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U.S. v. 288-290 N. ST.

August 16, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALL RIGHT, TITLE AND INTEREST IN REAL PROPERTY AND APPURTENANCES KNOWN AS 288-290 NORTH STREET, MIDDLETOWN, NEW YORK, AND A GROCERY/DELI BUSINESS THEREIN, DEFENDANT-IN-REM. JERRY NELSON, A/K/A JERRY REYES NELSON, CLAIMANT.



The opinion of the court was delivered by: Edelstein, District Judge:

  OPINION AND ORDER

Claimant Jerry Nelson moves to dismiss the Government's complaint seeking the forfeiture of the defendant-in-rem. The Government cross-moves for summary judgment pursuant to 21 U.S.C. § 881(a)(7). For the reasons stated below, claimant's motion to dismiss is denied and the Government's cross-motion for summary judgment is granted.

BACKGROUND

On September 9, 1988, the United States commenced this civil forfeiture action against 288-290 North Street, Middletown, New York ("the property"), consisting of real property, a grocery/deli business, and three apartments. The Clerk of the Court for the Southern District of New York issued an in-rem warrant pursuant to Rule C(3) of the Supplemental Rules, authorizing the United States Marshall to seize the property. A notice of pendency was issued on September 12, 1988 and was recorded at the county clerk's office, Orange County, New York, on September 16, 1988.

Although Rule C(3) permits the Clerk of the Court to issue a seizure warrant, on September 20, 1988, the Government made an ex parte application before this court for a seizure warrant pursuant to information contained in the verified complaint filed on September 9, 1988. This court granted the seizure warrant which authorized the United States Marshals Service to seize the property, to conduct a structural inspection of the property and to evict the tenants occupying the second-floor apartments on the property. On September 22, 1988, the Marshals Service executed the seizure warrant.

Between January, 1988 and September, 1988, the Middletown City Police Department conducted an investigation of narcotics violations at the property. During this period four search warrants were executed and at least thirty arrests were made at the property in connection with narcotics violations. The claimant and record owner of the property Jerry Nelson, a/k/a Jerry Nelson Reyes ("Nelson"), and members of his family were arrested at the property for the sale and possession of narcotics.

The nine month investigation included the following specific incidents:

On January 17, 1988, narcotics officers observed Neftali Reyes, claimant's brother, making several narcotics deals out of a second-floor apartment at the property. Neftali, with Nelson present, was arrested for the criminal possession and sale of a controlled substance and resisting arrest.

On January 19, 1988, and February 11, 1988, claimant was present when search warrants were executed at the property. The two searches resulted in the arrests of three subjects for narcotics violations and the seizure of a sum of money containing several bills from a controlled narcotics purchase, known as "buy money." After his January 19, 1988 arrest at the property, Felix Delmoral gave a sworn statement that Nelson was the "top man" for drugs in the area and that he was selling drugs for Nelson.

After the arrest of Cynthia Riker on April 1, 1988, for the sale and possession of "crack," a cocaine derivative, an officer told Nelson that he should be more careful about who he allowed on his property, since Riker was selling narcotics. Also on April 1, 1988, Nelson's brother, Neftali, was again arrested at the property for criminal possession and sale of a controlled substance. After being observed making sales of narcotics by narcotics officers, Neftali went inside the store located on the first floor of the property and threw a bag containing 177 vials of crack under the counter. Nelson was in the store at the time of this incident.

On May 27, 1988, Roberto Caldron was arrested at the property for two counts of criminal possession of a controlled substance and for selling narcotics. Caldron lived in one of the apartments at the time of his arrest.

On June 13, 1988, Nelson was present when Reinaldo Riveria was arrested for possession of crack. Once again, an officer informed Nelson that his property was being used for the sale of narcotics.

On July 5, 1988, Nelson was arrested for selling cocaine to a confidential informant at the property. Cocaine, one thousand four hundred dollars ($1,400) and an unregistered pistol were seized. A number of ten dollar ($10) bills recovered were marked as "buy money."

On August 22, 1988, and August 29, 1988, seven more individuals were observed by undercover police officers making sales of narcotics from the property. All seven were arrested on the property.

Between September 9, 1988 and September 20, 1988, four more incidents of narcotics deals were observed by undercover officers and six subjects were arrested at the property for the sale and possession of narcotics.

On September 22, 1988, pursuant to the seizure warrant granted by this court on September 20, 1988, the property was seized. During the seizure, Augustine Romero was arrested for possession of narcotics after he ...


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