Cohen v. A 2019 Nissan

Opinion

Cohen v A 2019 Nissan

2026 NY Slip Op 05158

September 2, 2026

Appellate Division, Second Department

Mccormack

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Dennis Cohen, etc., respondent,

v

A 2019 Nissan, etc., et al., defendants, Hassan Qamar, appellant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 2, 2026

2024-11304, 2024-12666, (Index No. 612390/22)

Mark C. Dillon, J.P.

William G. Ford

Helen Voutsinas

James P. McCormack, JJ.

Scott Lockwood, Deer Park, NY, for appellant.

Christopher J. Clayton, County Attorney, Hauppauge, NY (Leland S. Solon of counsel), for respondent.

APPEALS by the defendant Hassan Qamar, in a civil forfeiture action pursuant to chapter 420, article II of the Code of Suffolk County, from (1) an order of the Supreme Court (James F. Quinn, J.), dated August 26, 2024, and entered in Suffolk County, and (2) a judgment of the same court dated October 1, 2024. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Hassan Qamar and dismissing his first through third, fifth, and sixth counterclaims, and, in effect, declaring that chapter 420 of the Code of Suffolk County is constitutional as applied herein, and did not violate that defendant's rights to due process, and denied that defendant's cross-motion for summary judgment dismissing the complaint insofar as asserted against him and for a judgment declaring, in effect, (1) that the procedures relating to the post-seizure hearings conducted pursuant to chapter 420 of the Code of Suffolk County were unconstitutional, and violated his rights to due process, and (2) that chapter 420 of the Code of Suffolk County was preempted by CPLR article 13-A and the Vehicle and Traffic Law and violated the Municipal Home Rule Law. The judgment, upon the order, inter alia, directed the forfeiture of the subject vehicle.

Mccormack, J. [*1]

OPINION & ORDER

On this appeal, we are called upon to consider the validity of Suffolk County's civil forfeiture statute, codified in chapter 420, article II (hereinafter chapter 420) of the Code of Suffolk County (hereinafter the Code), pursuant to which a vehicle being operated by the defendant Hassan Qamar (hereinafter the defendant) was seized at the time of his arrest for driving while intoxicated. The defendant challenges the validity of chapter 420 of the Code on three bases: (1) that the procedures relating to the post-seizure hearings conducted pursuant thereto violate article VI of the New York State Constitution, and deprived him of due process of law, (2) that the provisions of chapter 420 of the Code are preempted by State law, and (3) that the forfeiture of his vehicle constitutes an excessive fine prohibited by the State and Federal Constitutions. For the reasons that follow, we hold that the defendant's challenges to the procedures involving the post-seizure hearing have been rendered academic, and that there is no merit to his remaining challenges. Accordingly, we affirm the judgment.

I. Chapter 420 of the Code

Pursuant to chapter 420 of the Code, a police officer may seize, among other things, a motor vehicle as an "instrumentality of an offense," upon probable cause to believe that there has [*2]been a violation of Vehicle and Traffic Law (hereinafter VTL) § 1192, operating a motor vehicle while under the influence of alcohol or drugs (Code § 420-6[A]). An "instrumentality of an offense" is defined as any property whose use contributed directly and materially to the commission of, inter alia, "[a] violation of [VTL] § 1192, Operating a motor vehicle under the influence of alcohol or drugs, Subdivision 2, 2-a, 3, 4, or 4-a, or § 1192-a" (Code § 420-5). Within five days of the seizure, notice of a hearing must be sent to the owner and registrant of the seized property informing

"the recipient that there will be a hearing promptly scheduled before a neutral magistrate to determine whether probable cause existed for the defendant's warrantless 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 proceedings, including, but not limited to: (a) Issuance of a restraining order prohibiting the sale, transfer, or loss of the vehicle with imposition(s) of appropriate penalties for violation of said restraining order; (b) Taking of a bond; and/or (c) Use of an interlock device" (id. § 420-6[B][1]).

The County Executive of Suffolk County "shall designate neutral magistrates to conduct [the] hearings" (id. § 420-6[B][3]). At the hearing, the neutral magistrate "shall review the documents supporting the arrest and any other relevant documents and take any testimony to determine whether the seizing agency has sustained its burden of proof" (id. § 420-6[B][2]).

