153 Misc. 2d 673 | N.Y. Sup. Ct. | 1992
Law enforcement officials have moved toward increased reliance on civil forfeiture statutes to aid "the war on crime.” The forfeiture concept is justified on many different bases but, in the minds of most of those involved with law enforcement, the main advantage of forfeitures is that they make criminal offenses financially expensive so as to deter those who would engage in similar activity (see, e.g., Cuomo, Asset Forfeitures Bill Framed for Drug War, NYLJ, Jan. 17, 1990, at 39, col 5). Numerous forfeiture laws have been passed recently that are related to specific underlying crimes (e.g., CPLR art 13-A [felonies]; Public Health Law § 3388 [drugs]; Tax Law § 1846 [untaxed cigarettes]; 18 USC § 1961 et seq. [racketeering, RICO]; 18 USC § 1467 [obscene materials]; 21 USC § 881 [a] [drugs]). In this case the New York City Police Department, through its Property Clerk, puts to an unusual use one of New York’s oldest forfeiture provisions, the New York City Administrative Code (first enacted as part of the Code of Criminal Procedure, L 1881, ch 442)
This case, the first of what the court is advised is many, originates from the increased effort by the Police Department to stem a local "quality of life” problem in the Bronx — the growing number of areas with rampant street prostitution. In addition to the traditional procedure of arresting prostitutes, the police are now using female undercover police officers to arrest the consumers or "Johns”. In this case respondent approached an undercover officer at a "known prostitution area” and solicited her to perform oral sex for $20; she agreed. When respondent asked the officer to get into his car to perform the act, she responded that she would meet him "around the corner.” Respondent drove around the corner and was arrested by the "covering” team for patronizing a prostitute (Penal Law § 230.03). Respondent’s 1980 Chevrolet was seized. This court has not been advised of the disposition of the criminal case.
In the instant proceeding, the Property Clerk seeks to have
It appears that the Property Clerk has taken the proper procedural steps for forfeiture (see, Matter of DeBellis v Property Clerk of City of N. Y., 78 NY2d 852; McClendon v Rosetti, US Dist Ct, SD NY, 70 Civ 3851 [1974] [unpublished order], see, 369 F Supp 1391). That is, the Property Clerk has commenced this special proceeding within the requisite time and has served proper papers, in a proper manner, on the persons required to be served — the owner and person from whom the car was seized (CPLR 403; Administrative Code § 14-140).
The first question for decision then is whether respondent’s car has been "employed in aid or furtherance of crime”. Neither the statute nor the cases clearly defines the nexus between a vehicle and an underlying crime which is sufficient to justify the vehicle’s forfeiture.
While many trial court Judges have apparently read the Administrative Code’s forfeiture provisions in a narrow fashion and have found the nexus to be inadequate, the appellate courts have consistently reversed and upheld the forfeitures. For example, the First Department, in reversing lower courts, has recently concluded that a car used to drive away from the scene of the purchase of illicit drugs is used to "aid a crime” (Property Clerk of N. Y. City Police Dept. v Negron, 157 AD2d 602, 603; Property Clerk of N. Y. City Police Dept. v Amato, 171 AD2d 550); the car need not have been used for escape, lookout, concealment, or to facilitate the sale (Property Clerk
This court finds that the Property Clerk has made a sufficient showing here. According to the undisputed facts, respondent suggested that the sexual act be committed in his vehicle; the undercover police officer agreed to perform in the vehicle. Thus, the vehicle was employed "in aid or furtherance of crime.” The vehicle facilitated the crime by permitting the agreed act to be performed in an atmosphere of relative privacy (see, Property Clerk of N. Y. City Police Dept. v Vogel, supra; United States v Premises Known as 3639-2nd St., N.E., 869 F2d 1093, 1096 [8th Cir]). Although the performance of sexual acts in an automobile on the public streets is protected from prosecution for public lewdness (People v McNamara, 78 NY2d 626), that does not prevent a forfeiture here. The act that respondent is proven to have committed, patronizing a prostitute, is a crime whether the consummation of the bargained for, underlying sexual act was to be in a public or a private place.
