Property Clerk, NY City Police Dept. v Jennings

[*1] Property Clerk, NY City Police Dept. v Jennings 2006 NY Slip Op 50764(U) [11 Misc 3d 1088(A)] Decided on March 29, 2006 Supreme Court, New York County Shulman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 29, 2006
Supreme Court, New York County

Property Clerk, New York City Police Department, Plaintiff,

against

Thomas Jennings, Defendant.



402791/03

Martin Shulman, J.

In this civil forfeiture action, defendant Thomas Jennings ("defendant" or "Jennings") moves to dismiss based on plaintiff Property Clerk, New York City Police Department's ("plaintiff" or "Property Clerk") purported failure to timely commence this action in accordance with the Rules of the City of New York ("RCNY"). Plaintiff opposes this motion.

Background

On June 15, 2002, Jennings was arrested and charged with violating

Penal Law ("PL") §155.30, Grand Larceny in the Fourth Degree; PL §165.45, Criminal Possession of Stolen Property in the Fourth Degree; PL §140.35, Possession of Burglary Tools; and PL §165.25, Jostling. (Arrest Report annexed as Exh. 1 to Leonart Aff.). At the time of his arrest, the police seized $6,932.00 in United States Currency ("money"), subsequently vouchered under Property Clerk Invoice Number K917443 ("Invoice Number K917443"), and assorted jewelry ("jewelry") (collectively "property"), subsequently vouchered under Property Clerk Invoice Number K917442 ("Invoice Number K917442"). (Property Clerk Invoices annexed as Exh. 3 to Leonart Aff.).

Following a jury trial, on April 15, 2003, defendant was convicted of violating PL §155.30, Grand Larceny in the Fourth Degree. Jennings is presently serving a sentence of fifteen years to life in a maximum security prison. (Certificate of Disposition and Inmate Information sheet annexed as Exh. 2 to Leonart Aff.). In this action, plaintiff seeks forfeiture of the seized property.

By letter dated November 8, 2002 (Letter annexed as part of Exh. 4 to Leonart Aff.), defendant requested the return of the seized property and referenced Invoice Numbers K917442 and K917443. It appears that this letter formed the basis for the Property Clerk's Acknowledgment of Demand/Inquiry dated December 13, 2002 (Acknowledgment annexed as part of Exh. 4 to Leonart Aff.), which noted that defendant's demand had been made via mail, contained defendant's address in jail, but inexplicably failed to mention the seized jewelry or the invoice number under which the seized jewelry was vouchered. Jennings also sent letters dated April 17, 2003, July 28, 2003 and October 9, 2003 (Letters annexed as part of Exh. 4 to Leonart Aff.), in which he sought the release of the seized money but made no mention of either the [*2]jewelry or the invoice number under which the jewelry was vouchered.

By letters dated respectively February 11, 2003 and May 20, 2003 (Letters annexed as part of Exh. 4 to Leonart Aff.), the Property Clerk advised defendant that his inquiries of December 13, 2002 and April 17, 2003 were not valid demands and that pursuant to RCNY §12-35, he was required to furnish a district attorney's release ("DA's release") or a supervising district attorney's statement upholding the denial of the release within 270 days of his inquiry. He was further advised that in the event he failed to provide the requested documents in a timely fashion, the Property Clerk could dispose of the property.

Defendant's July 28, 2003 letter apparently included the requested documents.[FN1] Plaintiff commenced this action on August 27, 2003, and defendant interposed an answer on October 23, 2003.

The Instant Motion

Defendant's motion is premised on the plaintiff's purported failure to commence this action within twenty-five days from defendant's request for the return of the seized property which plaintiff acknowledged on December 13, 2002. Jennings argues that the seized property bore no relation to the crimes for which he was arrested and that the property was not seized as arrest evidence. Therefore, he argues, he was not required to provide a DA's release to make a valid demand. He asserts that he made a timely demand for the return of both the seized jewelry and money.

In opposing this motion, the Property Clerk alleges that: 1) defendant failed to make a valid demand for the return of the jewelry in any of his letters or in his purportedly improper demand of December 13, 2002 (Leonart Aff. at ¶ 13); 2) the December 13, 2002 demand for the return of the money held under Invoice Number K917443 was defective because it was not made in "proper form" at the District Attorney's Office and did not include a DA's release;[FN2] 3) defendant's answer failed to raise any affirmative defense as to any jurisdictional defects thereby waiving any claim relating to the timeliness of this action; and 4) plaintiff timely commenced this action.

