PROPERTY CLERK OF POLICE DEPARTMENT OF CITY OF NEW YORK v. ROBINSON (2008)

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 F.3d 40 [2d Cir.2002] cert. denied 539 U.S. 969, 123 S.Ct. 2640, 156 L.Ed.2d 675 [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).