Code § 420-7(A) authorizes the District Attorney, the County Attorney, and/or their designees, to commence a civil action to seize and forfeit the instrumentality of an offense, "if it can be demonstrated that the property was seized in connection with the acts of an individual who has been convicted at least once before of any of the following violations of [VTL] § 1192(2), (2-a), (3), (4), or (4-a)." In such an action, the County must demonstrate,

"by clear and convincing evidence, that the property in question is subject to forfeiture at the time of commission of the offense . . . , which precipitated the seizure or the commencement of an action for the seizure of the property without regard to the final determination of any criminal actions brought against the individual for such offense" (id. § 420-7[J]).

II. Events Giving Rise to the Seizure of the Defendant's Vehicle

On February 20, 2022, at approximately 2:40 a.m., a Suffolk County Police Department (hereinafter the SCPD) police officer observed the defendant operating a Nissan Altima (hereinafter the vehicle) on Pulaski Road in Huntington at a speed of 100 miles per hour in a 35-mile-per-hour zone and passing a steady red traffic control light. According to the felony complaint, the defendant, inter alia, had a strong odor of alcohol on his breath and admitted having "a few beers and a few shots of J[a]m[e]son[ ] W[h]iskey." The defendant purportedly displayed "clues indicative of intoxication upon submitting to standardized field sobriety test" and submitted to a chemical breath test that resulted in a .20% blood alcohol content. The defendant was arrested and charged with aggravated driving while intoxicated per se pursuant to VTL § 1192(2-a)(a) and driving while intoxicated pursuant to VTL § 1192(3). The defendant had previously been convicted of driving while intoxicated pursuant to VTL § 1192(3) on April 1, 2015. The vehicle was seized and impounded by the SCPD pursuant to chapter 420 of the Code.

Pursuant to Code § 420-6(b)(1), the SCPD scheduled a post-seizure hearing before a neutral magistrate to determine, inter alia, whether the County was likely to succeed on the merits of the forfeiture action and whether retention of the vehicle by the County was necessary to preserve it from destruction or sale during the pendency of the forfeiture proceeding. The defendant appeared with counsel on March 18, 2022, for the hearing. However, on that date, the defendant and the plaintiff entered into a stipulation resolving the post-seizure hearing pursuant to which the plaintiff agreed to return the vehicle to the defendant upon certain conditions, including that the defendant post a bond, install an interlock device, and pay the towing and storage fees. The magistrate issued a determination directing the County to return the vehicle to the defendant upon the conditions agreed to in the stipulation. The vehicle was returned to the defendant on or about April 6, 2022.

On October 19, 2022, the defendant pleaded guilty to aggravated driving while intoxicated per se pursuant to VTL § 1192(2-a)(a), with one prior conviction. On January 20, 2023, the defendant was sentenced to a term of five years of probation, he was directed to pay a fine of $1,000, and his license was revoked for 18 months.

III. Background of this Action

On June 30, 2022, the plaintiff commenced this civil forfeiture action pursuant to chapter 420 of the Code, seeking forfeiture of the defendant's vehicle. The defendant joined issue by service of an answer, asserting various affirmative defenses and interposing counterclaims. The defendant alleged, as his first through third, fifth, and sixth counterclaims, that he had been deprived of property without due process based on the seizure and retention of his vehicle, and that the provision of Code § 420-6 that empowered the County Executive to appoint magistrates to hear claims involving seized vehicles violated the separation of powers doctrine under the New York State Constitution, and sought, inter alia, a judgment "declaring that the grant of power to the County Executive to appoint Magistrates . . . to determine issues relating to the continued detention of vehicles seized . . . was an unconstitutional and improper grant of power," and "declaring that the County of Suffolk has improperly designated persons to sit as Judicial Hearing Officers . . . without following the applicable provisions of the Laws of this State."

The plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant and dismissing his first through third, fifth, and sixth counterclaims, and, in effect, declaring that chapter 420 of the Code is constitutional as applied herein, and did not violate the defendant's rights to due process. The plaintiff contended, inter alia, that forfeiture of the vehicle was proper pursuant to chapter 420 of the Code as the instrumentality of a VTL § 1192 offense, since the defendant had previously been convicted of a violation of VTL § 1192. The defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against him, contending that the forfeiture of the vehicle constituted an excessive fine under the State and Federal Constitutions, and for a judgment declaring, in effect, (1) that the procedures relating to the post-seizure hearings conducted pursuant to chapter 420 of the Code were unconstitutional, and violated his rights to due process, and (2) that chapter 420 of the Code was preempted by CPLR article 13-A and the VTL and violated the Municipal Home Rule Law. In an order dated August 26, 2024, the Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied the defendant's cross-motion. By judgment dated October 1, 2024, upon the order, the court, among other things, directed the forfeiture of the vehicle. The defendant appeals.

