DocketNumber: 7542
Citation Numbers: 19 Conn. App. 588
Judges: Connell
Filed Date: 9/5/1989
Status: Precedential
Modified Date: 9/8/2022
This is an appeal from a judgment declaring a 1984 Chevrolet Blazer to be a nuisance and ordering the automobile forfeited to the Wallingford police.
The defendant
The following facts are pertinent to our resolution of this appeal. On August 2, 1988, Wallingford police
The defendant misunderstands the purpose of § 54-33g. This statute provides for a civil action in rem, as opposed to a criminal proceeding, to determine whether property has been used in violation of the law and is thus subject to forfeiture. State v. One 1977 Buick Automobile, 196 Conn. 471, 485, 493 A.2d 874 (1985). The guilt or innocence of the owner is not an issue in
Although the application of the statute may result in hardship in some cases; State v. One 1981 BMW Automobile, supra; “ ‘[wjhen the statute provides for such forfeiture in unequivocal language, making no exceptions in favor of the claims of innocent owners ... it must be assumed that the legislature deemed that such enactment was necessary effectively to curb violation of the law, and we cannot impute to it an intent to make the statute less drastic and effective by adopting a strained construction of the language used, and reading into it an exception which does not there appear.’ ” State v. One 1977 Buick Automobile, supra, quoting Alcorn, State’s Attorney v. Alexandrovicz, 112 Conn. 618, 623, 153 A. 786 (1931). “Any hardship suffered by an innocent owner is incidental to the state’s valid exercise of its sovereign authority to protect its citizens through means reasonably calculated to reduce the violation of the criminal laws.” Id., 486.
The defendant’s reliance on Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974), is unpersuasive. In that case, the United States Supreme Court stated in dicta that it could conceive of two possible situations in which strict application of forfeiture statutes would be inappropriate: (1) when the property subjected to forfeiture had been taken from its owner without his privity or consent; and (2) when an owner proved that he was not involved in nor aware of the wrongful activity, and that he had done all that reasonably could be expected to prevent the illegal use of his property.
The evidence presented at the in rem hearing disclosed that the defendant’s sons made extensive use of the Blazer and had, in fact, installed a tape deck and had kept personal property in the vehicle. Although the defendant testified that his children were required to ask permission before using the vehicle, there was no indication that permission had ever been refused. Thus, the defendant cannot and did not claim that the vehicle had been taken without his consent.
Turning to the second situation mentioned in CaleroToledo, the trial court made a specific finding that the defendant failed to sustain his burden of establishing that he did all he reasonably could have done to avoid having his vehicle put to an illegal use. We are satisfied that this finding is amply supported by the record. Thus, even if we were to apply the Calero-Toledo dicta to the present case, the defendant’s knowledge of his sons’ illegal use of his vehicle is irrelevant and no explicit finding on this issue was necessary or required.
In light of our resolution of the defendant’s first claim of error, we need not address his second claim.
There is no error.
In this opinion the other judges concurred.
This action should properly be entitled State v. One 1984 Chevrolet Blazer because this is an in rem action against the vehicle. For the sake of clarity, we refer to Gaudio as the defendant.
“[General Statutes] Sec. 54-33g. summons to owner on seizure of property, in rem action for adjudication as nuisance, disposition of property, (a) When any property believed to be possessed, controlled, designed or intended for use or which is or has been used or which may be used as a means of committing any criminal offense has been seized as a result of a search incident to an arrest, a warrantless arrest or a search warrant, which the state claims to be a nuisance and desires to have destroyed or disposed of in accordance with the provisions of this section, the judge or court issuing the warrant or before whom the arrested person is to be arraigned shall, within ten days after such seizure, cause to be left with the owner of, and with any person claiming of record a bona fide mortgage, assignment of lease or rent, lien or security interest in, the property so seized, or at his usual place of abode, if he is known, or, if unknown, at the place where the property was seized, a summons notifying the owner and any such other person claiming such interest and all others whom it may concern to appear before such judge or court, at a place and time named in such notice, which shall be not less than six nor more than twelve days after the service thereof, then and there to show cause why such property should not be adjudged a nuisance and ordered to be destroyed or otherwise disposed of as herein provided. Such summons may be signed by a clerk of the court or his assistant and service may be made by a local or state police officer. It shall describe such property with reasonable certainty and state when and where and why the same was seized.
“(b) If the owner of such property or any person claiming any interest in the same appears, he shall be made a party defendant in such case. Any state’s attorney or assistant state’s attorney may appear and prosecute such complaint.
“(c) If the judge or court finds the allegations made in such complaint to be true and that the property has been possessed, controlled or designed for use, or is or has been or is intended to be used, with intent to violate or in violation of any of the criminal laws of this state, he shall render judgment that such property is a nuisance and order the same to be destroyed or disposed of to a charitable or educational institution or to a governmental agency or institution provided, if any such property is subject to a bona fide mortgage, assignment of lease or rent, lien or security interest, such
“(d) If the judge or court finds the allegations not to be true or that the property has not been kept with intent to violate or in violation of the criminal laws of this state or that it is the property of a person not a defendant, he shall order the property returned to the owner forthwith and the party in possession of such property pending such determination shall be responsible and personally liable for such property from the time of seizure and shall immediately comply with such order.
“(e) Failure of the state to proceed against such property in accordance with the provisions of this section shall not prevent the use of such property as evidence in any criminal trial.”
Our courts mentioned this dicta in State v. One 1977 Buick Automobile, 196 Conn. 471, 486, 493 A.2d 874 (1985); State v. Connelly, 194 Conn. 589, 592, 483 A.2d 1085 (1984); State v. One 1981 BMW Automobile, 15 Conn. App. 589, 597, 546 A.2d 879 (1988).
We note that the yacht leasing company in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 689, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974), was completely unaware of the illegal activity for which its property was seized, yet the United States Supreme Court still upheld the forfeiture.