walton, OATH Index No. 1037/08, mem. dec. at 4-5 (Feb. 28, 2008).

-7- Finally, to justify retention, the Department must show that there will be a heightened risk to the public if the vehicle is returned to its owner. Property Clerk v. Brown, 58 A.D.3d 452 (1st Dep t 2009). A heightened risk to the public may be evidenced by the history of the driver of the seized vehicle. Mr. Morgan s previous convictions for reckless endangerment, criminal possession of a firearm, and driving while impaired creates an obvious risk that the vehicle may be driven by a drunk driver or used once more to transport illegal weapons, thus imperiling members of the public. See Police Dep t v. Lester, OATH Index No. 1049/06, mem. dec. at 3 (Jan. 10, 2006) (drunk driving arrests within a short period of time, even if not yet adjudicated, may constitute sufficient evidence of a heightened risk to the public); Police Dep t v. Lord, OATH Index No. 942/08, mem. dec. at 11 (Dec. 6, 2007) (drinking and driving arrests within two and one-half years established that return of vehicle to respondent would constitute a risk to public safety); Police Dep t v. Smith, OATH Index No. 539/08, mem. dec. (Nov. 7, 2007) (finding heightened risk to public safety where respondent was charged with possession of a weapon in the second degree). Retention of this vehicle therefore seems warranted. ORDER The Department has satisfied its burden of proof under the Krimstock Order and is entitled to retain the vehicle pending the forfeiture action. October 27, 2014 APPEARANCES: JOHN CESTARO, ESQ. Attorney for Petitioner BENJAMIN HEINRICH, ESQ. Attorney for Respondent John B. Spooner Administrative Law Judge