Police Dep't v. Francis OATH Index No. 2210/20, mem. dec. (July 6, 2020)

Petitioner entitled to retain seized vehicle pending a civil forfeiture action where eviden ce estab lished that arrestee driv er is the beneficial owner of the vehicle. _______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of POLICE DEPARTMENT

Petitioner - against -

ANTOINETTE FRANCIS Respondents

______________________________________________________

MEMORANDUM DECISION INGRID M. ADDISON, Administrative Law Judge

Petitioner, the Police Department (“Department” or “petitioner”), 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 (ALJ Ex. 1). Respondent, Antoinette Francis, is

the registered owner of a vehicle which was sei zed following the arrest of Christopher Garrick,

who was driving the vehicle at th e time of his arrest (Pet. Exs. 1, 5, 6). This proceeding is

mandated by Krimstock v. Kelly, 99 Civ. 12041 (HB), third am ended order and judgment

(S.D.N.Y. Sept. 27, 2007) (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 vehicle is a gray 2018 Hyundai Elantr a with New York license plate number

JCB5080 (Pet. Ex. 5). Petitioner se ized the vehicle following the a rrest of Mr. Garrick and five

companions, at or aroun d 3:13 a.m., on June 2, 2020, on multip le criminal charg es, including:

criminal possession of stolen prope rty in the four th degree, unlawful fleeing a police officer in a

motor veh icle in the th ird degree a nd reckles s driving (Pet. Exs. 1, 2, 3). The c harges are

pending. On June 17, 2020, pe titioner received respondent’s demand for a hearing, and

scheduled one for June 30 (Pet. Ex. 11).

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At the hearing, petitioner relie d solely on documentary evid ence. Respondent appeared

with counsel, testified on her own behalf a nd presented documentary evidence. Respondent

asserted that she is an innocent ow ner, and her vehicle should not conti nue to be r etained b y

petitioner. At responden t’s request, I kept the record open un til the close of business on July 1,

2020, for her to produce proof of ownership of the seized vehicle.

For the reas ons set for th below, I conclude tha t petitioner s atisfied the elements of the

Krimstock Order. I further find that petitioner defe ated respondent’s claim that she is an

innocent owner by establishing that the arrestee is the beneficial owner o f the vehicle , and that

returning the vehicle will be a he ightened risk to the public safe ty. Accordingly, petitioner is

entitled to retain possession of the vehicle pending a civil forfeiture action.

ANALYSIS

In a Krimstock proceeding, the Department has to establish by a preponderance of the

evidence that: (i) probable cause existed for the arrest that resulted in the vehicle’s seizure; (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 to ensure its availability for a judgment in a civil

forfeiture action. Krimstock Order, a t ¶3. See generally K rimstock, 306 F.3d 40; Canavan, 1

N.Y.3d at 144-45.

Due process requires an “initia l testing of the mer its o f the [Department’s ] cas e,” not

“exhaustive evidentiary battles th at might threaten to duplicate th e eventual forfeiture hearing.”

Krimstock, 306 F.3d at 69-70. The probable cause inquir y includes not only a sufficiency of the

evidence, but a lso the legality o f the means by which the Department o btained such evidence.

Police Dep't v. Burnett , OATH Index No. 1363/04, mem. dec. (Mar. 11, 2004), aff'd, 2004 N.Y.

Misc. LEXIS 3213 (Sup. Ct. N.Y. Co.), aff’d, 22 A.D.3d 201 (1st Dep’t 2005).

Here, the undisputed evidence established that the police had a lawful basis to stop the

car and arrest its driver and occupants.

The following is a prelude of the circumstances that led to Mr. Garrick’s arrest.

George Floyd, an African-American male, died at the hands of police in Minneapolis,

Minnesota in May 2020. This led to widespr ead protests across the country against police

brutality. In New York City, some of the protests were accompanied by simultaneous instances

of criminal mischief including significant looting. As a result, the governor and mayor impose d

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a curfew in the City. T he curfew began on June 1, 2020, from 11:00 p.m., through 5:00 a.m. on

June 2, 2020 (Pet. Ex. 3). Mr. Garrick was in violation of the curfew when he was arrested.

The evidence revealed that Mr. Garrick wa s observed operating respondent’s vehicle at a

high rate of speed during curfew hours (Pet. Ex. 2). Police officers attempted to stop the vehicle,

but it sped away, ignori ng red traffic lights. With lights on and sirens blari ng, police officers

pursued the vehicle which was dr iving at about 65 miles per hour . The vehicle drove through a

construction site, back onto the street, under the pedestrian arch at the Grand Army Plaza, and

then onto a pedestrian and bike lane leading to Prospect Park. When it got to the park, Mr.

