GRINBERG v. SAFIR

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Supreme Court, New York County, New York.

Pavel GRINBERG, Petitioner, v. Howard SAFIR et al., Respondents.

Decided: May 18, 1999

New York Civil Liberties Union Foundation, New York City (Arthur Eisenberg, Norman Siegel, Beth Haroules, Steven J. Hyman, Peter Gerstenzang and Steven L. Kessler of counsel), for petitioner. Michael D. Hess, Corporation Counsel of New York City (Daniel S. Connolly, Tahirih Sadrieh, Michael H. Williams and Anthony Crowell of counsel), for respondents.

This CPLR Article 78 proceeding challenges the constitutionality of the City's new driving while intoxicated (DWI) vehicle forfeiture policy.

FACTS

On February 20, 1999, Police Commissioner Safir announced that the City would apply the Property Clerk Forfeiture Law (Administrative Code of City of N.Y. § 14-140) to vehicles operated by individuals arrested for Driving While Intoxicated (Vehicle and Traffic Law § 1192[2] et seq.).   At 10:30 p.m. on February 21, 1999, police stopped and arrested petitioner for DWI.   VTL §§ 1192(2), (3).   The arresting officer concluded that petitioner was intoxicated based on the strong smell of alcohol, watery and bloodshot eyes, and coordination tests.   A breathalyzer indicated 0.11 per cent blood alcohol content, over the 0.10 per cent intoxication threshold.   Officers took petitioner's 1988 Acura for forfeiture.   By letter of February 26, 1999, petitioner's attorneys demanded its return.

By order to show cause 1 and petition dated March 9, 1999, petitioner commenced this proceeding.   Petitioner seeks a final judgment invalidating the City's policy and the taking and retention of his car.   On March 19, 1999, Property Clerk Ryan commenced a separate action against petitioner for a judgment declaring the vehicle forfeited as the instrumentality of the crime of Driving While Intoxicated.   The criminal action is pending.

I

Petitioner challenges the City policy as statutorily unauthorized and pre-empted by state law.

 Administrative Code of the City of New York Section 14-140, adopted under the police powers provision of the Municipal Home Rule Law, defines the status of property by its nexus to crime and declares the City's consequent right to hold it.   MHRL [10](1)(ii)(a)(12).   Administrative Code § 14-140(4)(b) directs that certain property, including that “suspected of being used as a means of committing crime or employed in aid or furtherance of crime․shall be given․ into the custody” of the Police Department property clerk.   The law provides that anyone who used such property shall not be deemed the lawful claimant.   Admin.  Code § 14-140(e)(1).   The City's forfeiture procedures (Rules of the City of New York, Title 38, chapter 12, subchapter B), codified pursuant to federal consent decrees (see McClendon v. Rosetti, 369 F.Supp. 1391 [S.D.N.Y.] ), permit the property clerk to decline to return property if there is “reasonable cause to believe that [it] ․ was the proceeds or instrumentality of a crime․”  38 RCNY 12-36.   The property clerk then must “cause a civil forfeiture proceeding or other similar civil proceeding to be initiated” (38 RCNY 12-36) either before or within 25 days of a claimant's demand.

 Federal and state courts have assumed that the Administrative Code and codified rules form a proper statutory basis for a forfeiture action or proceeding.  (See Butler v. Castro, 896 F.2d 698 [2d Cir.];  Williams v. N.Y.C. Police Department, 930 F.Supp. 49 [S.D.N.Y.];  DeBellis v. Property Clerk of City of N.Y., 79 N.Y.2d 49, 58, 580 N.Y.S.2d 157, 588 N.E.2d 55;  Property Clerk of N.Y. City Police Dept. v. Ferris, 77 N.Y.2d 428, 430, 568 N.Y.S.2d 577, 570 N.E.2d 225.)   Thus, a car used to transport a buyer to and from a drug purchase was forfeited (Property Clerk v. Ferris, supra), like one used to solicit for prostitution (Property Clerk, N.Y. City Police Dept. v. Small, 153 Misc.2d 673, 582 N.Y.S.2d 932).   Just because one can buy contraband or patronize a prostitute without a car does not alter the vehicle's nature as an instrumentality subject to forfeiture.   Operation of a motor vehicle is a necessary element of DWI. VTL § 1192(2), (3).   A drunk driver's automobile is the quintessential instrumentality of a crime-the sine qua non without which the crime could not have been committed.   It is irrelevant that the vehicle is not needed as evidence or that the District Attorney might not object to petitioner's request for its return.   An independently elected prosecutor cannot bind the Property Clerk, a non-party to the criminal action.   See Property Clerk of N.Y. City Police Dept. v. Lanzetta, 157 A.D.2d 600, 550 N.Y.S.2d 349 (1st Dept.).

