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Pursuant to the foregoing undisputed facts

The matter at bar is a civil forfeiture proceeding wherein the plaintiff/claiming authority, Suffolk County Attorney seeks the forfeiture of a 1967 Chevrolet owned by defendant.

A Nassau County Criminal attorney said that defendant was arrested in June 2006 for driving while intoxicated. He submitted to a blood test after being transported to the hospital and it was determined that his blood alcohol level was 19%. Prior thereto, in January 1984, criminal defendant was convicted of driving while intoxicated in violation of Vehicle and Traffic Law section 1192.2.

Based upon his arrest and prior conviction, his vehicle was seized pursuant to Article IV Chapter 270 of the Suffolk County Code. In October 2006 he pled guilty to driving while intoxicated and was sentenced to sixty days incarceration.

Section 270-26 of the Suffolk County Code provides that any property which constitutes the proceeds of an offense, the substituted proceeds of an offense or an instrumentality of an offense shall be seized by any peace officer, acting pursuant to his or her special duties, or police officer may upon probable cause to believe that an offense DWI, as defined in this article, has been committed, and may be forfeited as hereinafter provided.

The seizing agency shall send notification of the seizure to all titled owners, registrants on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested, within five business days of the seizure. Such notification shall inform the recipient that there will be a hearing promptly scheduled before a neutral Magistrate to determine whether probable cause existed for the defendant’s warrant less arrest, whether the County is likely to succeed on the merits of the forfeiture action, whether retention is necessary to preserve the vehicle from destruction or sale during the pendency of the forfeiture proceeding, and whether any other measures would better protect the County’s interest during the proceeding.

The Court notes that Section 270-25 defines an offense as “a violation of New York Vehicle and Traffic law 1192, Operating a motor vehicle under the influence of alcohol DUI or drugs, Subdivision 2,3, or 4, or 1192-a. Operating a motor vehicle after having consumed alcohol; under the age of 21; per se, or a violation of New York Navigation Law 49-a, Operation of a vessel while under the influence of alcohol or drugs.”

Defendant was notified to appear for a post seizure hearing. On such date he did not appeared with counsel and after inquest the Neutral Magistrate, determine that Suffolk County was entitled to retain possession of the vehicle.

Pursuant to the foregoing undisputed facts, the plaintiff has cross moved for summary judgment. A party moving or summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue, but once a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action.

Pursuant to the foregoing undisputed facts, the plaintiff has met its prima facie burden of establishing its entitlement to a judgment as a matter of law within the parameters set forth in the Suffolk County Code and the criminal defendant has failed to raise any issues of fact which would warrant the denial of such relief.

However, by way of motion the defendant seeks summary judgment and dismissal of the plaintiff’s complaint averring that the forfeiture sought is excessive compared to the offense committed. In support of the motion, the defendant has proffered an appraisal of the subject vehicle, a 1967 Chevrolet Chevelle, which valued the car at $48,000.00. Said appraisal was based solely upon information given by the defendant and does not consider the damage the vehicle sustained at the time the defendant was arrested.

In a case, the Court of Appeals addressed this issue when the defendant therein contented that the forfeiture of her car as a result of a DWI conviction was excessive. “Inasmuch as a punitive forfeiture of an instrumentality of crime `violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the defendant’s offense, the Court rejected defendant’s claim that the forfeiture of her car constituted an excessive fine.

In determining gross disproportionality, the Court considered such factors as the seriousness of the offense, the severity of the harm caused and of the potential harm had the defendant not been caught, the relative value of the forfeited property and the maximum punishment to which the defendant could have been subject for the crimes charged and the economic circumstances of the defendant

On the facts of this case, the Court concluded that the forfeiture of defendant’s car was not at all disproportionate to the gravity of her offense. The offense with which she was originally charged driving while intoxicated is a very serious crime. Grievous harm to innocent victims could have been caused by defendant’s driving with a blood alcohol level of .15% while speeding and weaving in and out of lanes, had she not been caught and stopped. Given the gravity of the crime of drunk driving DUI, it is difficult to imagine that forfeiture of an automobile for such crime could ever be excessive.”

It is apparent that the facts of the matter at bar are clearly similar to the underlying facts of a case and as such would require the same holding; that is, that the fine of forfeiture is not excessive and a violation of the State and Federal Constitutions as the defendant asserts. Accordingly, his motion for summary judgment and dismissal on such ground is denied.

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