Property Clerk of the Police Dept. of the City of N.Y. v Robinson

Property Clerk of Police Dept. of City of N.Y. v Robinson 2008 NY Slip Op 09845 [57 AD3d 325] December 16, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Property Clerk of the Police Department of the City of New York et al., Petitioners,
v
Jason Robinson et al., Respondents.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for petitioners.

Charles D. McFaul, New York, for respondents.

Determination of respondent New York City Office of Administrative Trials and Hearings (OATH), dated, April 20, 2007, which found that petitioners failed to establish their right to retain respondent Robinson's vehicle pending a civil forfeiture proceeding and ordered the vehicle released, unanimously annulled, on the law, without costs, and the petition in this proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Martin Shulman, J.], entered on or about August 7, 2007), granted to that extent.

Given the evidence that Robinson had committed a drug-related offense from the vehicle, that he was seen entering and exiting a house in which 49 bags of crack cocaine were found, that his car was parked outside the house, and that a ziplock bag of crack cocaine was found upon search of the car, OATH's determination that petitioners failed to demonstrate probable cause for Robinson's arrest and a likelihood that they would succeed in the forfeiture proceeding was not supported by substantial evidence (see Krimstock v Kelly, 306 F3d 40 [2d Cir 2002], cert denied 539 US 969 [2003]). The absence of evidence as to whether Robinson had driven the car to the house or how long he had been out of the car are issues for the forfeiture hearing itself and are not necessary to the resolution of the Krimstock hearing (id. at 69-70). Concur—Andrias, J.P., Nardelli, Sweeny, DeGrasse and Freedman, JJ.