 State law does not preempt either the new City policy or the local law which it implements.   The state asset forfeiture law (CPLR Article 13-A) does not apply to petitioner, who is not charged with a felony.   CPLR 1352 explicitly preserves the availability of other rights and remedies provided by law.   Article 13-A “do[es] not limit or supersede” Administrative Code Section 14-140.  Property Clerk v. Ferris, supra at 431, 568 N.Y.S.2d 577, 570 N.E.2d 225.   Nothing in Article 13-A's legislative history indicates that the State intended to occupy the field.   New York has a plethora of disparate forfeiture statutes; 2  the Legislature has made no attempt at overall recodification or coordination.   There is no evidence elsewhere in state law that the local forfeiture law or the new DWI policy violates overriding State policy.   The new City policy implements current law;  it needs no additional legislative authorization.

II

 Petitioner asserts that the City unconstitutionally violated the separation of powers by imposing an additional DWI sentence, beyond that authorized by state law.   See People v. Letterlough, 86 N.Y.2d 259, 631 N.Y.S.2d 105, 655 N.E.2d 146 (sentencing judge required “CONVICTED DWI” sign on car).   No case has deemed forfeiture a criminal sentence if sought in a separate civil action.   Cases under the City forfeiture law have been sustained irrespective of the status of the related criminal cases.   Property Clerk v. Ferris, supra (post-sentence);  see DeBellis v. Property Clerk, 79 N.Y.2d 49, 580 N.Y.S.2d 157, 588 N.E.2d 55 (post-guilty plea, pre-sentence);  Moreno v. City of New York, 69 N.Y.2d 432, 515 N.Y.S.2d 733, 508 N.E.2d 645 (criminal charges dismissed).

Petitioner argues that forfeiture constitutes punishment under federal constitutional law, violating Letterlough.  Austin v. U.S., 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488,3 held that forfeitures effected monetary deprivations, triggering the Eighth Amendment Excessive Fines Clause. It did not hold that forfeiture constitutes a sentence or punishment for double jeopardy or separation of powers analysis.4

Petitioner asserts that the forfeiture sought here should be deemed criminal, not civil, because the City brought the forfeiture action against the petitioner instead of his car.   Civil forfeiture actions for instrumentalities were traditionally brought in rem against the “guilty” property.   E.g., The Palmyra, 25 U.S. (12 Wheat.) 1, 14, 6 L.Ed. 531;  see United States v. James Daniel Good Real Property, 510 U.S. 43, 57-58, 114 S.Ct. 492, 126 L.Ed.2d 490.   Jurisdiction was obtained by seizure, attachment or lien because absent or unknown owners could not be personally served.   The litigation sought only the property and not a money judgment;  in personam jurisdiction was unnecessary.   In contrast, collection of fines, assessments and penalties need fully exportable money judgments entitled to full faith and credit, requiring in personam jurisdiction.   In personam civil proceedings to collect fines, assessments and penalties from criminal defendants have been held punitive for double jeopardy analysis.5  United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487;  Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767.   However, suits to forfeit contraband or instrumentalities are considered civil, remedial and non-punitive.   The nature and purpose of the remedy sought is significant, not the form of the action or the method of obtaining jurisdiction.  United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (house used as instrumentality of crime).

The City's forfeiture action appropriately seeks a declaratory judgment (see Property Clerk of N.Y. City Police Dept. v. Jacobs, 234 A.D.2d 96, 650 N.Y.S.2d 711 [1st Dept.] ), requiring a plenary action against an individual and personal service.   CPLR 3001.   The City seeks no relief other than a declaration of rights in the vehicle.   Just as in rem jurisdiction requires seizure or attachment, the City law applies only to what is in the Property Clerk's possession.   Irrespective of form, the action seeks what is familiarly called “in rem forfeiture.”   Civil in form and substance, it is not punishment under separation of powers analysis.

