Malafi v 2002 Dodge, Vin No. ID7HU18Z92J206663

[*1] Malafi v 2002 Dodge, Vin No. ID7HU18Z92J206663 2006 NY Slip Op 52529(U) [14 Misc 3d 1214(A)] Decided on November 20, 2006 Supreme Court, Suffolk County Pitts, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 10, 2007; it will not be published in the printed Official Reports.

Decided on November 20, 2006
Supreme Court, Suffolk County

Christine Malafi, County Attorney, for the County of Suffolk, Plaintiff/Claiming Authority,

against

2002 Dodge, Vin No. ID7HU18Z92J206663, Richard J. Hartmann, and DaimlerChrysler Financial Services of America, LLC, Defendants.



9544/06



PLTF'S/PET'S ATTY:

CHRISTINE MALAFI

SUFFOLK COUNTY ATTORNEY

H. Lee Dennison Building

100 Veterans Memorial Highway

P.O. Box 6100

Hauppauge, New York 11788

DEFT'S/RESP'S ATTY:

LONG, TUMINELLO, BESSO, SELIGMAN & WERNER, LLP

120 Fourth Avnue, Suite One

Bay Shore, New York 11706-0420

MILLER & MEOLA

14 Corporate Woods Boulevard

Albany, New York 12211

Arthur G. Pitts, J.

It is, ORDERED that the plaintiff / claiming authority Christine Malafi, County [*2]Attorney for Suffolk County's motion for summary judgment is granted under the circumstances presented herein. ( CPLR 3212 ) It is further

ORDERED that defendant Richard J. Hartmann's cross motion to dismiss, for an order directing the return of the subject vehicle to defendant Hartmann, declaring the forfeiture of the vehicle absent a hearing a violation of due process of law, declaring the hearing procedure set forth in Article 4 of Chapter 207 of the Suffolk County Code unconstitutional, declaring the appointment of Judicial Hearing Officer to adjudicate claims over seized property unauthorized, and pursuant to CPLR 3001 declaring Chapter 270 of the Suffolk County Code unconstitutional are each denied.

The matter at bar is a civil forfeiture proceeding wherein the plaintiff / claiming authority Christine Malafi, Suffolk County Attorney seeks the forfeiture of a 2002 Dodge pickup truck owned by defendant Richard J. Hartmann. Defendant Daimler Chrysler Financial Services of America, LLC. is a lienholder of said vehicle. The following salient facts are not in dispute: Defendant Hartmann was arrested on November 12, 2005 for driving while intoxicated. He submitted to a breathalyzer test which determined his blood alcohol level to be .147%. Prior thereto, on September 7, 2000, Hartmann was convicted of driving while intoxicated in violation of Vehicle and Traffic Law section 1192.2. Based upon his arrest and prior conviction, his vehicle was seized pursuant to Article IV Chapter 270 of the Suffolk County Code. Hartman subsequently was charged by way of a felony complaint with driving while intoxicated and on May 7, 2006 he pled guilty to operating a motor vehicle while under the influence of alcohol as a felony.

Section 270-26 of the Suffolk County Code provides as follows:

A.Any property which constitutes the proceeds of an offense, the substituted proceeds of an offense or an instrumentality of an offense shall be seized by any peace officer, acting pursuant to his or her special duties, or police officer may upon probable cause to believe that an offense, as defined in this article, has been committed, and may be forfeited as hereinafter provided.

B.Notice of seizure.

(1)The seizing agency shall send notification of the seizure to all titled owners, registrants on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested, within five business days of the seizure. Such notification shall inform the recipient that there will be a hearing promptly scheduled before a neutral Magistrate to determine whether probable cause existed for the defendant's warrantless arrest, whether the County is likely to succeed on the merits of the forfeiture action, whether rentention is necessary to preserve the vehicle from destruction or sale during the [*3]pendency of the forfeiture proceeding, and whether any other measures would better protect the County's interest during the proceeding, including, but not limited to:

(a)Issuance of a restraining order prohibiting the sale, transfer, or loss of the vehicle with the imposition(s) of appropriated penalties for violation of said restraining order;

(b)Taking of a bond; and/or

( c )Use of an interlock device.

(2)When a hearing is held, the neutral Magistrate shall review the documents supporting the arrest and any other relevant documents and take any testimony to determine whether the seizing agency has sustained its burden of proof as set forth in 270-26B (1) of this article. If the seizing agency has met its burden of proof, the neutral Magistrate shall authorize the continued retention of the property by the seizing agency pending a judicial determination of any civil forfeiture action. Nothing herein shall be construed to preclude a party with a legal interest in the seized property from commencing an action or proceeding in a court of competent jurisdiction for its return.

(3)The Suffolk County Executive shall designate neutral Magistrates to conduct hearings in accordance with the Subsection B.

The Court notes that Section 270-25 defines an offense as " a violation of New York Vehicle and Traffic Law 1192, Operating a motor vehicle under the influence of alcohol or drugs, Subdivision 2,3, or 4, or 1192-a, Operating a motor vehicle after having consumed alcohol; under the age of 21; per se, or a violation of New York Navigation Law 49-a, Operation of a vessel while under the influence of alcohol or drugs."

