County law also has a penalty for those who sell or transfer ownership of the vehicle while a suit is commenced: its Blue Book value, plus a $1,500 penalty.
The district attorney’s forfeiture program, which also holds a public auction, has seized 840 vehicles since 2004, 600 for DWIs. It’s separate from the more obscure county attorney’s division, where the backlog exists.
Black Hole
Defense attorneys specializing in DWI and forfeiture law working these cases, many of whom requested their names be omitted from this story—since it’s in their business’ best interest the problem not get resolved—tell the Press the current case backlog at the county attorney’s office numbers in the thousands.
The heavy allegation is backed up by current and former members of the county attorney’s office, who also wished their names to remain anonymous since they weren’t authorized to speak to the media and didn’t want to risk losing their jobs.
One current county attorney’s office employee confides that the logjam is about 4,500 cases thick.
Glen Cove-based attorney Michael A. Montesano, who specializes in forfeiture cases and is a former New York City police officer and detective, spoke candidly about the situation. Montesano is a key figure in Nassau DWI law’s colorful and tumultuous history, having successfully challenged the county’s Administrative Code in 2003, which since 1998 under former County Executive Tom Gulotta, had allowed it to seize the cars of those arrested—and not yet convicted—for DWI.
Montesano, sharing what is described as common knowledge among many attorneys handling DWI and forfeiture cases in Nassau, yet mindful of the potential consequences, tells the Press the current backlog at the county attorney’s office consists of “thousands” of cases commenced but never followed through. He knows this, he explains, not only because he handles a bulk of them, but because anyone can do the math.
“All you have to do is pick up the newspaper and look at the stats of how many DWI arrests take place a month,” he says. “I have drawers full of cases, just sitting here, that are three and four years old and nothing’s been done to them.”
There were more than 3,500 DWI arrests last year in the county, according to Nassau Police Department statistics. The vast majority of those were misdemeanors. Only 264 were felonies.
Shein's mother Betsy and father Albert on the steps of Nassau County Court following Persi Esquivel's sentencing on Oct. 29, 2009.
Robert Brunetti, of Mineola- and Northport-based Brunetti Ascione and Tomich PLLC, one of the Island’s busiest DWI-specialized law firms, also acknowledges the stockpile. He attributes it to the incessant flow of new cases and limitations of county staff.
“There is a backlog,” Brunetti explains. “Every day they’re getting more and more cases, so, you only have a certain amount of people certain hours of the day. So there’s definitely a backlog.”
And it’s this backlog that makes defending drunk drivers such a win-win in Nassau, explain still other attorneys specializing in these cases across the Island.
“All a defendant has to do is put in an answer and the case goes into limbo for six years,” confides one attorney, under the agreement their name be withheld for fear the county would actually proceed with his office’s caseload of several hundred if the name was published. “By that time, the car is dead, they got a million miles [on them] and then we simply send the county a letter saying, ‘You want the car? It’s at the junkyard, go get it.’”
Other attorneys tell the Press the county attorney’s office tends to primarily go after expensive cars that the driver owns, as opposed to clunkers or those leased or financed.
Yes, convicted drunk drivers in Nassau are still driving the very cars they were convicted in, despite a law mandating the county separate the offenders from their vehicle and despite estimated millions in taxpayer expenses that fund the ever-growing flow of newly commenced suits.
There’s no more sobering an example of the problem’s reality than Esquivel’s 2006 case. He was arrested on June 14 and charged with a misdemeanor for driving his 2000 Ford Explorer “while in an intoxicated condition,” according to the county attorney’s office’s Oct. 10, 2006 complaint commencing its forfeiture action for the vehicle. He pled guilty.
On Dec. 8, Mineola-based attorney Gregory Madey, Esq. responded by filing an answer to the county’s action and including a hardship defense.
“Nothing happened after that,” explains Madey. “They’re so backlogged with cases. It’s just normal. It’s just normal right now.”
Under Nassau’s DWI law, there is no mandated time limit for a response from the county attorney. Yet oddly, it wasn’t the last Madey, who specializes in criminal law, heard from the office about Esquivel—they contacted him “within the last three months,” he recalls.
“They contacted me and said that ‘he sold the car and we want our money,’” recalls Madey. “And I said I don’t even remember who this guy is. So I pull my file out and I say ‘okay,’ but I assumed that he had a new charge.”