Timeliness

The time in which the Property Clerk must commence a forfeiture action has been established in accordance with the decisions in McClendon v. Rosetti, 460 F.2d 111 (2nd Cir., 1972), McClendon v. Rosetti, 369 F. Supp. 1391 (S.D.NY, 1974) and the subsequent regulations set forth by Federal District Judge Lasker in McClendon v. Rosetti, 1993 WL 158525 [*3](S.D.NY,1993) and codified in RCNY, Title 38, Chapter 12.

As set forth in the RCNY, a distinction is made between property that is seized as arrest evidence and other seized property, to wit:

[i]f 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 attorney's release, and (ii) in all other cases, as a district

attorney's release is not required, within 25 days after the

date of demand. 38 RCNY §12-36

The RCNY also set forth how seized property may be classified, to wit:

[t]he term "arrest evidence" shall 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 has 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.

(38 RCNY §12-31).

"property other than arrest evidence" refers to non-contraband

property taken from an arrestee merely for safekeeping or taken

from the person or individual prior to, simultaneous with or

subsequent to an arrest which is unrelated to the matter for which

the individual was arrested. Following receipt of a demand for

such property, the property clerk may return the property or

otherwise proceed pursuant to the provisions of §§ 12-36 and 12-37

of this sub-chapter.(38 RCNY §12-32 (e)[3]).

Plaintiff's argument that defendant failed to demand the return of the jewelry is without merit. Defendant's letter dated November 8, 2002, supra, which plaintiff proffered as part of its opposition papers, unequivocally requests the return of both the money and jewelry (see part of Exh. 4 to Leonart Aff.), and clearly references Invoice Numbers K917442 and K917443. In relation to the jewelry, a review of Invoice Number K917442, discloses that said invoice bears the notation "[a]bove property vouchered for safe-keeping on No.74167." Whether or not said notation merely refers to an earlier invoice under which the property was held for safekeeping can only be the subject of conjecture as the Property Clerk's opposition papers failed to offer any explanation for this notation.

The Property Clerk's invoice for the seized funds (Invoice Number K917443), bears the notation, "[a]bove Prop. Recovered by AO from Deft. SILA. Vouchered for Investigation 61#2002-014-009972 Follow by Ass[e]t Forf[ei]ture Unit" and the box marked "Investigatory" is [*4]checked off. Plaintiff has likewise failed to offer any explanation for these notations or any information regarding the above referenced investigation.

Jennings asserts[FN3] that he was arrested based on allegations that he served as a "lookout" for a second individual who stole what turned out to be an empty wallet, that he was wearing the jewelry at the time of its seizure and that both the jewelry and money were unrelated to the crime. ("Affidavit in Support of Response to Summons" annexed as part of Exh. 5 to Leonart Aff.).

Plaintiff commenced this action following a jury trial in which defendant was convicted of violating PL §155.30, Grand Larceny in the Fourth Degree. Presumably, as a result of the trial and the investigation that preceded it, the Property Clerk should have been able to unearth relevant information regarding the provenance of the seized property and relevant details surrounding both Jennings' arrest and the seizure of the property. Inexplicably, the Property Clerk has failed to submit any specific factual information to refute Jennings' claims that his jewelry was seized merely for safekeeping and/or that neither the jewelry nor the money should be classified as arrest evidence. Obviously, how the seized property is classified determines whether or not defendant was required to obtain a DA's release as a statutory predicate to making a valid demand and whether this action was timely commenced.

To successfully prosecute this forfeiture action, the plaintiff must meet its burden in establishing that the seized property was the proceeds of the crime(s) defendant was arrested for and to which he specifically pled guilty. At best, the Property Clerk relies on a paper trail (at least with respect to the money) that is clearly inconclusive[FN4]. Moreover, based upon plaintiff's opposition papers, plaintiff's case clearly shows no promise of getting any better with time. Based upon the foregoing, this forfeiture action warrants dismissal.

Facial Sufficiency of Complaint

In Property Clerk, New York City Police Dept. v. BMW Financial, 293 AD2d 378, 379, 740 N.Y.S.2d 608 (1st Dept., 2002), lv. to app. dism., 98 NY2d 715, 748 N.Y.S.2d 896 (2002), an action seeking forfeiture of a seized vehicle premised on allegations that the individual defendant had used the vehicle while soliciting an undercover police officer posing as a prostitute, the Appellate Division, First Department, sua sponte, found that the Property Clerk's complaint should have been dismissed ". . . premised on the facial insufficiency of the complaint in view of plaintiff's failure to allege the specific acts justifying the forfeiture of the vehicle (see, Administrative Code of City of New York § 14-140[b], [e][1]) . . ."