Garrick lost control of the vehicle and struck a marked police vehicle.1 It skidded before coming

to rest in a ditch. The vehicle’s six occupants fled the vehicle but five were apprehended almost

immediately. The sixth perpetr ator was apprehended after a brief foo t chase. A search of the

vehicle uncovered more than 60 liquor bottles, a crowbar and bolt cutters in the trunk. More

than 20 mini bottles of liquor wrapped in shrink wr ap were recovered from the back seat of the

vehicle (Pet. Exs. 2, 3, 4). Petitioner’s documents also noted that a police captain ha d observed

one of the vehicle’s occupants in possession of a firearm. When the occupants were even tually

apprehended, the park was canvassed but no fir earm was recovered (Pet. Ex. 2). Mr. Garrick

was arrested inside 10 Prospect Park West at or around 3:13 a.m. on June 2, 2020, and charged

with reck less endanger ment in the firs t degr ee, criminal possession of stolen property in the

fourth degree, resisting arrest, and fleeing a po lice o fficer in th e third degree, in violation o f

sections 120.25, 165.45(1), 205.30 and 270.25, respectiv ely, of the Penal Law (Pet. Ex. 1).

Additional crimina l ch arges and violations of the Vehicle and Traffic Law were added at his

arraignment (Pet. Ex. 3). According to the crimin al court complaint, Mr. Garrick did not have a

license and he resisted arrest.

At his arrest, Mr. Garrick gave a home addre ss of East 55th Street, Brooklyn (Pet. Ex.1).

He also told the arrestin g officers that he got sc ared, he did not know that they were cops. He

thought that they were going to rob him. He added that “my wife will k ill me since I totaled the

car” and “I can’t say what happened, I will get in more trouble” (Pet. Ex. 4).

The Property Clerk’s Invoice which inventorie d the seized 2018 Hyund ai vehicle, show

that there was significant damage to the rear drivers’ door and a window was “busted out” (Pet.

1 The District Attorney’s Complaint Room Screening Sheet noted that when the police vehicle was struck, an officer sustained irritation and scrapes to his arms and was treated by Emergency Management Services (Pet. Ex. 4).

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Ex. 5). It also listed the names and addresses of the six arrestees, includ ing the East 55th Street

address for Mr. Garrick. Two of the other five arre stees reside at 227 and 275 Sullivan Place,

Brooklyn.

Petitioner submitted a copy of a B Summons which the Depa rtment issued Mr. Garrick

on May 6, 2019, while making an improper turn on De lancey Street near Clinton Street, in

respondent’s vehicle (Pet. Ex. 8). A map attached to the exhib it showed that the summons was

issued close to the Williamsburg Bridge. Three weeks later, on May 27, 2019, which wa s

Memorial Day, the Department received a comp laint of an assault perpetrated by a male

individual driving respondent’s vehicle, th e license number of which was provided by the

complaining witness (Pet. Ex. 9). The compla int indic ated that the c omplaining victim w as

crossing an intersection when he got into an argument with an unknown male perpetrator. The

latter individual retrieved a baseball bat from the trunk of the vehicle and struck the complaining

victim about the head, shoulder and arm before fleeing the scene. Mr. Garrick was not

apprehended for this incident, as it appeared from the narrative on the complaint form that police

were unable to contact the complaining witn ess after they had reviewed the neighborhood

cameras.

On the issue of whether petitioner is likely to prevail at a civil forfeiture proceeding, there

is no dispute that respondent’s car was used to commit crimes. However, respondent was not in

the vehicle during th e commission of the crimes. She asserts that she is an innocen t owner and

should not be penalized for Mr. Garrick’s wrongdoing.

The rule regarding innocent ownership is founded upon the Administrative Code

provision that allows fo r seizure of property w here the ow ner permitted it to b e u sed as an

instrumentality of crime. Admin. Code § 14-140(e); see also Krimstock, 306 F.3d at 48 n.9. To

establish a basis for determining which owners are innocent, courts have concluded that a statute,

such as Administrative Code s ection 14-140, that holds a person li able for having permitted or

suffered a certain activity may only be enforced against one who “knew, or should have known,

that the activity would take place.” Property Clerk v. Pagano, 170 A.D.2d 30, 35 (1st Dep’t

1991; see also Police Dep’t v. Pagan, OATH Index No. 591/17, mem. dec. at 4-5 (Oct. 4, 2016);

Police Dep’t v. Bloise, OATH Index No. 2138/04, mem. dec. at 5 (June 17, 2004).