IV. Dismissal of the Order Appealed From

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

V. The Defendant's Constitutional Challenges to the Post-Seizure Hearing

We first address the defendant's contentions that the creation of a tribunal by the County to adjudicate the post-seizure hearings violates article VI of the New York State Constitution, that the provision of the Code allowing the County Executive to appoint neutral magistrates to conduct the hearings violates the separation of powers doctrine, and that as a result, his due process rights were violated and his vehicle must be returned. The plaintiff contends, inter alia, that the defendant has failed to establish that the provisions of the Code are unconstitutional, and has further failed to establish that his constitutional rights were violated in connection with the seizure of the vehicle, since, among other things, the County did not retain the defendant's vehicle during the pendency of this action.

Here, the defendant's post-seizure hearing was scheduled before a neutral magistrate as required by the Code, and the defendant appeared with counsel on March 18, 2022, for the hearing. However, on that date, the defendant and the plaintiff entered into the stipulation resolving the post-seizure hearing pursuant to which the plaintiff agreed to return the vehicle to the defendant upon certain conditions. Since the defendant entered into the stipulation resolving the post-seizure hearing and agreed to the conditions imposed upon the return of the vehicle, the magistrate did not actually hold a hearing or make any determination with respect to, inter alia, whether probable cause existed for the defendant's warrantless arrest. In addition, the vehicle was returned to the defendant on or about April 6, 2022. As such, any issues the defendant could have raised relating to the post-seizure hearing, and the magistrate's authority with respect thereto, were rendered academic when he entered into the stipulation and the vehicle was returned to him pending the outcome of this action (see Creative Kids Enrichment, LLC v Yorktown Off. Warehouse, LLC, 41 AD3d 416, 417). Accordingly, the defendant is not aggrieved by the application of the provisions of the Code relating to the post-seizure hearing or the manner in which the post-seizure hearing was conducted (see Matter of Najiana J. [Etophia L.], 214 AD3d 871, 872 [a party who consents to an order is not [*3]aggrieved thereby]). Furthermore, since the defendant is not aggrieved by those provisions of the Code, he cannot challenge the constitutionality of those provisions as they are applied to others (see Matter of Daniel C., 99 AD2d 35, 42 ["Constitutional litigants are not ordinarily entitled to raise the unconstitutionality of a statute as it is applied to others"], affd 63 NY2d 927; Matter of Bell v Levitt, 44 AD2d 742, 742 ["courts have consistently held that an individual must be personally aggrieved in order to challenge a statute's constitutional validity"]).

As such, under the circumstances, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment dismissing the defendant's first through third, fifth, and sixth counterclaims, and, in effect, declaring that chapter 420 of the Code is constitutional as applied herein, and did not violate the defendant's rights to due process, and properly denied that branch of the defendant's cross-motion which was for a judgment declaring, in effect, that the procedures relating to the post-seizure hearings conducted pursuant to chapter 420 of the Code were unconstitutional, and violated his rights to due process.

VI. Forfeiture of the Defendant's Vehicle

The defendant contends that the Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against him, and should have dismissed the complaint insofar as asserted against him, since chapter 420 of the Code has been preempted by CPLR article 13-A and the VTL, and because forfeiture of the vehicle constituted an excessive fine under the State and Federal Constitutions. We disagree.

Here, the plaintiff's submissions in support of his motion established, prima facie, that the vehicle was the instrumentality of an offense by demonstrating that the defendant, the owner and operator of the vehicle, was arrested for, and convicted of, operating the vehicle while intoxicated with a .20% blood alcohol content in violation of VTL § 1192(2-a)(a), having previously been convicted of violating VTL § 1192(3) (see Code § 420-7; Malafi v A 1967 Chevrolet, Vin No. 135177G120642, Zachary G. Moisan, 63 AD3d 1112, 1113; Ferrari v County of Suffolk, 845 F3d 46, 49 [2d Cir]). For the reasons that follow, we find that the defendant failed to raise a triable issue of fact in opposition, and likewise failed to establish his prima facie entitlement to a judgment declaring that the County's civil forfeiture statute was preempted by State law.

