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RCNY, Title 38, and Chapter 12


According to the Property Clerk’s invoices, on May 15, 2008 and May 19, 2008, Detective YL of the New York City Police Department’s Major Case Squad seized from Petitioner various items of property and classified them as Investigatory under Property Clerk’s invoices P002313, P002358, P002361, P002363, P002364, and P002360, hereinafter the subject property. According to respondents, Petitioner was arrested by Detective YL on July 17, 2008, and charged with violating New York Penal Law Sections 155.40, Attempted Grand Larceny in the Second Degree; 190.80, Identity Theft in the First Degree; 170.10 Forgery in the Second Degree; 155.35 Grand Larceny in the Third Degree; 190.26(1), Criminal Impersonation in the First Degree; 190.26(2), Criminal Impersonation in the Second Degree; and 155.30, Grand Larceny in the Fourth Degree. On March 26, 2009, Petitioner pleaded guilty to two counts of violating New York Penal Law Section 190.80, Identity Theft in the First Degree, and was sentenced on May 28, 2009 to consecutive terms of 4 to 8 years.

On June 9, 2009, Petitioner filed a motion with the Criminal Court in Richmond County seeking the return of the subject property, which was opposed by the Richmond County District Attorney’s Office. By decision and order dated July 13, 2009, The Supreme Court, Richmond County denied Petitioner’ motion, writing that the motion lacks any basis in statutory or common law in both its form and chosen forum, and that Petitioner failed to provide an affidavit with sworn allegations of fact, hereinafter the Criminal Court decision.

On August 4, 2009, an inquiry was made on behalf of Petitioner with the New York City Police Department’s Property Clerk for the subject property, and the Property Clerk issued an acknowledgment of the demand. Upon receiving an inquiry, the Property Clerk contacted Detective YL to determine the status of the subject property. In memorandum dated August 11, 2009, Detective YL changed the classification of the subject property from Investigative to Arrest Evidence.

By letter dated September 10, 2009, a sergeant of the New York City Police Department Legal Bureau, Civil Enforcement Unit, informed Petitioner that the demand made on August 9, 2009 was improper as it was made without a District Attorney’s release. He was also advised that he would need to correct this deficiency within 270 days by providing either a District Attorney’s release or a supervising District Attorney’s statement refusing to grant such a release. On September 17, 2009, Petitioner wrote to the District Attorney for Richmond County seeking a release. By letter dated September 24, 2009, Assistant District Attorney responded that his office would not been issuing a release to him, writing that because of your multiple convictions for fraud related crimes and identity theft, without proof the items are yours and were not obtained through fraudulent means and were not purchased by funds obtained by you through fraudulent means, we will be unable to release these items to you. He did not indicate whether he was a supervising district attorney. On October 7, 2009, Petitioner presented the letter to the Property Clerk.

By letter dated November 2, 2009, respondent advised Petitioner that the demand for the subject property was being denied based on the Decision of the Supreme Court of the State of New York of Richmond County and the District Attorney refusing to grant releases to obtain requested property. Petitioner then sought to appeal the November 2, 2009 denial but received no response from respondents.

On March 8, 2010, Petitioner commenced this proceeding challenging respondent’s refusal to release his property. Petitioner argues that there has been no adjudication that the subject property was related to any crime and that the subject property is not arrest evidence as it was not in his possession at the time of his arrest. Furthermore, Petitioner argues that as he made a timely demand for the subject property, and respondents failed to bring a forfeiture proceeding within 25 days of the demand as required by Administrative Code §14-140, they can no longer bring such a proceeding.

The issue is whether or not petitioner, who is pro se, seeks the return of property seized from petitioner prior to his arrest could be granted.

The time for the Property Clerk to commence a forfeiture action was established in accordance with Mc v. R and subsequent regulations codified in RCNY, Title 38, and Chapter 12. In Mc v. R the Second Circuit held that former section 435-4.0, now 14-140, of the Administrative Code of the City of New York, relating to the duties and powers of the Property Clerk, violated due process as applied to persons from whose possession money or property, other than contraband, has been taken or obtained, though such money or property was not related to any criminal proceeding, or, if it was so related such criminal proceeding had been terminated, or if the money or property had been needed as evidence in the criminal proceeding, it was no longer needed for that purpose. On remand from the Second Circuit the District Court construed the Second Circuit’s decision as requiring that in the circumstances described in that decision, the property clerk must initiate forfeiture or other proceedings to justify the continued detention of property.

