Pubdate: Monday, May 10, 1999

Source: Times Union (NY)
Copyright: 1999, Capital Newspapers Division of The Hearst Corporation
Contact:  Box 15000, Albany, NY 12212
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Author: Carol DeMare, Staff Writer

LEGISLATOR PUSHES FOR DRUG-CASE FORFEITURES

Albany -- Gary Domalewicz seeks vote in County Legislature on bill allowing
seizure of cash, vehicles from suspects

A county lawmaker is pushing to get a controversial law through the
legislature today would allow authorities to seize cash and vehicles from
drug suspects arrested on misdemeanor charges.

But some county legislators oppose the bill, claiming it's unconstitutional.

Albany Democrat Gary Domalewicz has lobbied Democratic and Republican
members of the Albany County Legislature in hopes of securing the simple
majority, or 20 votes, needed to pass the new local law.

The measure is similar to ones in Rensselaer and Columbia counties. It
would allow cops to seize up to $1,000 in cash and $5,000 in other
property, such as vehicles, from those arrested on misdemeanor drug charges.

Currently, seizures above the $1,000 and $5,000 thresholds -- including
real estate assets -- are permitted under federal asset forfeiture laws in
all drug cases, including misdemeanors.

Domalewicz's bill did not get support from the legislature's Law Committee
at a meeting late last month. During the last two months, the law came
before the full body twice. Once it was tabled, and the second time it was
sent to committee.

A motion by Domalewicz to move it from the Law Committee to the floor with
a favorable recommendation failed by a vote of 3 to 3. Domalewicz than
suggested sending it to the full 39-member body without recommendation.
That proposal passed unanimously.

Voting against a favorable recommendation were Democrats Paul Collins of
Albany, the committee chairman, Thomas Morelli of Watervliet and Fowler
Riddick of Albany. In favor were Domalewicz and Republicans Paulette
Barlette of Colonie and Paul Laudato of Guilderland.

The Democrats' concern stems from an opinion from County Attorney Michael
C. Lynch. In March, Lynch noted two state attorney general opinions issued
several years ago and concluded that comparable forfeiture laws were not
valid.

"The basic premise (of the opinions) is that local governments are not
authorized to prescribe additional penalties for violations of state or
federal penal statutes,'' Lynch wrote in his memo.

Since the proposed local law "provides for forfeiture upon a misdemeanor
arrest, it does not appear valid,'' Lynch said.

Domalewicz doesn't know if he's got the votes to pass. But he believes the
law is constitutional.

"They believe that the (proposed) law may be unconstitutional, and I
believe that it is, based on . . . other county attorneys supporting it,''
he said, referring to similar laws elsewhere in the state. Schenectady
County legislators are also studying the legality of a similar proposal.

"We can't sit there and decide what's constitutional and what's not
constitutional,'' Domalewicz added. "I don't think anybody in the
legislature is capable of doing that.''

Under the proposal, property seized during an arrest would be held pending
the outcome of the court case. A conviction is required for permanent
forfeiture.

Domalewicz has the support of several law enforcement agencies, including
the district attorney and Council 82, which represents police in Albany,
Watervliet, Cohoes and the sheriff's department.

But Lucille McKnight, a Democrat representing Albany's South End
neighborhood, has called the law hurtful to minorities.

The minority community already feels there are bad race relations and a
police brutality issue in the city, McKnight said. Confiscating people's
property would be one more way of targeting minorities, she said.

Defense attorneys claim the law ignores the presumption of innocence.

Last month, Rensselaer County District Attorney Ken Bruno used the new law
for the first time when police seized the vehicles of five alleged drug
buyers.

The five were among 17 people arrested on misdemeanor drug charges on April
1 in a sting called "Operation April Fool.'' Cops posed as drug dealers and
sold fake crack cocaine to people in the city's North Central neighborhood.

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MAP posted-by: Keith Brilhart