The relevant portions of the complaint (Complaint annexed as part of Exh. 5 to Leonart Aff.) in this forfeiture action read as follows:

3.On June 15, 2002, defendant JENNINGS was arrested by New York City Police Officer Stephen Maucere and charged with violating Penal Law Sections[:]155.30, Grand Larceny in the Fourth Degree, 165.45, Criminal [*5]Possession of Stolen Property in the Fourth Degree, 140.35, Possession of Burglary Tools, and165.25, Jostling.

***

5.Pursuant to the arrest of defendant JENNINGS and John Doe, jewelry was seized and vouchered under Property Clerk's Invoice Number K917442.

6.Pursuant to the arrest of defendant JENNINGS and John Doe, currency was seized and vouchered under Property Clerk's Invoice Number K917443.

***

9.The subject currency was the instrumentality, proceeds and/or substituted proceeds of a crime or crimes, to wit, violation of Penal Law Section 155.30, Grand Larceny in the Fourth Degree and is thereby subject to forfeiture under New York City Administrative Code Section 14-140 and Chapter 12 of the Rules of the City of New York.

***

11.The subject currency was the instrumentality, proceeds and/or substituted proceeds of a crime or crimes, to wit, violation of Penal Law Section 165.45, Criminal Possession of Stolen Property in the Fourth Degree and is thereby subject to forfeiture . . . .

***

13.The subject currency was the instrumentality, proceeds and/or substituted proceeds of a crime or crimes, to wit, violation of Penal Law Section 140.35, Possession of Burglary Tools and is thereby subject to forfeiture. . . .

***

15.The subject currency was the instrumentality, proceeds and/or substituted proceeds of a crime or crimes, to wit, violation of Penal Law Section 165.25, Jostling and is thereby subject to forfeiture . . .

The complaint also contains similar allegations as to the jewelry being the instrumentality, proceeds and/or substituted proceeds of the enumerated crimes. (See Complaint annexed as part of Exh. 5 to Leonart Aff. at ¶¶ 17, 19, 21, 23.) [*6]

The relevant portions of the complaint in BMW read as follows:

4.On August 2, 2000, defendant Michael Wilson was arrested by Police Officer Deborah Hawkins and charged with violating Penal Law Section 230.03, (Patronizing a Prostitute in the Fourth Degree.)

5.At the time of the arrest of defendant Michael Wilson, he was operating a 1998 Land Rover bearing Vehicle Identification Number, SALJY1245WA767678. The vehicle was seized and vouchered under Property Clerk Invoice Number A966622V.

***

7.The vehicle seized was used by Michael Wilson as the instrumentality of, and/or to aid and further the commission of the crime, to wit, the violation of Penal Law Section 230.03, Patronizing a Prostitute, and is thereby subject to forfeiture under New York City Administrative Code Section 14-140.

A comparison of the above portions of the complaints in this forfeiture action and BMW discloses a strikingly similar, albeit liberal, use of boilerplate language without pleading any specific facts to lawfully justify the forfeiture of the seized property. Based on the Appellate Division, First Department's holding in Property Clerk, New York City Police Dept. v. BMW Financial, supra, this action must also be dismissed based on the facial insufficiency of the complaint.

Accordingly, it is hereby

ORDERED that defendant's motion for dismissal of this action is granted and this forfeiture action is dismissed, in its entirety; and it is further

ORDERED that plaintiff Property Clerk shall return to defendant the $6,932.00 vouchered under Property Clerk Invoice Number K917443 and the assorted jewelry vouchered under Property Clerk Invoice number K917442 forthwith, without the imposition of any costs, fees or disbursements.

This constitutes the decision, order and judgment of this court. Courtesy copies

of this decision, order and judgment have been sent to the parties.

Dated: New York, New York

March 29, 2006

Hon. Martin Shulman, J.S.C. Footnotes

Footnote 1:Although neither party discloses what additional documentation Jennings presumably sent with said letter, the Property Clerk submits that as a result of said submissions Jennings' demand, at least for the money, was deemed effective.

Footnote 2:Although plaintiff alleges that defendant's demand was not in proper form, it fails to describe any purported defects. It is clear that defendant's demand provided plaintiff with the invoice numbers for the relevant vouchers and provided plaintiff with the requisite means to identify the seized property. Any purported defect as to "form", e.g., failure to include an actual copy of the invoices, provides an insufficient basis on which to disqualify defendant's demand. As Jennings was incarcerated at the time of his demand, his failure to appear in person at the Property Clerk's office is not fatal to his demand.

Footnote 3:Although defendant's assertion is contained in a document labeled "affidavit" said document is unsworn.

Footnote 4: As noted, supra, plaintiff has not proffered any other credible explanation or factual support to counter Invoice Number K917442 which facially classifies the jewelry as having been vouchered for safekeeping, and not as arrest evidence.