Malafi v A 1967 Chevrolet, Vin No. 135177G120642

[*1] Malafi v A 1967 Chevrolet, Vin No. 135177G120642 2008 NY Slip Op 50794(U) [19 Misc 3d 1121(A)] Decided on April 1, 2008 Supreme Court, Suffolk County Pitts, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 1, 2008
Supreme Court, Suffolk County

Christine Malafi, County Attorney for the County of Suffolk, Plaintiffs,

against

A 1967 Chevrolet, Vin No. 135177G120642, Zachary G. Moisan, Defendants



34106/06



PLTF'S/PET'S ATTY:

CHRISTINE MALAFI

Suffolk County Attorney

By: Christopher M. Gatto-Assistant County Atty

H. Lee Dennison Bldg.

P.O. Box 6100

100 Veterans Memorial Highwat

Hauppauge, New York 11688-0099

DEFT'S/RESP'S ATT

JOHN G. POLI, III, P.C.

200 Laurel Avenue, P.O. Box 59

Northport, New York 11768

Arthur G. Pitts, J.

ORDERED that defendant Zachary G. Moisan's motion for summary judgment dismissing the within complaint is denied. It is further

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

The matter at bar is a civil forfeiture proceeding wherein the plaintiff / claiming authority Christine Malafi, Suffolk County Attorney seeks the forfeiture of a 1967 Chevrolet owned by defendant Zachary G. Moisan. The following salient facts are not in dispute: Defendant Moisan was arrested on June 23, 2006 for driving while intoxicated. He submitted to a blood test after being transported to Huntington Hospital and it was determined that his blood alcohol level was 19%. Prior thereto, on January 11, 1984, Moisan 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. On October 26, 2006 he pled guilty to driving while intoxicated and was sentenced to sixty days incarceration.

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 warrant less 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 pendency of the forfeiture proceeding, and whether any other measures would better protect the [*2]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 Moisan was notified to appear for a post seizure hearing on July 3, 2006. On such date he did not appear with counsel and after inquest the Neutral Magistrate, Harry E. Seidell determined that Suffolk County was entitled to retain possession of the vehicle.

Pursuant to the foregoing undisputed facts, the plaintiff has cross 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 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 [*3]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 motion the defendant seeks summary judgment and dismissal of the plaintiff's complaint averring that the forfeiture sought is excessive compared to the offense committed. In support of the motion, the defendant has proffered an appraisal of the subject vehicle, a 1967 Chevrolet Chevelle, which valued the car at $48,000.00. Said appraisal was based solely upon information given by the defendant and does not consider the damage the vehicle sustained at the time the defendant was arrested.

In County of Nassau v. Canavan 1 NY3d 134, 140, 802 NE2d 616, 770 NYS2d 277 [ 2003] , 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 motion for summary judgment and dismissal on such ground is denied.

This shall constitute the decision and order of the Court.

Submit judgment on notice. [*4]

So ordered.

Dated: Riverhead, New York

April 1, 2008J.S.C.

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