[forwarded from the New York Law Journal ]
<http://www6.law.com/lawcom/displayid.cfm?statename=NY&docnum=207788&table=news&flag=full>
Vehicle Forfeiture Laws Challenged
By Leigh Jones
New York Law Journal
The question of whether Nassau County will have to return more than 1,200
vehicles it is holding under its former drunk-driving forfeiture law has
been answered with a decided "maybe."
Nassau County Supreme Court Justice Robert Roberto Jr. has found that the
municipality is not entitled to an automatic stay pending an appeal of an
Appellate Division, Second Department, decision in March that invalidated
its vehicle forfeiture law (Nassau v. Canavan, 20193-99).
But because Nassau did not oppose the defendant's motion to dismiss the
action before Justice Roberto, the judge left open the question of whether
the court will dismiss unresolved forfeiture actions brought under the
invalidated law in cases where the county affirmatively seeks a stay.
The upshot of Justice Roberto's decision in Nassau v. Lutz, 1185-03, is
that the county will have to file more than 1,000 motions to stay if
defendants, whose cars were forfeited under the now-defunct law, oppose the
county's forfeiture action using the Second Department's decision in Nassau
v. Canavan, 20193-99.
And whether the court will grant those motions to stay while an appeal to
Canavan is pending remains unknown. But "as matters stand now," wrote
Justice Roberto, "the statutory basis for the County's forfeiture action no
longer exists, having been struck down as unconstitutional."
Andrew Campanelli, outside counsel for Nassau County hired to pursue its
thousands of civil forfeiture actions, said the county is prepared to file
the motions to stay and also is filing a motion to reargue Justice
Roberto's decision.
"This is one that slipped through the cracks," he said, adding that the
county is "adamant in not returning vehicles to drunk drivers."
Justice Roberto's decision in Nassau v. Lutz, which served to return a 2002
Chevrolet Monte Carlo to the defendant, followed the defendant's motion to
dismiss the county's civil forfeiture action based on Canavan.
Justice Roberto reasoned that since the appellate court previously voided
the county's law as violating due process, and since the county failed to
file a motion to stay in the current action before him, the county could
not receive an automatic stay usually given to municipalities under CPLR
5519(a)(1) while an appeal is pending.
When Canavan was issued March 3, the Nassau County Legislature took swift
action and within days passed a new drunken-driving forfeiture law designed
to cure the constitutional defects of the former statute. Justice Roberto's
decision does not affect cars seized under the new law.
But part of his ruling hinged on the preamble to the new law, in which the
county indicated that it would appeal Canavan to the Court of Appeals.
"By doing so," Justice Roberto wrote, "the County raised the issue of
whether it enjoys a stay pursuant to CPLR 5519(a)(1)."
His two-page decision explained that the stay afforded to a municipality
under CPLR 5519(a)(1) applies to any appeal, irrespective of the level at
which the appeal is taken.
However, the judge continued, the scope of the civil procedure law cannot
serve to declare as constitutional those laws that a decision has declared
unconstitutional, at least in the present case where the county did not
oppose the defendant's motion to dismiss the forfeiture action.
Citing a Second Department decision, Matter of Pokoik v. County of Suffolk,
220 AD2d 13, and other case law, Justice Roberto reasoned that simply
because a municipality appeals a decision, CPLR 5519(a) cannot serve to "
'undeclare' the appellate statement of law."
The judge ordered the vehicle returned free of charge to defendant Robert
Genchi, its owner who was not arrested for drunken driving. Mr. Genchi's
friend, Francine Lutz, was driving his vehicle and arrested for drunken
driving. She is also a defendant in the forfeiture action.
The Canavan decision reversed a lower court ruling and determined that
Nassau's old forfeiture law did not provide the public with sufficient
notice of the type of offending conduct that resulted in vehicle forfeiture.
The old law, which the county began applying to drunken-driving cases in
1999, had prompted numerous constitutional challenges, many of which
focused on excessive fines arguments. The law also had drawn praise from
county officials, who asserted a 35 percent reduction in drunken-driving
offenses in Nassau since its implementation.
Portions of a similar law in New York City were declared unconstitutional
by the 2nd U.S. Circuit Court of Appeals in September. The decision in
Krimstock v. Kelly, 306 F3d 40, held that the law did not provide a prompt
post-seizure hearing to determine if the city had probable cause to seize
the vehicle.
In addition, soon after the appellate ruling in Canavan, a Suffolk County
Supreme Court justice held that the county legislature there failed to cure
due process defects with its forfeiture law that an amendment in 2001
sought to correct.
Keith Lavallee, in Farmingdale, represented Mr. Genchi.
Date Received: May 27, 2003
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