Opinion
No. CV-04-2691
July 25, 2005
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
This civil in rem proceeding was initiated by the State of Connecticut pursuant to General Statutes § 54-33g, seeks the forfeiture of a certain 2000 Chevrolet Silverado pickup truck (V.I.N. 1GCEK19T4YZ2600721) allegedly used in the commission of a crime on or about September 1, 2004 in the town of West Hartford. West Hartford police lawfully seized this pickup pursuant to a search and seizure warrant on November 13, 2004 as part of their investigation into criminal activity by the vehicle's owner, Carlos Cabrera, and others. The criminal activity allegedly involved a scheme in which stolen credit and debit card information was utilized to produce counterfeit cards. These counterfeit cards were then used illegally to purchase merchandise. The state has moved for summary judgment on the grounds that there is no genuine issue as to any material fact supporting forfeiture of the subject res.
Due notice of the seizure and intended forfeiture was directed to Cabrera. At a hearing on the motion on June 28, 2005, Cabrera appeared, represented by counsel, and requested a continuance to July 15, 2005 in order to file affidavits and/or other documentation in opposition to the state's motion. Prior to the continuance date, however, Cabrera, through counsel, indicated he would not be submitting any documentation in opposition to the plaintiff's motion and requested this court decide the motion on the papers, to which the state had no objection.
A letter from Attorney William T. Gerace dated July 13, 2005 is on file.
Summary judgment may be granted under Practice Book § 17-49 of the Practice book if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving part is entitled to judgment as CT Page 11060-cg a matter of law. "A material fact is a fact that will make a difference in the result of the case . . . the party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." Arnone v. Connecticut Light Power Co., 90 Conn.App. 188 193 (2005). Once the moving party has presented evidence in support of a motion for summary judgment, the burden shifts to the opposing party to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Fernandez v. Standard Fire Ins. Co., 44 Conn.App. 220, 222, 688 A.2d 349 (1997); State v. Goggin, 208 Conn. 606, 616, 546 A.2d 250 (1988). To oppose a motion for summary judgment, a party must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. The existence of the genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence and is not rebutted by bald assertions. To oppose a motion for summary judgment successfully, the non-movant must recite specific facts which contradict those stated in the movant's affidavits and documents. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663, 691 A.2d 1107 (1997); 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 567, 636 A.2d 1377 (1994); State v. Goggin, supra, 616. When the non-moving party makes no motion in opposition to summary judgment or recites no specific facts to contradict the facts stated in the motion for summary judgment, the court has to rely on the facts stated in the movant's affidavit as being undisputed. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11-12, 459 A.2d 115 (1983).
In deciding whether there is a material issue of fact, the court considers the evidence in the light most favorable to the non-moving party. The test is whether a party would be entitled to a directed verdict on the same facts. Fernandez v. Standard Fire Ins. Co., supra, 222; Connell v. Colwell, 214 Conn. 242, 247, 571 A.2d 116 (1990).
In the present case, the relevant uncontroverted facts are as follows. On November 13, 2004, pursuant to a search and seizure warrant signed by Judge Bradford Ward of the Superior Court for Geographical Area 14 in Hartford, the West Hartford police department seized a silver, 2000 Chevrolet Silverado pickup truck as part of an investigation into criminal activities of the vehicle's owner, Cabrera. The investigation stemmed from CT Page 11060-ch Cabrera's involvement with others in an illegal scheme in which stolen credit or debit card information was utilized to produce counterfeit credit or debit cards. These counterfeit cards later were used to illegally obtain merchandise from area businesses.
One of Cabrera's co-conspirators was Coryon Rosemond, an employee of Chili's Restaurant in West Hartford. Cabrera used his silver, 2000 Chevrolet Silverado pickup to transport a "ticker" device, a machine that illegally scans credit information, to his co-conspirators, including Rosemond. Rosemond would scan the credit information of customers of the Chili's Restaurant into the ticker device in exchange for money from Cabrera. The stolen information would later be used by Cabrera to produce counterfeit cards.
One of the victims of this scheme at Chili's was a Matthew Keeney. According to his affidavit, submitted by the state in support of its motion as Schedule D, Keeney's credit information was stolen while dining at Chili's and later used to create a counterfeit card. On September 1, 2004, Cabrera illegally used this counterfeit card to purchase four new tires and rims for a "00 Chevy Tr Silver" from the West Hartford Town Fair Tire store. The rims and tires were subsequently identified on November 12, 2004 by Mark Jemison, Regional Zone Manager for Town Fair Tire Centers, Inc., as the exact sets installed on Cabrera's silver 2000 Chevrolet pickup truck at the time of his arrest. (See affidavit of Mark Jemison submitted as plaintiff's Schedule F.)
General Statutes § 54-33g(a) provides for the issuance of a summons to the owner of "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," if, after the property has been seized as a result of a lawful arrest or lawful search, the state claims it is a nuisance and desires to have it destroyed or disposed of.
Several drug offenses are excluded from the statute's forfeiture scheme.
The owner of the property shall be made a party defendant in such case. § 54-33g(b). Section 54-33g(c) provides that seized property will be forfeited, "[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 . . ." The court may render judgment that such property is a nuisance and order it to be destroyed or disposed of to a charitable or CT Page 11060-ci educational institution or to a governmental agency or institution.
