Before the Court is a motion by plantiff /claiming authority for summary judgment pursuant to CPLR §3212 on a post-conviction forfeiture proceeding for a 2002 Pontiac automobile impounded by the police when defendant was arrested for driving while intoxicated on February 6, 2005.

Defendant pleaded guilty to an E felony on October 6, 2005, and was sentenced on March 2, 2006 (Vehicle & Traffic Law §1119.2).

It is uncontested that at the time he was pulled over defendant was speeding at 65 mph in a 35-mph zone. The Intoxilizer breath test resulted in a .16% reading, twice the legal limit. The vehicle was seized (Impound number 7-29-05 and felony asset forfeiture number 71).

Although plaintiff/claiming authority was entitled under CPLR Article 13-A to initiate an asset forfeiture proceeding for an instrumentality of a crime which would have then been stayed pending defendant's felony conviction, plaintiff waited until defendant plead guilty to a felony to commence the action on November 29, 2006, one year and ten months later and well within the five-year statute of limitations (CPLR §1310(4)(5) and CPLR §1311(a)).

In the interim and after his arraignment, defendant waived his right to a preliminary hearing in exchange for the prosecution's agreement to postpone indictment (CPL Article 180). This afforded time to pursue plea negotiations. Meanwhile the vehicle remained impounded.

Defendant cross-moves for partial summary judgment on his counterclaim brought pursuant

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to 42 USC §1983 for a violation of his due process rights. Defendant maintains that he was never provided notice of his right to a prompt post-seizure retention hearing in accordance with Krimstocky v. Kelly, 464 F3d 246 and Nassau v. Canavan, 1 NY3d 134 in the same manner as

Nassau County as a claiming authority provides under its Administrative Code after a misdemeanor DWI arrest.

Several issues must be resolved for before addressing the merits of the two applications.

First, defendant's counterclaim is properly asserted against the plaintiff/claiming authority herein. Nassau County may be given authority to attach property only with the consent of the District Attorney and within the parameters of its Administrative Code in DWI misdemeanor arrests (Nassau v. Canavan, supra; CPLR §1310 (11)).

No such consent was given here. The arrest and ultimate conviction was for a felony based upon defendant's prior conviction for DWI in 2001.

Second, a notice of claim either to the County or the plaintiff/claiming authority is not a condition precedent to civil rights actions brought pursuant to 42 USC §1983 (Mompoint v. City of New York, 299 AD2d 527; Doty v. Rochester City Police Department, 625 F. Supp. 829; see General Municipal Law §50-e).

Civil rights actions for a violation of due process may be brought against any person who under color of state law deprives an individual of his or her constitutional rights. The counterclaim against plaintiff complies with this statute and therefore may not be dismissed for failure to state a cause of action (CPLR §3211(a)(7)).

Third, the issue at bar is not to be confused with the provisional ex parte remedies under CPLR Article 13-A which have been found to be constitutional in light of its swift confirmation requirement along with the necessity for a stay pending an actual felony conviction (Morganthau v. Citisource, 68 NY2d 211).

Nevertheless, the Court of Appeals' discussion regarding the concept of due process within Federal and State constitutional requirements are helpful to the undersigned (Id; see North Georgia Finishing v. Di-Chem, Inc., 419 US 601). The balancing test to be used considers the private interest affected, the risk of erroneous deprivation versus the value, if any, of substitute procedural safeguards and governmental interest, including fiscal and administrative burdens an additional procedural requirement would entail (see Matthews v

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Eldridge, 424 US 319, 335).

As the Court of Appeals noted in Morganthau v. Citisource , the fact that procedures more protective of the defendant's interests can be argued is not dispositive of whether a defendant's due process rights were violated. Further, it is not within a court's province to rewrite the laws the legislative branch has promulgated.

The undersigned's role is limited to discerning if the statutes as drafted satisfy minimum

constitutional requirements of due process. The Court concludes they do.