Where the issue of inno cent ownership is ra ised, the First D epartment places the burden

on the Police Department to show that the own er is not an innocent owner en titled to the return

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of the vehicle. See Pagano, 170 A.D.2d at 34-35. However, the Second Department, in which

respondent’s vehicle was used to commit the crimes for which he was arrested, places the burden

on the person seeking to avail him/herself of the innocent ownership defense. See Price v.

Property Clerk of NYC, 74 A.D.3d 1078 (2d Dep’t 2010). In any event, I find that the

Department disproved respondent’s claim of innocent ownership.

Respondent, Ms. Francis, testified that she ha s been a teacher with the New York Cit y

Department of Education for th e past two years. An Employm ent and Earnings Verif ication

report from the New York City Citywide Administrative Services showed an agency start date of

January 19, 2017 (Resp. Ex. B). Ms. Francis explained that she was a substitute teacher at that

time and became full-time in Oc tober 2018. She holds a graduate degree in education and is

completing a second graduate degr ee in special education. She currently teaches sixth grade

mathematics at a school in Williamsburg.

Ms. Francis testified that she has reside d at Sullivan Place in Brooklyn since 2010. She

has her two sons, ages three and fi ve years, who live with her. Her mother and grandmother live

on a diffe rent f loor in the building and have me dical problems. The S ullivan Place address is

reflected on Ms. Francis’ New York State driver license w hich was issued in 2013 (Resp. Ex.

A). She had she saved for two years to afford the down payment on the vehicle. She executed a

lease with Plaza Hyundai Ltd on August 30, 2018, for th e purchase of the vehicle and currently

makes monthly payments of $168 on it. She has no other vehicle. The l ease lists Ms. Francis’

address as Lancaster Street in Cohoes, New York (Resp. Ex. C). The vehi cle was regis tered on

the same date that the lease was ex ecuted. Th e New Yor k State Veh icle Registration fo r the

vehicle lists an address at Lakeshore Drive in Watervliet, New York for Ms. Francis (Pet. Ex. 6).

Ms. Francis stated that b ecause she was a substitu te teacher and not full-time, she co ntemplated

moving to Albany and therefore used her friend’s address for the registration. But she offered no

explanation for the d ifferent add ress provid ed to th e le aseholder on the sa me d ay tha t she

registered the vehicle. Ms. Francis testified th at before the governor’s shelter-in-place order due

to the coron avirus pandemic, she drove her car to and from the school at which she teaches in

Williamsburg, but during the lockdown, she stayed at home and rarely used it.

Ms. Francis has known Mr. Garrick for about 10 years. He live s with his mother at East

55th Street and works with his father, who has a trucking business in New Jersey. She provided

no information on how he commutes to New J ersey. She f irst te stified that fo r the past thr ee

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years, she and Mr. Garrick have be en dating, but since his arrest and the seizure of her vehicle,

she has severed ties with him and he has not reac hed out to her. During cross-examination, she

testified that they dated exclusively from 2010 to 2011. Then she st ated that they stopped dating

in 2015, and then stopped dating in 2017, after her la st son was born. Before the stay-at-home

order, Mr. Garrick would call re spondent about two to three t imes per week to check on the

children. Only when pointedly asked by petiti oner’s counsel, did she acknowledge that Mr.

Garrick is her children’s father.

Ms. Francis testified that on the eve of the arrest that led to the seizure of her vehicle, Mr.

Garrick visited her at around 9:00 p.m. She put her children to bed at around 10:00 p.m. and Mr.

Garrick went outside around 11:00 p.m. to smoke a cigarette, but he did not return. Ms. Francis

equivocated in her testimony abou t what occurred next. She fi rst stated that the following

morning, she called Mr. Garrick’s mother becaus e her bunch of keys, in cluding her car keys,

which she normally keeps in the kitchen, were missing. She came to that realization because she

wanted to go outside for something and could not lock her door. She later claimed that at around

1:00 a.m., she was going to take the children upsta irs to he r mother when she notic ed that the

keys were missing. She called her mother to see if her mother had the keys. She also discovered

that her car was missing, but she was not specific as to exa ctly when sh e made th is discovery.

She frantically searched the neighborhood for her car, thinking perhaps that she had parked it on

a different street, but she did no t call the police . She assu med that Mr. Garr ick had taken the

keys. At or around 12:00 noon on June 2, 2020, Mr. Garrick called to info rm her that he had

been arrested and that her car had been totaled. This left her bereft and in tears.