Reflecting the concerns in Mc v. R the RCNY distinguishes between property seized as arrest evidence, which may be needed to prosecute a crime, and other property. Specifically, under 38 RCNY § 12-36(a), If a timely demand is made for the return of the property before the forfeiture proceeding is instituted, such proceeding shall be brought no later than (I) in the case of arrest evidence, 25 days after the claimant provides the property clerk with a district attorneys’ release, and (ii) in all other cases, as a district attorneys’ release is not required, within 25 days after the date of the demand.

The 38 RCNY § 12-31 defines the term arrest evidence to mean: property taken from the person or possession of an individual prior to, simultaneous with, or subsequent to an arrest because of its relation to the matter for which the person had been arrested. No property shall be deemed arrest evidence prior to the person’s arrest. No property taken from a person and held by the Police Property Clerk merely for safekeeping shall be deemed arrest evidence.

Under 38 RCNY §12-35(d) where a timely demand for arrest evidence is made without a district attorney’s release, the stolen property clerk may treat the demand as an inquiry and require a claimant within 270 days of the inquiry to provide a district attorney’s release or a supervising attorney’s release. Respondent’s argument that their time to seek forfeiture of the subject property has not began to run centers on Petitioner’ purported failure to comply with this provision.

On the other hand, under 38 RCNY § 12-32(e)(3), property other than arrest evidence is defined as: non-contraband property taken from an arrestee merely for safekeeping or taken from the person or individual prior to or simultaneously with or subsequent to an arrest which is unrelated to the matter for which the individual was arrested. Following receipt of demand for such property, the property clerk may return the property or bring a forfeiture proceeding within 25 days of the demand.

In this case, the classification of the subject property was changed from investigatory to arrest evidence seven days after Petitioner demanded the return of the subject property, and after the termination of criminal proceedings against Petitioner, who was sentenced in May 2009. Notably, respondents provide no explanation for the change in classification of the subject property.

In any event, even assuming that the subject property can be fairly classified as arrest evidence, the respondents’ assertion that it is entitled to retain the property without bringing a forfeiture proceeding is without merit.

Applying the above-stated principles, the Court of Appeals held that the failure of the claimant to obtain a District Attorney’s release for arrest evidence did not justify the Property Clerk’s refusal to return the property, when the criminal proceedings related to the property had been terminated and therefore the government’s presumptive right to detain the property no longer exists. The court explained that it would be inconsistent with the due process underpinnings of the Mc v. R. decision to allow the District Attorney to block the return of the property by simply refusing to issue a release.

In this case, the criminal proceeding has terminated. Moreover, while Petitioner attempted to obtain a District Attorney’s release, the request was denied on the grounds of petitioner’ multiple convictions for fraud related crimes and identity theft and his failure to provide proof the items are yours and were not obtained through fraudulent means and were not purchased by funds obtained by you through fraudulent means. These grounds are insufficient since under Mc v. R. after the criminal proceedings have terminated, the Property Clerk, and not the claimant, has the burden of demonstrating that a claimant does not lawfully own the seized property.

Notably, while refusing to provide a release, the Office of the District Attorney in Richmond County failed to inform Petitioner whether or not the denial was made by a supervising district attorney as required by the applicable regulation, so that Petitioner, if necessary, could obtain review from a supervising assistant district attorney, who shall not be an individual who made the initial determination, which review must be made provided to claimant within ten days of the request for review. The court concludes that under these circumstances, Petitioner’s failure to provide a release from a district attorney, or a denial of a release from a supervising district attorney, does not bar him from obtaining the subject property in the absence of a showing by respondents of a valid reason for retaining it.

Finally, contrary to respondent’s position, the Criminal Court decision denying Petitioner’s motion for the return of the subject property on jurisdictional and procedural grounds does not bar them from returning the property to Petitioner following the termination of the criminal proceedings against him.

Accordingly, the petition is granted to the extent of finding that the Petitioner has effectively demanded the return of the subject property, thus triggering respondent’s obligation under 38 RCNY § 12-36(a) to return the subject property or to commence a forfeiture proceeding within 25 days.

Accordingly, the petition for Article 78 relief is granted to the extent of directing that within 25 days of the date of this decision, order and judgment, respondents bring a forfeiture proceeding or return the subject property to the Petitioner or his authorized representative within such period; and it is further ordered that in any forfeiture proceeding, proof based on personal knowledge must be provided explaining the basis for the original classification of the seized items as Investigatory and the change of classification to Arrest Evidence.

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