III

 Petitioner challenges the taking and retention of his car as an unreasonable seizure.   U.S. Const. Amend. 4;  N.Y. Const. Art. I, § 12.6  Petitioner argues that the police took and kept the car without cause or necessity and without obtaining a warrant before or after the seizure.   The seizure was reasonable under three theories:  plain view, incident to arrest and the automobile exception.

 The plain view exception permits warrantless seizure of contraband, instrumentalities or evidence found where it is immediately apparent to permissible police observation.  Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112;  People v. Diaz, 81 N.Y.2d 106, 110, 595 N.Y.S.2d 940, 612 N.E.2d 298.   If an object is in open view, its observation neither impinges on its owner's privacy nor constitutes a search.   See Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347.   “Immediately apparent” does not mean at first glance, but before conclusion of the officer's on-scene inquiry.   See People v. Martinelli, 117 Misc.2d 310, 458 N.Y.S.2d 785 (Sup.Ct. Kings Cty.).

Petitioner here has not challenged the legality of the stop;  he may do so in the pending prosecution.7  The record shows no reason for presuming the stop to have been improper.   Like other pedestrians or motorists, police were able and permitted to observe petitioner driving on a public street.   Concluding that he was intoxicated, the police had probable cause to believe that petitioner committed the qualitative, “common law” count (VTL § 1192 [3] ), before the breathalyzer test, which confirmed the observations and supported the quantitative count (VTL § 1192[2] ).   It was immediately apparent during the stop that the car was the crime's instrumentality subjecting it to seizure.

 Incident to lawful arrest, police may search the area within the arrestee's control for contraband, instrumentalities or evidence, without a warrant, because a minimally intrusive, spatially limited, contemporaneous search does not encroach appreciably more on an arrestee's privacy than the arrest.  Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685;  People v. DeSantis, 46 N.Y.2d 82, 412 N.Y.S.2d 838, 385 N.E.2d 577;  see Kamins, New York Search and Seizure, 283.   Petitioner has not here disputed the basis of his arrest;  he may do so in Criminal Court.   Arrested for DWI, petitioner was not legally able to reassume control of the vehicle.   Given the car's obvious instrumentality status, only the police had the right of possession.   Because an automobile is highly mobile, secretable and transferable, retention was necessary.   Given the intention to seek forfeiture, the driver's spouse might be expected to conceal or transfer it.

 The automobile exception permits police to stop and search a vehicle if they have probable cause that it contains contraband, instrumentalities or evidence of crime.  Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031;  People v. Blasich, 73 N.Y.2d 673, 543 N.Y.S.2d 40, 541 N.E.2d 40.   There is less expectation of privacy in a car than in a home or office;  its inherent mobility is an exigent circumstance.   See California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406.   If there is probable cause, no warrant is required to search a car for an instrumentality of a crime;  logically, no warrant is required to seize a car that is itself an instrumentality.   See Capraro v. Bunt, 44 F.3d 690 (8 Cir.);  U.S. v. Cooper, 949 F.2d 737 (5 Cir.).   See also People v. Quackenbush, 166 Misc.2d 364, 636 N.Y.S.2d 572 (A.T., 2d Dept.) (vehicle impounded to test for faulty brakes after fatal accident).

 Petitioner's arrest and car seizure were virtually simultaneous, inexorable consequences of the stop.   No warrant was required to arrest petitioner or to seize his car;  no warrant was needed to validate his arrest and the car's retention.   See Florida v. White, 526 U.S. 559, 119 S.Ct. 1555, 143 L.Ed.2d 748 (1999);  U.S. v. Valdes, 876 F.2d 1554 (11th Cir.);   cf.  U.S. v. Lasanta, 978 F.2d 1300 (2d Cir.) (defendant arrested on unrelated warrant, separated by considerable distance from vehicle parked on private property).   Once an object is permissibly seized as an instrumentality during an arrest, no warrant, pre-trial hearing or judicial approval is needed for retention during the criminal action. See People v. Niang, 160 Misc.2d 500, 609 N.Y.S.2d 1017 (N.Y.C.Crim. Ct., N.Y. Cty.).   It cannot be said here, as a matter of law, that the warrantless arrest, seizure or retention is unconstitutional.

IV

 Petitioner alleges that the new City policy violates the Due Process clauses of the federal and state constitutions because it authorizes the police to take and retain a vehicle without either a pre-seizure or post-seizure hearing.8  U.S. Const.   Amend. 14;  N.Y. Const. Art. 1, § 6.