1. Preemption

"Although a local government is constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, it is prohibited from exercising that power through the adoption of local laws that are inconsistent with the New York State Constitution or any general laws of the state" (People v Diack, 24 NY3d 674, 678-679, citing NY Const, art IX, § 2[c], Municipal Home Rule Law § 10[1][i], [ii][a][12]).

Thus, the law-making power conferred upon local governments, albeit broad, is limited by the preemption doctrine (see People v Torres, 37 NY3d 256, 265; Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372, 377).

"A local law will be preempted where there is a direct conflict with a state statute (conflict preemption) or where the legislature has indicated its intent to occupy the particular field (field preemption)" (Garcia v New York City Dept. of Health & Mental Hygiene, 31 NY3d 601, 617 [internal quotation marks omitted]; see Woodbury Hgts. Estates Water Co., Inc. v Village of Woodbury, 111 AD3d 699, 700). "[A] local law is inconsistent with state law where local laws prohibit what would be permissible under state law, or impose prerequisite additional restrictions on rights under state law, so as to inhibit the operation of the State's general laws" (Garcia v New York City Dept. of Health & Mental Hygiene, 31 NY3d at 617 [alterations and internal quotation marks omitted]).

"[T]he fact that both the state and local laws seek to regulate the same subject matter does not in and of itself give rise to an express conflict, and conflict preemption is generally found only when the State specifically permits the conduct prohibited at the local level or there is some other indication that deviation from state law is prohibited" (id. at 617-618 [alterations, citations, and internal quotation marks omitted]).

"Field preemption prohibits a local government from legislating in a field or area of the law where the legislature has assumed full regulatory responsibility" (People v Torres, 37 NY3d at 265 [alterations and internal quotation marks omitted]).

A. CPLR article 13-A

The defendant contends that the County was expressly preempted by CPLR article 13-A from enacting legislation concerning the forfeiture of vehicles for felony offenses.

CPLR 1311(1) provides that "[a] civil action may be commenced by the appropriate claiming authority against a criminal defendant to recover the property which constitutes . . . an instrumentality of a crime." A "'post-conviction forfeiture crime' means any felony defined in the penal law or any other chapter of the consolidated laws of the state" (id. § 1310[5]). Under the CPLR, a "claiming authority" is defined as follows:

"[T]he district attorney having jurisdiction over the offense or the attorney general for purpose of those crimes for which the attorney general has criminal jurisdiction in a case where the underlying criminal charge has been, is being or is about to be brought by the attorney general, or the appropriate corporation counsel or county attorney, provided that the corporation counsel or county attorney may act as a claiming authority only with the consent of the district attorney or the attorney general, as appropriate" (id. § 1310[11]).

Contrary to the defendant's contention, the fact that CPLR article 13-A expressly provides that post-conviction forfeiture applies to "any felony" (id. § 1310[5]) does not evince the State's intent to preempt any local legislation in this area. CPLR article 13-A provides that a claiming authority "may" commence a civil action against a defendant to recover property that constitutes an instrumentality of a crime for any felony (id. § 1311), and expressly provides that "[t]he remedies provided for in this article are not intended to substitute for or limit or supersede the lawful authority of any public officer or agency or other person to enforce any other right or remedy provided by law" (id. § 1352; see Matter of Property Clerk of N.Y. City Police Dept. v Ferris, 77 NY2d 428, 431). Moreover, while both CPLR article 13-A and chapter 420 of the Code concern the seizure and forfeiture of property used as the instrumentality of a crime, "the fact that the State and local laws touch upon the same area is insufficient to support a determination that the State has preempted the entire field of regulation in [this] area" (Matter of MVM Constr., LLC v Westchester County Solid Waste Commn., 162 AD3d 1036, 1038; see Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 99).

B. The VTL

The defendant contends that chapter 420 of the Code was expressly preempted by VTL § 1604 to the extent that it excludes owners from the free use of their vehicles on the public highways, and was impliedly preempted by the VTL as a whole.

