People v Ramroop

[*1] People v Ramroop 2016 NY Slip Op 26023 Decided on January 27, 2016 Criminal Court Of The City Of New York, Bronx County Hornstein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on January 27, 2016
Criminal Court of the City of New York, Bronx County

The People of the State of New York

against

Sherryann Ramroop, Defendant.



2015BX049852



Whitney Hayes, Law Graduate

The Bronx Defenders

360 East 161st Street

Bronx, New York 10451

Bradley Gershel, Esq.

Assistant District Attorney

Bronx District Attorney's Office

198 East 161st Street

Bronx, New York 10451
Steven Hornstein, J.

On October 18, 2015, at approximately 1:18 a.m., Police Officer Patricia McVeigh responded to a radio run of an automobile accident at the corner of Lafayette Avenue and

the Cross Bronx Expressway. Upon arriving at the scene, Officer McVeigh observed two vehicles: a 2013 Ford Fusion and a 2013 GMC Suburban. The Suburban was damaged on

the rear passenger side. The Fusion had extensive front end damage on the driver's side,

damage to the rear passenger side and a cracked windshield. In addition, all of the Fusion's

air bags had deployed. Trapped inside the Fusion's driver's seat was the defendant. The

officer noticed that the defendant's eyes were bloodshot and watery and that her breath bore

a moderate odor of alcohol. The defendant admitted that she had consumed one beer, she

was placed under arrest and a breath test administered to her at 2:18 a.m. indicated a blood

alcohol level of .06 %. See misdemeanor complaint, dated October 18, 2015.

Later that same day, the defendant was arraigned on a misdemeanor information

charging her with two counts of driving while under the influence of alcohol (Vehicle &

Traffic Law [VTL]§§ 1192 [3], [1]). Through a series of voice messages left for the assigned [*2]Assistant District Attorney between October 18, 2015 and November 4, 2015; through an

email sent on November 18, 2015; and via a letter sent on November 18, 2015, the defendant sought a property release for the Ford Fusion seized the morning of her arrest. See defendant "Affirmation in Support" at ¶ 4. The written request of November 18th provided, in pertinent part: Pursuant to the Third Amended Order & Judgment of Krimstock v. Kelly...please provide...a written statement that retention as evidence of the vehicle seized...is not necessary...this written statement must be provided no later than seven days after receipt of this request by your office...If the District Attorney makes such an application, please provide the court order granting or denying that application to counsel named below within ten days of receipt of this letter....

On November 23, 2015, the assigned Assistant District Attorney responded to the defendant's request and wrote, in pertinent part:

After careful consideration, the People have determined that the vehicle...is needed as evidence for the prosecution of the above defendant for the charge of VTL 1192.The People will not release this vehicle until the conclusion of the criminal case and any possible appeal, or until such time that the Bronx County District Attorney's Office determines that the vehicle is no longer needed as evidence.

By motion dated December 14, 2015, the defendant moved for an Order directing

the Bronx District Attorney's Office to issue a written statement authorizing the release of

the Fusion. See defendant's "Notice of Motion." In seeking the release, the defendant asserted

that the District Attorney's Office "cannot unilaterally decide to retain a vehicle as potential trial evidence once a demand for its release has been made." Specifically, the defendant stated: This motion is authorized by the Order in Krimstock v. Kelly Krimstock v. Kelly, 464 F3d 246, 255 (2d Cir 2006), which binds the District Attorneys of New York City. In this case, the District Attorney has not followed the procedure created by the Krimstock Order in seeking to retain the vehicle as trial evidence — namely, by not moving for a retention order. Therefore, this Court should issue an order directing the District Attorney to provide a property release....

By response filed January 12, 2016, the District Attorney's Office oppose the release

and stated, in pertinent part: Defendant's [sic] incorrectly asserts that the People are required to file for a Retention Order, and in doing so, conflates the meanings of arrest evidence and forfeiture. In the instant matter, defendant's vehicle was vouched as arrest evidence and not forfeiture...the process by which a defendant may challenge the release of arrest evidence differs significantly from property vouchered for forfeiture. See People's Response at 5.

Contrary to the People's contention, the vehicle was not invoiced as "arrest evidence." Indeed, the invoice for the vehicle clearly provides that the vehicle was marked as "forfeiture evidence." Moreover, the invoice provides that a claimant seeking the return of "arrest" or "forfeiture evidence" "should before making a demand, [obtain] either a District Attorney's Release or a supervising District Attorney's statement refusing to grant a release."

[*3]LEGAL ANALYSIS

"The City [of New York] has broad authority to retain property following seizure" (Property Clerk of the Police Department of the City of New York v. Harris, 9 NY3d 237, 244

[2007]) and the City is entitled to retain "[a]ll property...taken from the person or possession

of a prisoner...suspected of having been used as a means of committing crime or employed

in aid or furtherance of crime...taken by the police as evidence in a criminal investigation or proceeding..." New York City Administrative Code (AC) § 14-140 (b). The City's authority

to retain seized property, "applies to all levels of crime, not just felonies, and to all types of crime." Krimstock v. Kelly, 306 F3d 40, 44 (2d Cir 2002). In New York City, where property

is taken or obtained in connection with an arrest, the procedure for obtaining a District Attorney's release for that property is generally governed by Rules of the City of New York (RCNY) § 12-36.[FN1]

The City's authority to retain a seized automobile, however, is subject to additional due process safeguards. As Judge Sotomayor stated in Krimstock v. Kelly, 306 F3d 40 (2d Cir 2002):

[W]e order that claimants be given a prompt post-seizure retention hearing, with adequate notice, for motor vehicles seized as instrumentalities of crime pursuant to NYC Code § 14-140 (b). Id. at 69.