A

 The City contends that petitioner is barred from asserting a due process claim.   Respondents assert that petitioner should be deemed a member of the McClendon class (McClendon v. Rosetti, 369 F.Supp. 1391 [S.D.N.Y.] ) estopped from attacking the constitutionality of the procedures validated by the consent decrees.   The United States Supreme Court has narrowly defined when a prior class action has preclusive effect on class members.

Basic principles of res judicata (merger and bar or claim preclusion) and collateral estoppel (issue preclusion) apply․ A judgment in favor of either [the class or the defendant] is conclusive in a subsequent action between them on any issue actually litigated and determined, if its determination was essential to that judgment.

Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 874, 104 S.Ct. 2794, 81 L.Ed.2d 718 (citations omitted).

Assuming arguendo that the McClendon class was not limited to persons whose property was held by the property clerk prior to the end of that litigation in 1993, the 1974 and 1993 decrees cannot be given preclusive effect here.   The issues actually litigated and determined in McClendon differ from those now raised.   See also, O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158.  McClendon found the prior procedure inadequate inter alia because it placed the burden of proof on the property owner instead of the City. McClendon did not afford petitioner, or anyone who can be considered in privity with him, a full and fair opportunity to litigate the issues raised here.   See Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725;  Restatement, Second (Judgments) § 27;  2 Chase, Weinstein-Korn-Miller CPLR Manual § 25.03(d) (rev. 2d ed.).   Fundamental fairness requires that the Court consider these issues on the merits.

B

 The Due Process Clause of the Fourteenth Amendment guarantees that, absent extraordinary circumstances, “individuals must receive notice and an opportunity to be heard before the Government deprives them of property.”  U.S. v. James Daniel Good Real Property, 510 U.S. 43, 48, 114 S.Ct. 492, 126 L.Ed.2d 490;  see Fuentes v. Shevin, 407 U.S. 67, 80-82, 92 S.Ct. 1983, 32 L.Ed.2d 556.   Civil forfeiture actions inherently may present such extraordinary circumstances.  Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 676-80, 94 S.Ct. 2080, 40 L.Ed.2d 452 (sustaining seizure without hearing of yacht as instrumentality of crime);  see also, U.S. v. Eight Thousand Eight Hundred and Fifty Dollars in U.S. Currency, 461 U.S. 555, 562 n. 12, 103 S.Ct. 2005, 76 L.Ed.2d 143 n. 12 (hereinafter “8,850 Dollars”);  Matter of DeBellis v. Property Clerk of City of N.Y., 79 N.Y.2d 49, 57, 580 N.Y.S.2d 157, 588 N.E.2d 55.   A pre-hearing seizure of an instrumentality for forfeiture comports with due process when

the seizure has been directly necessary to secure an important governmental or general public interest.   Second, there has been a special need for very prompt action.   Third, the State has kept strict control over its monopoly of legitimate force:  the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.

Calero-Toledo, 416 U.S. at 678, 94 S.Ct. 2080, quoting Fuentes, 407 U.S., at 91, 92 S.Ct. 1983.

 Petitioner urges this Court to substitute the Supreme Court's analysis in James Daniel Good, supra.9  Because the vehicle is a mobile instrumentality, and because its seizure was a necessary consequence of the contemporaneous arrest, Calero-Toledo provides the apposite analysis.   The seizure satisfies due process under either test.

The seizure serves a significant governmental interest:  It permits the Property Clerk to assert jurisdiction in order to conduct a forfeiture proceeding.  Calero-Toledo, supra, at 679, 94 S.Ct. 2080;  see Part I, supra.   Moreover, immediate seizure of a drunk driver's automobile upon arrest is necessary because the arrestee is legally and physically incapable of driving.10  Pre-seizure notice and hearing might prevent police from effecting a forfeiture.   A car, like the yacht in Calero-Toledo, is property “that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given.”  416 U.S., at 679, 94 S.Ct. 2080;  see State v. Konrath, 218 Wis.2d 290, 577 N.W.2d 601 (police unable to execute seizure order for convicted drunk driver's vehicle because vehicle had disappeared).   In contrast, the belated land seizure held unconstitutional in James Daniel Good demanded no immediate action.

