The question here is not what we think is the best possible way to accommodate the conflicting interests of the City of New York and Ms. Harris. The question is the constitutionality of a provision of the New York City Administrative Code that, as interpreted by both parties, allows the City to keep the car during the pendency of proceedings to forfeit Mr. Harris’s interest in it. The majority, in substance, upholds the Code provision as applied to Ms. Harris but says it cannot be validly applied to innocent co-owners who make a stronger showing of hardship than Ms. Harris has. Since I do not believe this Code provision is unconstitutional as applied to any innocent co-owners, I concur only in the result.
New York City Administrative Code § 14-140 (b) says that “all property or money suspected of having been used as a means of committing crime or employed in aid or furtherance of crime” shall be given to and kept by the City’s Property Clerk. Section 14-140 (e) (1) says that any such property “that shall remain in the custody of the property clerk for a period of three months without a lawful claimant entitled thereto shall ... be sold at public auction,” and the proceeds paid to the City. A person who “permitted or suffered” the criminal use of the property, or who was a participant or accomplice in it, “shall not be deemed to be the lawful claimant entitled” to the property.
The Administrative Code does not specifically address the rights of a person who is a “lawful claimant entitled” to part ownership of the property, and the application of the provision to that situation is not self-evident. But the City has interpreted it to mean that, in such a case, the property may be held by the Property Clerk and sold, and that after the sale the co-owner should receive her share of the proceeds. This reading of the legislation seems plausible, and Ms. Harris does not dispute it. She argues only that the retention of the property pending sale violates her due process rights. The question presented, then, is whether a state may constitutionally retain and sell an instrumentality of crime that is owned partly by an innocent person and partly by a guilty one.
The answer to that question under the United States Constitution is not in doubt. It follows a fortiori from the Supreme Court’s decision in Bennis v Michigan (516 US 442 [1996]). There, the Court reached the conclusion—shocking at first *251glance—that, when a car is used to commit a crime, a state may sell it and keep all the proceeds, even though the owner of the car is completely innocent. The Court said that “a long and unbroken line of cases holds that an owner’s interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use” (516 US at 446). Certainly, if a state may permanently deprive an innocent owner of her property, it may temporarily deprive an innocent co-owner like Ms. Harris—and that is all that New York City’s Administrative Code provision would do.
I find the majority’s attempt to distinguish Bennis as limited to cases where a trial court has “remedial discretion” to consider hardship (majority op at 244 n 9) completely unconvincing; the holding of Bennis is very clear. The majority might more persuasively argue that we should reject Bennis and adopt a contrary interpretation of the Due Process Clause of the New York Constitution (art I, § 6) (see People v P.J. Video, 68 NY2d 296 [1986]). Indeed, the Court in Bennis itself expressed discomfort with its holding, saying that the innocent owner’s “argument, in the abstract, has considerable appeal” (516 US at 453). Bennis was based on history and precedent; the Court concluded “that the cases authorizing actions of the kind at issue are Too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced’ ” (id. at 453, quoting J. W. Goldsmith, Jr.-Grant Co. v United States, 254 US 505, 511 [1921]).
Like the majority of the Supreme Court in Bennis, I dislike the result, but think it is correct. The rule that the instrumentality of a crime may be forfeited to the state, regardless of the innocence of its owner, has existed in Anglo-American law longer than the Due Process Clause. There are excellent reasons to change it, but it should be changed by legislation, not by novel judicial interpretations of the Constitution. I would adhere to Bennis as a matter of state constitutional law, saying of our State Constitution what Justice Thomas, concurring in Bennis, said of the federal one: “[T]he . . . Constitution does not prohibit everything that is intensely undesirable” (516 US at 454).
But we do not need to go as far as Bennis went to uphold the validity of the legislation in this case. This legislation has removed much of the unfairness from the ancient law of forfeiture. It gives no rights to the City against an innocent sole owner of property; Ms. Harris would face no problem recovering *252her car, had she not chosen to share ownership with a man who turned out to be a drug dealer. And even co-owners suffer only a temporary loss of their property; Ms. Harris will ultimately get her share of the sale proceeds. The injury to an innocent co-owner from being denied the use of the car pending sale is real, but it can be justified where—as will usually be true—it is necessary to protect the City’s interest in the property; surely, few automobiles released to co-owners are likely to be voluntarily returned for a forfeiture sale. Thus, even if I were prepared to depart from Bennis as a matter of state constitutional law, I would find that this City Administrative Code provision, as applied to innocent co-owners of vehicles, is not unconstitutional.
In saying that it is unconstitutional—not as applied to Ms. Harris, but as applied to a hypothetical co-owner who could make a stronger showing of hardship—the majority relies on Krimstock v Kelly (306 F3d 40 [2d Cir 2002]) and County of Nassau v Canavan (1 NY3d 134 [2003]). Neither of these cases, in my view, establishes an innocent co-owner’s substantive right to possession of a car—indeed, Krimstock obviously could not do so, for the Krimstock court was interpreting the federal Due Process Clause and was thus bound by Bennis's holding. Krimstock and Canavan involved procedural, not substantive, rights; their central holding is that the owner of an automobile alleged to be the instrumentality of a crime has a right to a prompt hearing on whether the allegation is likely to be proved true. Neither case decides that, even if the allegation of criminality is true, the car must be returned to a co-owner not connected with the criminal conduct.
I would therefore hold that, where the City proves at a Krimstock hearing, as it did here, the likelihood that a car was used by one of its owners to commit a crime, the City is not constitutionally required to release the car to an innocent co-owner, and I would affirm the Appellate Division’s order on that ground.
Chief Judge Kaye and Judges Graffeo, Pigott and Jones concur with Judge Ciparick; Judge Smith concurs in result in a separate opinion in which Judge Read concurs.
Order affirmed, with costs.