The State must prove the property should be declared a nuisance by clear and convincing evidence. Therefore, the evidence must convince the trier that the facts asserted are highly probably true [and] the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Emphasis in original; internal quotations marks omitted.) State v. $7,379.54 United States Currency, 80 Conn.App. 471, 475, 844 A.2d 220 (2003), citing Charlton v. Commission of Correction, 51 Conn.App. 87, 90, 719 A.2d 1205 (1998), cert. denied, 247 Conn. 961, 723 A.2d 815 (1999).
The guilt or innocence of the owner of the vehicle is not in issue in an action in rem for forfeiture of an automobile. The only issue is whether the vehicle was used to violate the law. State v. One 1960 Mercury Station Wagon, 5 Conn. Cir.Ct. 1, 240 A.2d 99 (1968). Regardless, on March 28, 2005, Cabrera pled guilty to participating in and conspiring to participate in racketeering activity pursuant to General Statutes §§ 53-395(b) and (c). He admitted during his plea that he participated in fraudulent credit card transactions, including the transaction on or about September 1, 2004 at the Town Fair Tire where he purchased new rims and tires for the subject pickup. (See Schedule B of the plaintiff's brief, the transcript of Cabrera's plea canvass at pp. 2-5, 11.)
The material facts as set forth in the in rem summons, and the affidavits and other documentary evidence attached to the State's motion, provide great detail as to the overall credit theft scheme of Cabrera and his accomplices. These undisputed material facts clearly and convincingly support forfeiture of the subject vehicle. The owner of a Visa debit card account, Keeney, was the unwitting victim of a credit theft while dining at a local Chili's eatery. Information stolen from Keeney was used in the fabrication of a counterfeit debit card. This counterfeit card was later used at the Town Fair Tire to place an unauthorized and fraudulent charge on Keeny's account to purchase new tires and rims for the subject vehicle. This is the same vehicle Cabrera drove to meet with his co-conspirators to exchange stolen credit information, all in furtherance of the credit theft scheme.
There is a sufficient connection between the pickup truck and CT Page 11060-cj its owner's underlying criminal activity to justify forfeiture. First, Cabrera enhanced the value of this vehicle by means of the theft of merchandise from the Town Fair Tire with the use of a fraudulent debit card. The car was outfitted with the stolen rims and tires and driven in its improved condition.
Second, according to an affidavit submitted by the state from Coryon Rosemond, one of Cabrera's co-conspirators, Cabrera drove the subject vehicle on at least one occasion in August of 2004 to retrieve the "ticker" from Rosemond after it had been used to steal credit information from customers at Chili's restaurant. (See Schedule E. of plaintiff's brief.)
Forfeiture actions instituted pursuant to 54-33g have included vehicles used to further criminal acts, conceal, or transport goods used in or for illegal acts. State v. One 1977 Buick Automobile, 196 Conn. 471, 493 A.2d 874 (1985) (vehicle used to store or conceal gambling records ordered forfeited); State v. One 1981 BMW Automobile, 5 Conn.App. 540, 500 A.2d 961, (1985) (vehicle used to transport illegal narcotics for sale); State v. One Red M.G. Convertible, 6 Conn. Cir.Ct. 282, 271 A.2d 130 (1970) (vehicle used as an instrument in violation of usury laws ordered forfeited); State v. One 1960 Mercury Station Wagon, 5 Conn. Cir.Ct. 1, 240 A.2d 99 (1968) (vehicle used as an instrumentality in an illegal gambling operation ordered forfeited). The purpose of this statute is to "exercise the sovereign power to forfeit property shown to have been involved in an illegal enterprise." State v. Bucchieri, 176 Conn. 339, 348, 407 A.2d 990 (1978). There is no genuine issue as to any material fact that the subject vehicle was used as a means of committing criminal racketeering offenses. The court finds by clear and convincing evidence that the subject 2000 Chevrolet Silverado pickup truck constitutes a nuisance pursuant to § 54-33g(a).
Conclusion
In light of the absence of any issue of material fact presented on the forfeiture issue, the Court grants the state's motion for summary judgment. Judgment may enter in favor of the plaintiff the State of Connecticut. It is hereby ordered, pursuant to General Statutes § 54-33g(c) that the subject vehicle, one 2000 Chevrolet Silverado pickup owned by and/or registered to Carlos Cabrera (VIN 1GCEK19T4YZ2600721) lawfully seized on November 13, 2004, be forfeited to the charitable institution suggested by the CT Page 11060-ck West Hartford police department and the state, the "Geno Auriemma Fore the Kids" charity, a fundraiser for the Connecticut Children's Medical Center in Hartford.
The affidavit of Detective Mark J. Puglielli of the West Hartford police department (Schedule G of plaintiff's brief), indicates that a review of Department of Motor Vehicles records reveals that Cabrera owns the subject vehicle free of any liens of security interests. In addition, Banknorth, in a letter to Puglielli (Schedule J of plaintiff's brief), has waived any rights to the tires and rims fraudulently purchased with Matthew Keeney's Banknorth credit card information if the court orders the pickup truck disposed of to a charity. Therefore, the property may be disposed of to a charitable institution without violating the rights of any third parties.
KELLER, J.