Unlike the creditors in Fuentes, supra, who effected the seizure to collect on a debt, the arresting officers are government employees who derive no economic benefit.   The seizure is simultaneous with a DWI arrest for which the police must have probable cause.   The arresting officer evaluates an offense committed in his or her presence.   Indicia of alcohol consumption and objective tests confirming the presence of alcohol minimize the risk of erroneous deprivation.

While the City's DWI policy prevents accused drunk drivers from using property before a determination in the criminal action, the City's interest in deterring drunk driving and ensuring enforceability of a subsequent forfeiture order clearly outweighs the private interest affected.11  See Morgenthau v. Citisource, 68 N.Y.2d 211, 221, 508 N.Y.S.2d 152, 500 N.E.2d 850.

 Petitioner argues that the City's retention of his car, without a hearing, for several months prior to conclusion of the forfeiture action, violates due process.

 Due process requires a meaningful adversarial proceeding at a meaningful time. 8,850 Dollars, 461 U.S., at 562-63, 103 S.Ct. 2005;  Fuentes, 407 U.S., at 80, 92 S.Ct. 1983.   Whether the delay between a seizure and the initiation of judicial proceedings violates due process is judged by the standards for determining a constitutional speedy trial violation. 8,850 Dollars, 461 U.S., at 564, 103 S.Ct. 2005.   The factors include:  “length of the delay, the reason for the delay, defendant's assertion of his right, and prejudice to the defendant.”  Id., citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101.   In 8,850 Dollars, defendant unsuccessfully claimed that the 18 month post-seizure delay in commencing the forfeiture proceeding violated his due process right to a hearing at a meaningful time.   The Court recognized that a prior or contemporaneous civil proceeding “could substantially hamper” a pending criminal action to the detriment of both the prosecution and the criminal defendant-property claimant.12 8,850 Dollars, supra, 461 U.S. at 567, 103 S.Ct. 2005.   If pendency of a criminal action is a legitimate reason for the delayed filing of a forfeiture proceeding, then retention of the subject vehicle without a hearing, while the criminal action is pending, is also permissible.13

Retention prevents the vehicle from being used for repeated illegal activity.   An automobile is an integral part of DWI;  it poses the threat of being used as an “instrumentalit[y] of death” should the crime be repeated.  Property Clerk, N.Y. City Police Dept. v. Waheed, 165 Misc.2d 382, 386, 630 N.Y.S.2d 644 (Sup.Ct., N.Y.Cty.).   Just as there is a strong public interest in withholding a non-contraband murder weapon from a homicide defendant, there is a strong public interest in withholding a car from a DWI defendant.

Petitioner argues that the City's forfeiture law does not provide owners with the procedural protection critical in Citisource, supra, i.e., a hearing within five days of the ex parte attachment.   However, “ ‘due process is a flexible constitutional concept calling for such procedural protections as a particular situation may demand.’ ”  Citisource, at 221, 508 N.Y.S.2d 152, 500 N.E.2d 850, citing LaRossa, Axenfeld & Mitchell v. Abrams, 62 N.Y.2d 583, 588, 479 N.Y.S.2d 181, 468 N.E.2d 19.   In Citisource, after arrests for bribery and larceny, the prosecutor obtained ex parte attachment orders for $2 million of the defendants' funds as alleged proceeds of the crimes.   It is not immediately apparent that attached bank accounts are criminal proceeds.   In contrast, when police have probable cause to arrest a drunk driver, the defendant's car is undeniably the instrumentality of the charged crime.   The nexus between the crime and the property, and thus the justification for forfeiture, is obvious at arrest.   There has been no showing that any additional or substitute safeguard would lessen the risk of an erroneous deprivation of petitioner's property.14

D

 Petitioner argues that even if the City procedures do not violate federal due process, they violate state due process.   N.Y. Const. Art. 1, § 6. While the federal and state Due Process clauses are similar, our state clause occasionally has been accorded wider scope. E.g., Cooper v. Morin, 49 N.Y.2d 69, 79, 424 N.Y.S.2d 168, 399 N.E.2d 1188;  Sharrock v. Dell Buick-Cadillac, Inc., 45 N.Y.2d 152, 159, 408 N.Y.S.2d 39, 379 N.E.2d 1169.   Petitioner asserts that state due process is more protective, incorrectly assuming that CPLR Article 13-A evinces a policy decision to reject in rem forfeitures.   Rather, the breadth of Article 13-A relief necessitates in personam jurisdiction.   See Parts I and II supra.