One must not lose sight of the fact that there are felony criminal proceedings attendant to this unique civil cause of action. The ordinary rules of attachment that are governed by CPLR Article 62 do not apply. That defendant was charged with a felony provided him with the additional procedural safeguards of the Criminal Procedure Law as contemplated by the Matthews v. Eldridge balancing test.

For instance, defendant was entitled to a preliminary hearing on his felony DWI complaint to determine the issue of whether there is sufficient evidence to hold him for the action of a grand jury. It is uncontested that defendant was informed of that right (CPL § §180.10(2), (4) and §180.60).

The preliminary hearing is comparable to a misdemeanor retention hearing under the Nassau County Administrative Code for the prosecution has the burden of proof of demonstrating that there is reasonable cause to believe defendant committed a felony offense (People v. Heredia, 81 Misc 2d 777). The resultant forfeiture of the automobile as an instrumentality of the crime would then be under the purview of CPLR Article 13-A (CPLR §1310(5); Holtzman v. Bailey, 132 Misc 2d 25).

Furthermore, preliminary hearings must be given promptly and although a hearing may be waived, it is a mandatory right defendant is entitled to without the asking and with the assistance of counsel (CPL §§180.60 and 180.10(2), (3)). And, as a practical matter, defendants have actual notice when their vehicles are impounded upon their arrest and, more formally, at arraignment when defendants are provided a copy of their felony complaint containing the forfeiture number of their seized vehicle.

The Criminal Procedure Produce Law also has provisions to compel the release of property unlawfully retained if not otherwise found to be needed as evidence by the prosecution (CPL §710.70; People v. Rizzi, 65 Misc 2d 602). The decision of a defendant not to contest the continued retention of the property held as evidence or to demand its return is not a failure of due process but rather one consideration amongst many made during the course of a [*6][*7]pending criminal action when a plea is under consideration (cf. Property Clerk v. Bauman,

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146 Misc 2d 874).

Defendant does not refute that is exactly what happened here.

Defendant waived his right to a preliminary hearing and his right to a speedy grand jury presentment because it was to his advantage, as well as to the District Attorneys', to explore

plea-negotiations which took place over several months. By his acquiescence defendant is estopped from using this period as a form of laches to prevent plaintiff/claiming authority from pursing civil forfeitures after defendant's conviction.

The Court concludes that to require additional and redundant procedures under the CPL or CPLR for similar post-conviction forfeiture actions would be unduly burdensome since defendant's due process rights affecting his property are adequately protected under the Criminal Procedure Law from the moment of his DWI arrest for a felony.

Furthermore, as noted above, plaintiff did not commence the forfeiture action until after defendant's felony plea and it is uncontested that defendant was served with the summons and complaint in the instant matter in accordance with CPLR §308. Thus, defendant received notice of the action as would any other litigant in the State of New York.

The Court also determines that in cases such as this where the vehicle is seized due to a lawful arrest and the criminal proceeding commenced forthwith, the risk to defendant of erroneous deprivation is slight (Krimstock v. Kelly, supra at 253, FN8).

As to considering the private interest affected under the Matthews v. Eldridge balancing test, even if the undersigned were to agree with the Second Circuit's opinion in the Krimstock v. Kelly decision that a criminal defendant has a strong property interest in an automobile which may trump any governmental interest, that interest is sufficiently protected by the State civil and criminal statutes already in place.

Accordingly, plaintiff's motion for summary judgment is granted and defendant's cross-motion is denied and his counterclaim dismissed.

It is ordered that defendant's title to the subject vehicle, a 2002 Pontiac bearing Vehicle Identification Number 1G************292 with a New York State Registration Number BWD2347 be transferred to the Office of the District Attorney of Nassau County as claiming authority. Plaintiff's application for the alterative relief of a money judgment is denied at this [*8][*9]juncture (Dillon v. Castelli, 132 Misc 2d 1077).

SO ORDERED.

Dated: May 15, 2007John M. Galasso.........................J.S.C.

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