VTL § 1604 provides, in pertinent part, that

"[e]xcept as otherwise provided in this chapter, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation . . . excluding any [motor vehicle] owner . . . from the free use of such public highways . . . or in any other way restricting motor vehicles . . . or their speed upon or use of the public highways."

The defendant contends that the civil penalty of forfeiture cannot be described as anything but a restriction upon "the free use" of the roadways by those in an intoxicated condition, and thus, it is preempted by VTL § 1604. However, contrary to the defendant's contention, chapter 420 of the Code is not inconsistent with VTL § 1604, as it neither prohibits what the State has authorized nor imposes such restrictions on rights granted by the State as to inhibit the exercise of such rights, and thus, is not preempted by VTL § 1604 (see County of Nassau v Kilcommons, 45 AD3d 522; County of Nassau v Pazmino, 40 AD3d 905, 907; Grinberg v Safir, 266 AD2d 43, 44). Furthermore, since there is "no evidence of a comprehensive effort by the State Legislature to regulate the field in question" (Grinberg v Safir, 266 AD2d at 44), there is no merit to the defendant's further contention that chapter 420 of the Code has been impliedly preempted by the VTL.

2. Excessive Fine

"[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'" (County of Nassau v Canavan, 1 NY3d 134, 140, quoting United States v Bajakajian, 524 US 321, 334; see Timbs v Indiana, 586 US 146, 151). The Court of Appeals has provided that the factors to be considered "[i]n determining gross disproportionality [are] 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" (County of Nassau v Canavan, [*4]1 NY3d at 140). The Court of Appeals has further noted that "[g]iven 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" (id.).

Here, the defendant's offense of driving 100 miles per hour in a 35-mile-per-hour zone and passing through a steady red traffic control light with a .20% blood alcohol content was gravely serious, particularly where, as here, this was the defendant's second conviction for driving while intoxicated (see id.). While the defendant, upon his conviction of aggravated driving while intoxicated per se pursuant to VTL § 1192(2-a)(a), a class E felony (see id. § 1193[1][c]), was sentenced to only probation and ordered to pay a $1,000 fine, he faced a maximum sentence of four years imprisonment (see Penal Law § 70.00[2][e]). The vehicle's value, which purportedly was $21,000 at the time of the seizure, was not grossly disproportional to the potential maximum sentence of imprisonment. And with respect to the severity of the harm, the defendant fails to consider that "[g]rievous harm to innocent victims could have been caused by [his] driving . . . had [he] not been caught and stopped" (County of Nassau v Canavan, 1 NY3d at 140).

Moreover, although counsel for the defendant contends that the vehicle should not be subject to forfeiture since the defendant needs it "for work and for the necessities of basic living," we note that the defendant, in his affidavit in support of his cross-motion, did not make this claim. Instead, the defendant indicated that although he was in possession of the vehicle, he was unable to drive it due to his license being suspended, which caused him to lose job opportunities. In addition, the defendant averred that he earned less money at his new job and was hoping to sell the vehicle to recoup some of the losses incurred as a result of his arrest (cf. Property Clerk, N.Y. City Police Dept. v Nurse, 185 AD3d 459, 460). Under the circumstances, the forfeiture of the defendant's vehicle did not constitute an excessive fine (see County of Nassau v Canavan, 1 NY3d at 140; Malafi v A 1967 Chevrolet, Vin No. 135177G120642, Zachary G. Moisan, 63 AD3d at 1112; Property Clerk of N.Y. City Police Dept. v Ber, 49 AD3d 430, 431).

VII. Miscellaneous

The parties' remaining contentions either need not be reached or are without merit.

Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and dismissing his first through third, fifth, and sixth counterclaims, and, in effect, declaring that chapter 420 of the Code is constitutional as applied herein, and did not violate the defendant's rights to due process, and properly denied the defendant's cross-motion for summary judgment dismissing the complaint insofar as asserted against him and for a judgment declaring, in effect, (1) that the procedures relating to the post-seizure hearings conducted pursuant to chapter 420 of the Code were unconstitutional, and violated his rights to due process, and (2) that chapter 420 of the Code was preempted by CPLR article 13-A and the VTL and violated the Municipal Home Rule Law.

In light of the foregoing, the appeal from the order is dismissed, and the judgment is affirmed.

DILLON, J.P., FORD and VOUTSINAS, JJ., concur.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

ENTER:

Darrell M. Joseph

Clerk of the Court