Neither federal nor state due process requires a pre- or post-seizure evidentiary hearing for seizure and retention of DWI vehicles for forfeiture during pendency of the criminal action.

V

 Petitioner challenges the City forfeiture policy as an excessive fine.  U.S. Const. Amend. 8;  N.Y. Const. Art. I, § 5. New York's Excessive Fines clause requires the same analysis as the federal, and provides no greater protection.15

 If a civil forfeiture contains a punitive element, it is deemed a fine under the Eighth Amendment despite its remedial purpose, and must be analyzed for excessiveness.  Austin v. U.S., 509 U.S. 602, 621-22, 113 S.Ct. 2801, 125 L.Ed.2d 488 (courts may develop case-specific tests of excessiveness).   The City DWI forfeiture policy is punitive for Eighth Amendment purposes under Austin:  It has an “escape hatch” for innocent owners;  it links the forfeited property directly to the charged crime;  it lacks specific correlation between the property's value and the crime's social cost.

 While the forfeiture sought may be deemed a “fine”, it is not excessive when analyzed under any of the three tests advanced for measuring excessiveness:  proportionality,16 instrumentality 17 or a mixed instrumentality-proportionality analysis.18

Petitioner's vehicle is the instrumentality of a charged crime, inseparable from it, and its prerequisite.   Petitioner owns the car and drove it at the time of the alleged offense.   The owner's role and his use of the property were temporally and spatially coextensive with the offense charged.

DWI is a serious crime, in both sentence and effect.   As a first offense it is a misdemeanor, with a maximum sentence of one year jail, a fine of $1,000 and three years' probation, or a combination, plus loss of driving privileges.  VTL § 1193(b).   For ten years after conviction, a subsequent offense is a felony, with up to four year's possible imprisonment.   VTL § 1193(1)(c)(ii);  P.L. § 70.00. DWI is indeed “a crime which injures and kills,19 and is an unparalleled public menace.”  Property Clerk v. Waheed, 165 Misc.2d 382, 386, 630 N.Y.S.2d 644.   The “threat posed by drunk drivers” is “empirically irrefutable.”  People v. Letterlough (dissent per Bellacosa, J.), 86 N.Y.2d 259, 277, 631 N.Y.S.2d 105, 655 N.E.2d 146.

Petitioner estimates that the eleven year old car is worth $2,000. While there is no evidence of his wife's condition at the scene, as a passenger she presumably was aware of petitioner's condition, whatever it was, and acquiesced in his driving.   When the gravity of the offense and its unquestioned societal impact are compared with petitioner's and his wife's inconvenience, the vehicle's retention and forfeiture is not unreasonably harsh as a matter of law.   Given the severity of the available sentence, forfeiture of a used car valued at twice the maximum fine is not grossly disproportionate.   Neither is this instrumentality forfeiture greater in relation to the offense than others sustained.20

In sum, the City's DWI forfeiture policy does not violate the Excessive Fines Clause, as a matter of law, either facially or as applied to petitioner's vehicle.

CONCLUSION

Petitioner has not met his burden of demonstrating that the City DWI forfeiture policy is unconstitutional, contrary to law or arbitrary and capricious, either on its face or as applied to him.   Accordingly it is ADJUDGED that the petition is denied and the proceeding is dismissed.

[Portions of opinion omitted for purposes of publication.] 21

FOOTNOTES

1.   After argument on March 11, 1999, this Court denied petitioner's request for a temporary restraining order (1) directing return of his car pending judgment and (2) enjoining the City from commencing a forfeiture proceeding.   Likely inconvenience is not proof of immediate and irreparable injury under CPLR 6313(a).

2.   E.g., Pub. Health L. § 3388;  Penal Law §§ 410.00, 415.00, 420.00, 420.05;  Tax L. §§ 1846, 1847, and 1848.

3.   Austin v. United States, 509 U.S. 602, 610, 113 S.Ct. 2801, 125 L.Ed.2d 488 relied on United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487.   In 1997, the Supreme Court “disavow[ed]” Halper' s analysis.  Hudson v. United States, 522 U.S. 93, 96, 118 S.Ct. 488, 139 L.Ed.2d 450.  Austin's current vitality is questionable.

