County of Nassau v. Canavan

• Decision Date: 24 November 2003
• Citation: 1 N.Y.3d 134,770 N.Y.S.2d 277,802 N.E.2d 616
• Parties: COUNTY OF NASSAU, Appellant, v. MICHAELE K. CANAVAN, Respondent.
• Court: New York Court of Appeals Court of Appeals

1 N.Y.3d 134

802 N.E.2d 616

770 N.Y.S.2d 277

COUNTY OF NASSAU, Appellant, v. MICHAELE K. CANAVAN, Respondent.

Court of Appeals of the State of New York.

Argued October 21, 2003.

Decided November 24, 2003.

Lorna B. Goodman, County Attorney, Mineola (Dennis J. Saffran and David B. Goldin of counsel), for appellant.

Michael A. Montesano, P.C., Glen Cove (Michael A. Montesano and Theresa Vazquez of counsel), for respondent.

Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO and READ concur.

OPINION OF THE COURT

Chief Judge KAYE.

We are asked to consider the validity of Nassau County's civil forfeiture statute, pursuant to which defendant's car was seized.

On September 6, 2000, defendant was arrested and charged with driving while intoxicated, speeding and failure to signal. The 1995 Saturn automobile she had been driving, valued at $6,500, was seized incident to her arrest, and defendant was given notice of the possibility that the car might be forfeited to the County of Nassau. The car was impounded, where it remained throughout the pendency of defendant's criminal case.

In November 2000, defendant pleaded guilty to the traffic infractions of speeding and driving while impaired by alcohol and was sentenced to a $400 fine, completion of a drinking-driver program and suspension of her license. The following month, after defendant demanded the return of her car, the County commenced a civil forfeiture action under Nassau County Administrative Code § 8-7.0 (g) (3). Supreme Court granted summary judgment to the County and the Appellate Division reversed, holding that the ordinance under which defendant's car had been seized was unconstitutionally vague.

We note at the outset that, when implemented pursuant to a carefully drafted statute, civil forfeiture of automobiles can be an extremely effective tool in the battle against drunk driving. In the 34-month period following Nassau County's institution of a program in which the County routinely sought the forfeiture of automobiles used for intoxicated driving, drunk driving accidents decreased by 26%. Driving while intoxicated poses a grave risk of injury or death to innocent motorists and pedestrians. Nevertheless, because we conclude that the ordinance adopted by Nassau County did not satisfy constitutional requirements, we now affirm the order of the Appellate Division, which reached the same conclusion, albeit for different reasons.

I.

Administrative Code § 8-7.0 (g) (3) provides:

"The County of Nassau may commence a civil action for forfeiture to the County of Nassau of the proceeds of a crime, substituted proceeds of a crime or instrumentality of a crime seized incident to an arrest for a misdemeanor crime or petty offense or upon a conviction for such misdemeanor crime or petty offense against any person having an interest in such property."

The ordinance defines an "instrumentality of a crime" as "any property, other than real property and any buildings, fixtures, appurtenances, and improvements thereon, whose use contributes directly and materially to the commission of any offense" (Administrative Code § 8-7.0 [g] [1] [d]).

The prohibition against vagueness mandates that a criminal statute provide fair notice of the conduct that is proscribed and that it not permit or encourage arbitrary and discriminatory enforcement (see e.g. People v Bright, 71 NY2d 376, 382 [1988]). Of primary importance is "the requirement that a legislature establish minimal guidelines to govern law enforcement" (Kolender v Lawson, 461 US 352, 358 [1983] [citation omitted]). Since the Nassau County ordinance makes clear what conduct may lead to forfeiture of an instrumentality of a crime— the commission of any misdemeanor or petty offense, including any traffic infraction, all of which are particularly defined and all of which provide fair notice of the conduct that is proscribed—the Appellate Division erred when it concluded that the statute was unconstitutionally vague. The ordinance "may be stringent and harsh but it is not vague. . . . The discretion left to enforcing officers is not one of defining the offense. It is merely that of matching the measure of the discipline to the specific case" (Barsky v Board of Regents of Univ., 347 US 442, 448 [1954],affg 305 NY 89 [1953]).