Ms. Francis maintained that Mr. Garrick had previously used her vehicle but insisted that

he had only done so with her permission, to take her mother or gra ndmother to medical

appointments. Since the stay-a t-home order, Ms. Francis had not given Mr. Garr ick permission

to use her car. She was adamant that she woul d not permit him to us e it if she k new that he

intended to commit a crime. Ms. Francis denied knowledge that Mr . Garrick had been arrested

previously, at which pe titioner produced a report to show that Mr. Garrick had been arrested on

November 18, 2015, and had been charged with gra nd larceny in the fourth degree and criminal

possession of a forged instrument. T he report further revealed that Ms. Francis was one of two

persons that he called after th e arrest. She initially claimed that he just called to say that he was

okay, but when pressed, admitted that he had informed her of his a rrest at that time. Ms. Francis

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stated that she had heard about the May 6, 2019 summons issued to Mr. Garrick while driving

her vehicle. She could not recall what she di d on Memorial Day in 2019 but was adamant that

Mr. Garrick does not normally come by on a holiday. She as serted that only at this tr ial did she

become aware of an alleged assault perpetrated by the driver of her vehicle on Memorial Day last

year. She conceded that the alleged inciden t occurred near to her res idence and that at some

point, she had purchased a baseball bat for one of her sons. Notabl y, a baseball bat was used in

the commission of the alleged assault.

I did not find Ms. Francis to be a credible w itness. In determinin g credibility , this

tribunal has considered “witne ss demeanor, consistency of a witness’ testimony, supporting or

corroborating evidence, witness motivation, bias or prejudice and the de gree to which a witness’

testimony comports with common sense and human experience.” Dep’t of Sanitation v. Menzies,

OATH Index No. 678/98 at 2-3 (Feb. 4, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-

101-A (Sept. 9, 1998). Ms. Francis’ tes timony was fraught with inconsistencies and conflicting

statements, starting with the nature and length of her relationship with Mr. Garrick. Police Dep’t

v. Dookwa, OATH Inde x No. 2 395/14, mem. de c. at 7 (June 18, 2014); Police Dep’t v. Bacon,

OATH Index No. 551/06, mem. dec. at 5 (Oct. 19, 2005) . She initially stated that she had only

been dating him for the last three years, yet they have a five-year old son. Then she claimed that

they ended their relationship in 2015, five years ago, yet they have a three-year old son. And she

further claimed that they dated exclusively for one year, from 2010 to 2011. Her inconsistencies

seemed to be a deliberate atte mpt to downplay the strength of their re lationship, even though he

referred to her as his “wife.” Further, I did not credit her testimony that she had severed ties with

him.

Regarding Mr. Garrick’s use of h er veh icle, Ms. Franc is cla imed th at p rior to the

pandemic, she used her vehicle daily to go to wo rk and that Mr. Garrick only used it when she

gave him permission to do so. Ye t, she offered no explanation fo r the summons that was issued

to him on May 6, 2019, while he was driving her vehicle in the v icinity of the Willia msburg

Bridge. Nor did she offer an e xplanation as to h ow a ma le individual was in possession of her

vehicle on Memorial Day in May 2019, and allegedly assaulted a pe destrian near her home. In

fact, there was no suggestion that it was someone other than Mr. Garrick, who wa s driving the

vehicle on that day. As such, I found her claim that Mr. Garrick does not visit on holidays to be

incredible. In addition, Ms. Fran cis’ recount of what happened between the evening of June 1

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and the morning of June 2, 2020, was sketchy at best. I was not persua ded that Mr. Garrick

could have removed a bunch of keys from her kitchen at 11:00 p.m. in the night without her

being aware of it. I found it mo re likely than not that Mr. Garrick had unfettered use of his

“wife’s” vehicle and therefore did not need her permission to take the keys. Also, her claim that

she was tak ing her ch ildren to he r mothe r’s ap artment at 1 :00 a.m. as an alternate version of

when she discovered that her keys were missing, did not make se nse. In addition, Ms. Francis’

denial that she knew any of Mr. Garrick’s acco mplices on the morning of his arrest was not

convincing. For at least two of the accomp lices, the street numbers of th eir addresses indicate

that they live in very close proximity to Ms. Fran cis and, at the very least, she may have been

familiar with them.