4.   While forfeiture may have a punitive aspect, petitioner mistakenly assumes that recognizing it dictates that Letterlough was violated.   Most civil litigation has a punitive or deterrent aspect.   Monetary damages for negligence are compensatory, but are apportioned according to the parties' culpability.   The civil law seeks both to deter substandard conduct by the defendant, and to provide incentive to others.   See Prosser and Keeton, Torts, § 4 at 25-26 (5th ed.).

5.   Petitioner does not challenge the City policy on double jeopardy grounds.   U.S. Const.   Amend. 5;  N.Y. Const.   Art. I § 6.

6.   Petitioner asserts that the DWI seizure policy, even if constitutional under federal law, is unconstitutional on independent state grounds.   However, the circumstances presented here must be analyzed the same way under federal and New York constitutional law.   To the extent that People v. P.J. Video, 68 N.Y.2d 296, 508 N.Y.S.2d 907, 501 N.E.2d 556, cert denied 479 U.S. 1091, 107 S.Ct. 1301, 94 L.Ed.2d 156, may suggest a heightened level of scrutiny, that case involved First Amendment concerns not present here.

7.   See CPL 710.20 (motions to suppress physical evidence [subd. 1] and chemical tests [subd. 5];  People v. Dory, 59 N.Y.2d 121, 463 N.Y.S.2d 753, 450 N.E.2d 673 (arresting officer's observations as fruit of improper stop);  see People v. Evans, 152 Misc.2d 960, 968, 579 N.Y.S.2d 853, aff'd 162 Misc.2d 517, 620 N.Y.S.2d 26 (A.T. 1st Dept.) (visual, olfactory and auditory observations suppressed).

8.   Petitioner suggests that the policy was prematurely applied when the police stopped him 1 1/212 hours before the policy's announced start.   Petitioner cannot claim either that he lacked notice for due process purposes or that he was misled.   Because the new policy implements existing law, the City could have taken the car for forfeiture without announcement.

9.   James Daniel Good, supra (invalidating the seizure for forfeiture of a house as the instrumentality of a drug offense for which the owner had pled guilty four years before) imported the balancing test of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (hearing for curtailment of social security benefits).  Mathews requires consideration of the private interest affected, the risk of an erroneous deprivation and probable value of additional safeguards, balanced with the government interests and fiscal and administrative burdens.

10.   The law does not require police to assess the passengers and turn over the vehicle to someone who might cause an accident or fail to return it.

11.   If the Court were to apply Mathews, the balance would weigh heavily in the City's favor.   Besides the factors considered supra, a hearing would be impracticable if required as part of the arrest or arraignment.   Because the City law applies only to items in the property clerk's possession (see Part I), return of the vehicle would prevent the City from commencing a forfeiture action.

12.   In addition to the criminal civil trials, and any pre-trial hearings, petitioner would require at least one more evidentiary hearing, pre- or post-seizure.   Duplicative proceedings could interfere with the prosecution and prejudice petitioner, given the absence of a self-incrimination privilege in civil cases.   See Turner Press, Inc. v. Gould, 76 A.D.2d 906, 429 N.Y.S.2d 239 (2d Dept.).   During the pendency of the criminal action, a redundant civil hearing would be of little practical benefit to accused owners, while imposing a substantial burden on the City and the courts.

13.   Under the City forfeiture law, pre-commencement deprivation is brief.   The property clerk, upon demand, must commence a forfeiture action within 25 days.   Erroneous deprivation can be shortened by an Article 78 proceeding, seeking immediate relief.   Petitioner had an opportunity to seek immediate return of his car, and was heard by this Court within 18 days of the seizure.

14.   One New York forfeiture statute, the “Headshop Law” (General Business Law § 852 subd. 2) violated due process because it did not provide for a hearing.   Unlike the City law, GBL § 852 subd. 2 provided for automatic forfeiture of drug paraphernalia upon seizure, with no adversary judicial process whatsoever.  Franza v. Carey, 102 A.D.2d 780, 478 N.Y.S.2d 873 (1st Dept.).