Misdemeanors are defined in the Penal Law, and petty offenses, in the Criminal Procedure Law.¹ Defendant's automobile was seized upon an arrest for an offense clearly defined by statute. We therefore hold that the ordinance is not unconstitutionally vague.

II.

Both the Federal and State Constitutions prohibit the imposition of excessive fines (see US Const 8th Amend; NY Const, art I, § 5). The Excessive Fines Clause thus "limits the government's power to extract payments, whether in cash or in kind, as `punishment for some offense'" (Austin v United States, 509 US 602, 609-610 [1993] [citation omitted]). Forfeitures—payments in kind—are "fines" if they constitute punishment for an offense (see United States v Bajakajian, 524 US 321, 328 [1998]). As the County concedes, the civil forfeiture at issue here serves, at least in part, deterrent and retributive purposes and is thus punitive and subject to the Excessive Fines Clause (see Austin, 509 US at 619-622; Bajakajian, 524 US at 328-329).

Inasmuch as a punitive forfeiture of an instrumentality of a crime "violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense" (Bajakajian, 524 US at 334), we reject defendant's claim that the forfeiture of her car constituted an excessive fine. In determining gross disproportionality, we consider 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 defendant could have been subject for the crimes charged, and the economic circumstances of the defendant.

On the facts of this case, we conclude 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, it is difficult to imagine that forfeiture of an automobile for such a crime could ever be excessive. Surely it was not so here.

We note, however, that since, pursuant to the ordinance, every conceivable offense—however minor—may be subject to forfeiture, limited only by the discretion of county officials in determining whether to invoke it, the potential for disproportionality is great. Moreover, without clear notice to the public that a particular punishment may be imposed for a particular offense, the deterrent effect of the penalty may be lost. In any event, the forfeiture of an automobile for a minor traffic infraction such as driving with a broken taillight or failing to signal would surely be "grossly disproportional to the gravity of a defendant's offense" (Bajakajian, 524 US at 334).

Although the County has, as a matter of policy, decided to focus its enforcement efforts on drunk driving arrests, the ordinance by its terms permits forfeiture for any offense. Moreover, the County advises us that the challenged Code provision is utilized to seek forfeiture in non-drunk driving cases as well. The statute itself is thus devoid of standards as to which petty offenses will result in the implementation of the forfeiture provision, thereby enhancing the opportunity for disproportionate enforcement. Indeed, the County's unilateral decision to invoke the ordinance's nearly limitless application in certain instances and not in others highlights the infirmity inherent in the statute itself. By encompassing many minor and technical violations that could not justify forfeiture, the ordinance, as enacted, risks violation of the Excessive Fines Clause.²

III.

Defendant contends that by not affording her a hearing prior to the initial seizure of her car, the Administrative Code provision deprived her of property without due process of law. While we disagree that due process mandates a hearing prior to the initial seizure, we conclude that a prompt post-seizure hearing is required in all cases.

As a general rule, "individuals must receive notice and an opportunity to be heard before the Government deprives them of property" (United States v James Daniel Good Real Prop., 510 US 43, 48 [1993]). In limited circumstances, however,

"immediate seizure of a property interest, without an opportunity for prior hearing, is constitutionally permissible. Such circumstances are those in which `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 v Pearson Yacht Leasing Co., 416 US 663, 678 [1974], quoting Fuentes v Shevin, 407 US 67, 91 [1972]).

When the forfeited property consists of a vehicle, the property's mobility creates "a special need for very prompt action that justifie[s] the postponement of notice and hearing until after the seizure" (James Daniel Good, 510 US at 52 [citation and internal quotation marks omitted]).

In the context of lawful arrests for driving while intoxicated, immediate seizure by the police of a defendant's car—the instrumentality of the crime of drunk driving—helps to secure important public and governmental interests in ensuring both...