One year after Krimstock, in County of Nassau v. Canavan, 1 NY3d 134 (2003), the

New York Court of Appeals adopted the Krimstock holding and held that due process requires

a prompt post-seizure hearing for vehicles seized under forfeiture programs. The Court, noting that an automobile was "an essential form of transportation and, in some cases, [was] critical to life necessities, [such as] earning a livelihood and obtained education" (id. at 142), recognized that the loss of one's automobile implicated compelling privacy interests.

The initial Krimstock ruling was amended by the United States District Court for the Southern District of New York in a series of subsequent rulings. In the third amended order

and judgment under Krimstock (Krimstock v. Kelly, 2007 US Dist LEXIS 82612 [SDNY 2007]), the District Court stated: Following seizure of a vehicle, at the time of the driver's arrest, as evidence of a crime or as the instrumentality of a crime, a claimant[FN2]...may contest such seizure at a hearing (i.e., [*4]the Krimstock hearing') to be held at defendant City of New York's...Office of Administrative Trials and Hearings (OATH)...Such Krimstock hearing' will provide the claimant with an opportunity to be heard...as to three issues: whether probable cause existed for the arrest of the vehicle operator; whether it is likely that the City would prevail in an action to forfeit the vehicle; and whether it was necessary that the vehicle remain impounded in order to ensure its availability for a judgment of forfeiture. Id. at *2.

The District Court also imposed, in explicit detail, procedures to be followed by the police, claimants and the District Attorney's Office upon the seizure of a motor vehicle as evidence of a crime or as the instrumentality of a crime. The police, among other things, are required to provide the driver of the seized vehicle with a copy of a vehicle invoice; a notice

of the right to contest the seizure at a hearing; and a form to request such hearing. Id. at *3-*5.

Where a vehicle is seized as evidence of a crime or as the instrumentality of a crime,

a qualified claimant "may make a demand for a written statement from the prosecutor that retention of the vehicle as evidence is not necessary." Id. at *8. The demand may be made

by either "a request for a hearing as provided in the Krimstock Order, or by a written demand

for a release made directly to the office of the District Attorney prosecuting the criminal case." Id.

The District Attorney's Office must respond, in writing, and within seven days of the

release demand, that "retention of the vehicle is not necessary for the criminal case" or that

the District Attorney's Office "seeks to retain the vehicle as evidence for the criminal case...."

Id. at *8-*9. A District Attorney's Office seeking retention of a demanded vehicle, must also,

within the seven-day period, seek "an application for a retention order" "before a judge with

jurisdiction over the criminal case." Id. at 9. Upon receipt of the retention application: The judge before whom the application is made may issue the retention order if the affirmation, citing facts particular to the individual cases, makes a sufficient showing that: 1) specific facts about the condition for the vehicle at the time of seizure may be relevant in the criminal case; and 2) there are no reasonable means other than impoundment such as photographing or testing, to preserve the evidentiary value of the vehicle for presentation to the fact. If the judge ruling on the motion finds that photographing, testing, or other means are sufficient to preserve the evidence, the judge may order the vehicle to be retained for a period of time sufficient to allow law enforcement to complete such photographing, testing or other means...Id. at *9 - *10.

On November 18, 2015, in accordance with the requirements of Krimstock, the defendant served a written demand for a vehicular release upon the District Attorney's Office prosecuting the criminal case. Within seven days of that demand, by letter dated November 23, 2015, the District Attorney's Office responded, in writing, that the vehicle was needed as evidence and that a release would not be issued until "the conclusion of the criminal case and any possible appeal, or until such time that the Bronx County District Attorney's Office determine[d] that the vehicle [was] no longer needed as evidence." See People's demand response, dated November 23, 2015. The prosecution did not, however, within the prescribed seven day period, seek a retention order from the court as required under Krimstock. Accordingly, the People are ordered to issue a property release to the defendant for the seized vehicle within ten (10) days of the date of this

Order. The District Attorney may, however, photograph and/or conduct non-destructive forensic testing on the vehicle until such time as it is released.

This constitutes the decision and order of the court.

DATED: January 27, 2016

Bronx, New York

Hon. Steven J. Hornstein Footnotes

Footnote 1: 38 RCNY § 12-36 (a) provides, in pertinent part: "If a timely demand is made for the return of the property before the forfeiture proceeding is instituted, such proceeding shall be brought no later than (i) in the case of arrest evidence, 25 days after the claimant provides the property clerk with a district attorney's release, and (ii) in all other cases, as a district attorney's release is not required, within 25 days of the demand." 38 RCNY § 12-36 (a) (i) (ii). "If [the forfeiture] proceeding is not commenced within this period, the property clerk shall give written notice to the claimant...that the property will be returned forthwith to that person..." Id. "Notice of commencement of a forfeiture proceeding...shall include a statement of the grounds upon which the property clerk seeks to justify the continued retention of the property."

Footnote 2:A claimant "may be either the person from whom the vehicle was seized, if that person was then in lawful possession of the vehicle, or the owner if different from such person."