Finally, Ms. Francis’ initial denial and later admission of Mr. Garrick’s previous arrest is

another demonstration of her pr oclivity to be untruthful. By itself though, such knowledge

would not have provided reason for her to anticipa te that he would use the vehicle to commit the

crimes with which he is curren tly charged. See Police Dep ’t v. Reid, OATH Index No. 853/07,

mem. dec. at 4 (Dec. 19, 2006) (vehicle owner’s knowledge of adult son’s prior arrest for assault

did not establish that respondent should have known that her son would use her car to commit an

armed robbery); Police Dep’t v. Perez, OATH Index No. 2422/07, mem. dec. at 3-4 (July 27,

2007) (vehicle owner’s knowledge of brother-in-l aw’s prior drug and weapons offenses did not

establish she would have foreseen that the brother-in-law might commit a crime using her car).

Notwithstanding, an innocent owner defense may be rebutted by a demonstration that the

person charged with using the vehicle in the commission of a crime is the beneficial owner of the

vehicle. Price,, 74 A.D.3d at 1080; Dookwa, OATH 2395 /14 at 12; Police Dep’t v. Wollmer,

OATH Index No. 1806/07, mem. dec. at 4 (Apr. 24, 2007) (“Even if Ms . Wollmer is an innocent

owner, the Department is entitled to retain the vehicle if she is not the true owner -- that is, if Mr.

Lopez is really the beneficial owner of the car and he is not an innocent owner.”); Bacon, OATH

551/06 at 5-6 (second prong satisfied where driv er was the beneficial owner of vehicle and

respondent was not entitled to assert innocent ownership). Beneficial ownership may be

established with a show ing of who had dominion and control over the vehicle. Police Dep’t v.

Padilla-Barham, OATH Index No. 1356/08, mem. dec. at 3-4 (Jan. 8, 2008), (citing Vergari v.

Kraisky, 120 A.D.2d 739 (2d Dep’t 1986)). Given the tota lity of the circumstances here, I find it

more likely than not, that Mr. Garrick was the be neficial owner of this vehicle and not just the

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incidental driver as Ms. Francis would have this tribunal believe. Dookwa, OATH 2395/14 (titled

owner/girlfriend’s statements that she did not gi ve boyfriend p ermission to use car and had no idea

how he got t he keys a nd currently had no relation ship with him found incredible and supportive of

finding that her boy friend wa s bene ficial owner); Police Dep’t v. Washington , OAT H Index No .

1525/07, mem. dec. at 5 (Mar. 30, 2007) (son wa s beneficial o wner where mother was titled owner

but son exercised “dominion and control” over seized car).

The purpose of the forfeitu re provision in the Krimstock Order is to punish wrongdoers,

not innocent parties. See Pagano , 170 A.D.2d at 35 (“the purpose of the statute [is] to permi t

petitioner to retain the property of criminal wr ongdoers.”). Here, the De partment successfully

defeated Ms. Francis’ claim of innocent ownership.

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. See Police Dep’t v. Price, OATH Index No. 1828/09, mem. dec. at 5 (Dec. 26, 2008). The

nature and circumstances of an arrest can also establish a heightened risk. Dookwa, OATH 2395/14

at 17; Police Dep’t v. Santagata, OATH Index No. 2534/14, mem. dec. at 7 (June 17, 2014) (“the

type of crime or the circumstan ces of the crime ha ve been held sufficient to show a heightened

risk to the public safety”).

Here, the cri minal activity for which Mr. Garrick was arrested is undoubte dly sufficien t to

establish a heightened risk to the public safety. Not only did h e ignore an official curfew, but more

significantly, through his reckless dri ving, he en gaged the p olice in a h igh-speed ch ase, which

culminated in him losing control of the vehicle, striking a marked police car and causing injuries to a

police officer. That was compounded by the contents of the interior of his vehicle and the crowba r

and bolt cutters in the trunk of the vehicle. See Police Dep’t v. Williams , OATH Index No. 570/15,

mem. dec. at 4 (Sept. 17, 2014) (conviction for criminal facilitation in the fourth degree, for driving

getaway car from an armed robbery, sufficient to establish heightened risk).

Ms. Francis offered no a ssurances that, were the vehicle returned to her, Mr. Garrick would

be effectively precluded from access to it, as her testimony that she had severed ties with him was far

from convin cing. Hi s c urrent arrest was not onl y based on reckless drivi ng in an atte mpt to flee

police officers, but also possession o f stolen prop erty and possession of burglar’s tool s. With his

reckless driving, Mr. Garrick placed at tremendous ri sk, other drivers and ci vilians who might have

been legitimately exempt from the curfew, a s well as the police officers that he e ncountered.