The Administrative Code applies to any crime or criminal conduct. It is irrelevant that the crime here, a class B misdemeanor, is not one of the more "serious” crimes for which special forfeiture statutes have been written. The language of the statute and the reported cases lead inescapably to the conclusion, that once the Property Clerk commenced this forfeiture proceeding in a proper fashion, an order to forfeit the car is mandatory. Unless the owner of the forfeited property has done "all that reasonably could be expected to prevent the proscribed use of his property” (Calero-Toledo v Pearson Yacht Leasing Co., 416 US 663, 689; United States v One Tintoretto Painting, 691 F2d 603 [2d Cir]; Property Clerk, N. Y. City Police Dept. v Pagano, 170 AD2d 30), the courts
However, that does not end the judicial inquiry. The case presents the question of whether a forfeiture of the magnitude here, the loss of an automobile because the owner seeks to have a prostitute perform a sexual act in it for $20, can pass muster under the Federal or State Constitutions. There are no authorities on the subject under the State Constitution. However, recent cases hold that, under certain circumstances, the imposition of a civil fine may constitute punishment subject to the Eighth Amendment’s proscription against excessive fines. In United States v Halper (490 US 435) the court held that a "civil” sanction which is "overwhelmingly disproportionate” to the goal of compensating the government leads to the presumption that the sanction is "punitive” and subject to the Double Jeopardy Clause. The high court has held that Halper "implies that punitive damages awarded to the Government in a civil action may raise Eighth Amendment concerns” (Browning-Ferris Indus. v Kelco Disposal, 492 US 257, 275, n 21; Ingraham v Wright, 430 US 651, 669, n 37; United States v Halper, 490 US, supra, at 442; see, Note, United States v. Halper, Punitive Civil Fines, and the Double Jeopardy and Excessive Fines Clauses, 66 NYU L Rev 112, 142-147). Many Federal courts have held that the Eighth Amendment applies to civil forfeitures (e.g., United States v Feldman, 853 F2d 648, 663 [9th Cir]; United States v Horak, 833 F2d 1235, 1251 [7th Cir]; United States v Robinson, 721 F Supp 1541, 1543-1545 [D RI]).
The Appellate Division has recently affirmed a holding that a forfeiture under the Administrative Code is a constitutionally valid exercise of the power to impose civil, as opposed to criminal, sanctions (Property Clerk, N. Y. City Police Dept. v Hyne, 147 Misc 2d, supra, at 779, affd 171 AD2d 506, supra). The court found that there are predominating civil aspects to a forfeiture so as to permit a civil proceeding. Thus, under the tests of United States v Ward (448 US 242), Kennedy v Mendoza-Martinez (372 US 144, 168-169) and United States v
"Retribution and deterrence are not legitimate nonpunitive governmental objectives” (Bell v Wolfish, 441 US 520, 539, n 20; Kennedy v Mendoza-Martinez, 372 US, supra, at 168). Of course, every forfeiture proceeding may well have the collateral effect of deterring others from engaging in underlying criminal conduct in the future. However, it appears that Halper (supra), as interpreted by 38 Whalers Cove (supra), requires that each forfeiture must be examined to determine if it is justified by a civil remedial purpose or whether the forfeiture, or portions of it, can be explained only with reference to punitive goals. That means that the court must evaluate the sanction for the underlying crime and determine if the forfeiture in the particular case is unreasonable.
The Cruel and Unusual Punishment Clause of the Eighth Amendment prescribes the imposition of punishment which is "grossly disproportionate” to the crime committed (Salem v Helm, 463 US 277, 290-292). "We have recognized that the Eighth Amendment imposes 'parallel limitations’ on bail, fines, and other punishments, Ingraham v. Wright, [430 US], at 664, and the text [of the Amendment] is explicit that bail and fines may not be excessive” (463 US, supra, at 289). Proportionality review of a penal sanction, such as a forfei
The crime is a minor one. Indeed, the Penal Law defines patronizing a prostitute in the fourth degree as one of New York’s least serious crimes, a class B misdemeanor, one step above a noncriminal violation (Penal Law § 10.00 [6]). The conduct respondent committed here was a nonviolent crime involving only consenting adults, without coercion or duress (compare, Penal Law §§ 230.04, 230.05, 230.06 [where the penalty for patronizing prostitutes who are minors is substantially higher]). Of course, Solem (supra) teaches that the treatment of the offense by the State is the relevant test, not the price charged for the underlying criminal act. The court may not place its own value judgment on the seriousness of the offense. Thus, while the crime is deemed by many to have a serious negative impact on the "quality of life” in the affected neighborhood, the Legislature has treated the offense as relatively insignificant.
The sentence established by New York for the crime is also relatively minor. This crime, as with all class B misdemeanors, is punishable by at most a 3-month jail sentence and a $500 fine (Penal Law § 70.15 [2]; § 80.05 [2]). Thus the State has found that a fine in the amount of $500 is appropriate (regardless of the amount charged by the prostitute). Under the circumstances of this case there is no need to survey other jurisdictions for it is clear that the forfeiture here as well as the crime is essentially minor. (The court would in any event reject the analysis of the Second Circuit in 38 Whalers Cove [supra], where the court looks to the law of other States to see the maximum possible sentence for certain crimes without examining the sentences actually imposed by those jurisdictions.)
Although the value of the vehicle in question has not been definitively established in the papers submitted here, the 1980 Chevrolet has a value of from $550 to $750 (see, e.g., NADA, Appraisal Guide: Official Older Used Car Guide, Val
Thus the petition must be granted.
. In rem forfeitures appear in the early jurisprudence in this country (e.g., The Palmyra, 12 Wheat [25 US] 1, 9 [1827]). Holmes traced the sources of such in rem matters to the Old Testament (Exodus xxi, 28), the Greeks, the Romans, and the early English common law (Holmes, Common Law, at 7-9).
. Proportionality review is explicitly required in some forfeiture statutes such as 18 USC § 1467 (a) (3) (see, United States v California Publishers Liquidating Corp., 778 F Supp 1377 [ND Tex]).