15.   New York's clause contains the identical text of the federal.   See People ex rel Kemmler v. Durston, 119 N.Y. 569, 24 N.E. 6, aff'd sub nom. In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519.   There is no evidence that incorporating the Eighth Amendment text into the State Constitution in 1846 evinced a different meaning or scope.  Id. See People v. Hale, 173 Misc.2d 140, 661 N.Y.S.2d 457 (Sup.Ct., Kings Cty.).   The rare New York cases that construed the New York Excessive Fines Clause have not concluded that it differs from the federal provision.   See People v. Saffore, 18 N.Y.2d 101, 271 N.Y.S.2d 972, 218 N.E.2d 686;  Seril v. New York State Division of Housing and Community Renewal, 205 A.D.2d 347, 613 N.Y.S.2d 157 (1st Dept.), app. withdrawn 84 N.Y.2d 1008, 622 N.Y.S.2d 919, 647 N.E.2d 125.   Neither is there any unique tradition or attitude of what constitutes an excessive fine to define it differently under New York law.   See People v. P.J. Video, 68 N.Y.2d 296, 302-3, 508 N.Y.S.2d 907, 501 N.E.2d 556 (standards for analysis of parallel federal and state provisions).

16.   U.S. v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314, invalidated criminal forfeiture of $357,144, which defendant was convicted of exporting and failing to disclose.   The criminal statute required the judge to direct forfeiture upon sentence.   The Supreme Court measured excessiveness by whether the property's value is “grossly disproportional to the gravity of [the] offense.”  Id. 524 U.S. at 323, 118 S.Ct. 2028.   It held that the seized $357,144, while the subject of the crime of failure to report, was not its instrumentality.  Id. 524 U.S. 321, 329, note 9, 118 S.Ct. 2028, 141 L.Ed.2d 314. It is questionable whether the Court would analyze a separate civil instrumentality forfeiture by the same proportionality analysis.   See id. at 328, note 8, 118 S.Ct. 2028.

17.   The Fourth Circuit has found proportionality analysis inapplicable to instrumentalities, as having been erroneously imported from cruel and unusual punishment analysis.  U.S. v. Chandler, 36 F.3d 358, cert. denied, 514 U.S. 1082, 115 S.Ct. 1792, 131 L.Ed.2d 721.   The Chandler test examines the nexus between the offense and the property, and the extent of the property's role in the offense, the owner's role in the offense, and the possibility of separating offending property from the remainder.   See Austin v. U.S., supra, concurring op. per Scalia, J., 509 U.S. at 628, 113 S.Ct. 2801 (recommending a similar nexus test).

18.   U.S. v. Milbrand, 58 F.3d 841 (2d Cir.), cert denied 516 U.S. 1182, 116 S.Ct. 1284, 134 L.Ed.2d 228 (test considering [1] nature of the property and effect of its forfeiture on innocent third parties, compared with gravity of the offense and possible sentence;  [2] relationship between the property and the offense;  and [3] degree of owner's culpability);  Attorney General v. One Green 1993 Four Door Chrysler, 217 A.D.2d 342, 636 N.Y.S.2d 868 (3d Dept.) app dismissed, lv. denied 88 N.Y.2d 841, 644 N.Y.S.2d 682, 667 N.E.2d 332 (in accord).

19.   Respondents, at oral argument upon submission, indicated that annually, DWI causes over 50 deaths and over 2,000 injuries, and that first offenders cause 85 percent of DWI fatalities (100 per cent this year).

20.   See, e.g., U.S. v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (house forfeited for marijuana grown on property);  U.S. v. Milbrand, 58 F.3d 841 (2d Cir.), cert denied 516 U.S. 1182, 116 S.Ct. 1284, 134 L.Ed.2d 228;  U.S. v. Chandler, 36 F.3d 358 (4th Cir.), cert. denied, 514 U.S. 1082, 115 S.Ct. 1792, 131 L.Ed.2d 721 ($569,000 property forfeited for 130 drug transactions);  Property Clerk v. Ferris, 77 N.Y.2d 428, 568 N.Y.S.2d 577, 570 N.E.2d 225 (5 year old automobile used to transport buyer to purchase of misdemeanor weight drugs);  Attorney General v. One Green 1993 Four Door Chrysler, 217 A.D.2d 342, 636 N.Y.S.2d 868, app. dismissed, lv. denied 88 N.Y.2d 841, 644 N.Y.S.2d 682, 667 N.E.2d 332 (new automobile used to transport drugs);  Property Clerk v. Small, 153 Misc.2d 673, 582 N.Y.S.2d 932 (automobile valued at $550-$750 used to patronize a prostitute for $20 fee;  maximum permissible fine $500).

21.   Complete text published in New York Law Journal, May 25, 1999, at 26, col. 5.

MICHAEL D. STALLMAN, J.

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