Defendant Hartmann was notified to appear for a post seizure hearing on November 29, 2005. At his request the hearing was re-scheduled for December 13, 2005. On such date he appeared with counsel and after the hearing the proffered evidence, Administrative Hearing Officer Armand Araujo determine that Suffolk County was entitled to retain possession of the vehicle.

Pursuant to the foregoing undisputed facts, the plaintiff has moved for summary judgment. A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact.( Winegrad v. New York University Medical Center, 64 N.Y2d 851,853, 487 NYS2d 316; Zuckerman v. City of New York 49 NY2d 557,562). Of course, summary judgment is a drastic remedy and [*4]should not be granted where there is any doubt as to the existence of a triable issue ( State Bank of Albany v. McAuliffe, 97 AD2d 607, 467 NYS2d 944), but once a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action.( Alvarez v. Prospect Hospital, 68 NY2d 320, 324, 508 NYS2d 923 [1986] ) Pursuant to the foregoing undisputed facts, the plaintiff has met its prima facie burden of establishing its entitlement to a judgment as a matter of law within the parameters set forth in the Suffolk County Code and the defendant has failed to raise any issues of fact which would warrant the denial of such relief. However, by way of cross motion defendant Hartmann seeks dismissal of the plaintiff's complaint on various grounds including that he was denied due process and that chapter 270 of the Suffolk County Code is unconstitutional.

In support of the instant cross motion the defendant cites County of Nassau v. Canavan, 1 NY3d 134, 802 NE2d 616, 770 NYS2d 277 [ 2003] wherein the Court of Appeals found the Nassau County civil forfeiture law unconstitutional for failing to meet the due process requirement for a prompt, post seizure retention hearing before a neutral magistrate after giving adequate notice to all defendants whose cars had been seized for possible forfeiture. The Nassau County statute did not mandate a hearing but made it available to those who requested it. The subject section of the Suffolk County Code was amended and enacted on April 20, 2004 providing that the seizing agency shall send notification of the seizure to all titled owners, registrants on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested within five business days of the seizure. It is without dispute that the County provided the notification in a timely manner, afforded the defendant a post seizure hearing and as such, met the due process requirements as set forth in County of Nassau v. Canavan, supra .

The defendant also submits, in support of the subject cross motion, that the procedure in appointing Judicial Hearing Officers to preside over the post-seizure hearings is in violation of the laws of this State. However, it has consistently been held that the granting of adjudicatory powers in an administrative agency does not encroach upon judicial power and does not otherwise violate the state constitution. ( See 2 N.Y.Jur. Administrative Law 61 citing Premium Ice Co. v Maltbie, 43 NYS2d 71, 266 A.D.455 [3rd Dept. 1943] ) Furthermore section 270-26 (B) (2) specifically provides that "nothing herein shall be construed to preclude a party with a legal interest in the seized property from commencing an action or proceeding in a court of competent jurisdiction for its return." Based upon the foregoing, the defendant's cross motion for dismissal on such grounds is also denied.

Finally the defendant seeks dismissal alleging that Chapter 270 of the Suffolk County Code is unconstitutional because it violates the excessive fines clauses of both the [*5]State and Federal Constitutions. In County of Nassau v. Canavan, supra at 140, the Court of Appeals addressed this issue when the defendant therein contented that the forfeiture of her car as a result of a DWI conviction was excessive. "Inasmuch as a punitive forfeiture of an instrumentality of a crime violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the defendant's offense

( Bajakajian, 524 U.S. at 334), we reject defendant's claim that the forfeiture of her car constituted an excessive fine. In determining gross disproportionality, we consider such factors as the seriousness of the offense, the severity of the harm caused and of the potential harm had the defendant not been caught, the relative value of the forfeited property and the maximum punishment to which the defendant could have been subject for the crimes charged and the economic circumstances of the defendant......On the facts of this case, we conclude that the forfeiture of defendant's car was not at all disproportionate to the gravity of her offense. The offense with which she was originally charged - driving while intoxicated - is a very serious crime. Grievous harm to innocent victims could have been caused by defendant's driving with a blood alcohol level of .15% while speeding and weaving in and out of lanes, had she not been caught and stopped. Given the gravity of the crime of drunk driving, it is difficult to imagine that forfeiture of an automobile for such crime could ever be excessive."

It is apparent that the facts of the matter at bar are clearly similar to the underlying facts of County of Nassau v. Canavan and as such would require the same holding; that is, that the fine of forfeiture is not excessive and a violation of the State and Federal Constitutions as the defendant asserts. Accordingly, his cross motion to dismiss on such ground is also denied.

The Court notes that the lienholder of the subject vehicle, Daimler Chrysler Financial Services of America, LLC partially opposed the plaintiff's motion for summary judgment objecting to Suffolk County's assertion that it is liable for any storage fees accumulated from the date of seizure prior to the vehicle being released to it. It is well settled that the Daimler Chrysler does not, at this time, have a possessory right to the subject vehicle ( see Property Clerk v. Molomo, 81 NY2d 936, 597 NYS2d 661 [1993] ) and a such, to obtain its release, it must comply with the requirement that all storage fees must be paid as set forth in Suffolk County Code 270-27 (J).

This shall constitute the decision and order of the Court.

Submit judgment on notice.

So ordered. [*6]

Dated: November 20, 2006

J.S.C.

Riverhead, New York