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Court Discusses Forfeiture of Property Used to Commit a Crime

The Facts:

A special proceeding has been instituted to declare a forfeiture of respondent’s 1987 Volkswagen which was seized during the course of his arrest on a drug possession charge.
The arresting officer claims that he observed respondent arriving in his vehicle at a known drug location, then he saw him exit the vehicle and enter an abandoned building where he purchased a white glassine envelope alleged to contain heroin. A New York DWI Lawyer said after returning to the vehicle and driving away, respondent was apprehended and placed under arrest and his vehicle seized.

Respondent confirms the arresting officer’s version of the events and states that the location of the drug purchase was four blocks from his home; that respondent is enrolled in a drug rehabilitation program and is a traveling salesperson, using his car regularly to call on clients.
Respondent was charged with criminal possession of a controlled substance in the seventh degree but pleaded guilty to the reduced charge of disorderly conduct, a criminal law violation.

The Issues:

The prime issue is what nexus must exist between the property seized as a means of committing crime or employed in aid or furtherance of crime and the crime it allegedly aided in order to subject the property to forfeiture.

The Ruling:

The Code provides for forfeiture of any property that has been used as a means of committing crime or employed in aid or in furtherance of crime. In light of respondent’s claim that he made the purchase four blocks from his home and that the car was merely the method of locomotion, the question before the court is how substantial a nexus need be shown between the acts constituting the alleged crime and the use of the vehicle.

A New York DWI Lawyer said in the absence of case law discussing the issue, instruction is sought from cases decided under statutes employing similar language or covering similar subject matter.

First, the Code makes it unlawful to move undocumented aliens within the United States by means of transportation or otherwise, in furtherance of such violation of law. In the case of United States v. Moreno, the defendant was transporting alien workers from one job site to another as part of the ordinary and required course of his employment as company foreman. Noting that the statute is silent as to the specific circumstances that must exist before an act of transporting an undocumented alien is in furtherance of such violation of law, the court held that there must be a direct or substantial relationship between that transportation and its furtherance of the alien’s presence in the United States, and that the foreman’s transportation of the aliens was too attenuated to come within the boundaries of the statute. A Nassau County DWI Lawyer said that while the court in Moreno referred to the rule of strict construction for penal statutes, as well as to a public policy basis for its interpretation, the basis for the decision was the need to ascribe meaning to the “in furtherance” language of the statute.

Second, Public Health Law provides for the seizure and forfeiture of vehicles, vessels or aircraft unlawfully used to conceal, convey or transport controlled substances. In addition, forfeiture is authorized if a vehicle is used to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase or sale of any controlled substance.
The pertinent differences between the PHL and the Code provisions are as follows: while forfeiture pursuant to the Code may be for use of property in connection with any crime (felony or misdemeanor, drug-related or otherwise), under the PHL it is authorized only if used in connection with acts or conduct which would constitute a drug-related felony; the Code provision applies to the unlawful use of property, while the PHL is restricted to seizure of any vehicle, vessel or aircraft; the Code contains no express provision authorizing forfeiture of vehicles used to transport the contraband, while the PHL is replete with such terms (transport, carry, convey, possess); with respect to property that is neither contraband nor proceeds of a crime, the Code authorizes forfeiture only if it has been used as a means of committing crime or employed in aid or furtherance of crime, while the PHL authorizes forfeiture of vehicles used to facilitate the illegal activity as well as for transportation of the contraband.
In the case of Henry v. Castagnaro, the court was faced with determining the meaning of facilitate under the above section of the PHL. Observing its similarity to the Federal Transportation Act in providing for forfeiture of any vehicle used or intended to be used to facilitate the transportation or sale of a controlled substance, the court applied the federal rule that to be forfeited, a vehicle must have some substantial connection to, or be instrumental in, the commission of the underlying criminal activity which the statute seeks to prevent.
In contrast, the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 subjects to forfeiture all conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of controlled substances. The use of the words “in any manner” in that statute, and the absence of the “substantial connection” language found in the legislative history of the complementary provision (forfeiture actions against money or other things of value negotiated in exchange for drugs, added in 1978), demonstrate a congressional intent to have the statute apply to a more extensive range of activity.
In the case at bar, respondent was not a seller; he was not using the vehicle for escape, lookout, or concealment; and, he did not drive to a prearranged location at some distance where the use of the vehicle made the crime any easier to commit. Here, the vehicle’s connection to the underlying drug crime is too weak. Petitioner has failed to demonstrate a sufficient nexus between the alleged crime and the use of the vehicle. Thus, it is not entitled to retain the automobile, and respondent is entitled to its return.
In sum, the forfeiture is denied.
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