Matter of Khoshneviss v Property Clerk of the New York City Police Dept.

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Matter of Khoshneviss v Property Clerk of the New York City Police Dept. 2010 NY Slip Op 34055(U) February 2, 2010 Supreme Court, Queens County Docket Number: 27654/08 Judge: Orin R. Kitzes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] LUU!! Kt:Ct::IVED PAPERS 10;)4/ ------ fEB g ~ . 20'l MEMORANDUM ~uNn' CLE~~ ~-ENSC~UN SUPREME COURT : QUEENS COUNTY IA PART 17 x INDEX NO. 27654108 rN THE MA TIER OF THE APPLICATION OF; ,, SHAHIN KHOSHNEVISS, · ~OTION SEQ. NO. 1 ·' .! ·against· I .j THE PROPERTY CLERK OF THE NEW YORK CITY POLICE DEPARTMENT MOTION CAL NO. 45 "BY: KITZES, J .1 x DATED: February 2, 2010 I . ! In this. Article 78 proceeding petitioner1Shahin Khoshneviss seeks a judgment directing respondent Property Clerk of the New York City Police Department to return all I property vouchered under Invoice Number N7222666, including a .45 caliber fireann and magazine clip. On July 19, 2007 Shahin Khoshneviss ~as arrested by the Port Authority Police Department at LaGuardia Airport Tenninal B at the ATA Airlines counter, after he·declared I I a firearm for transportation on his flight to California. Mr. Khoshneviss was charged with t . Criminal Possession of a Weapon in the Second Degree, a class C felony (Penal Law § 265.03[ 1][B], and Criminal Possession of a Weapo!l in the Fourth Degree (Penal Law§ 265.01) At the time of his arrest Mr. Khosh~eviss lacked any 9oc~mentation for lawful .possession of said firearm in New York. The subject fireann and magazine clip was vouchered as·arrest evid~nce and remains in the possession of respondent the Property Clerk I ' I Printed. 11/16/20 1 [* 2] I VJ.. I LVVO ~C:l.,,C:IVC:U 1-'At"l=t<S 1r---------------------------------------~------~--~~--------------------...:.ag:e : o .. of the New York City Police Department (Property Clerk). . I . On May 22, 2008, Mr. Khoshneviss pied tiuilty to Disorderly Conduf I, a violation (Pe.iial Law§ 240.20). On August 6, 2008, Mr. Khoshneviss made a fonnal demand upon the Property Clerk ·i I for the return of the subject fireann. The Police·I· Department, in an internal memo dated . Septe~ber 19, 2008, stated that it had ~onduct~.d a license check and determined that Mr. K.hoshneviss did not have a valid New York City license for the weapon and thus did not have pennission or authority to possess the fi~eann in New York City. The Police I . Department there.for~ concluded that the fireann'. is considered co~traband and cannot be l returned to f\1r. Khoshneviss, and recorrimende~ that the Property Clerk dispose· of the . . property pursuant to law. The Police Department sent a similar letter dated September 19, 2008 to Mr. Khoshneviss' counsel stating tha~ the vouchered property is considered I • contraband and cannot be returned, in that it is illegal to posses said property as his client did not have valid pennission or authority to have said fireann in New York City. Mr. Khoshneviss counsel, in a letter addressed to .the Property Clerk, and dated October 20, 2008, stated that in view of his conversation with Executive Officer Robert Fodera of the New York City Police Department Legal Department, he was renewing his request to have the subject fireann returned to 'his client, by any designated courier or transporter, with the fees to be paid by his client. He stated that Mr.Fodera was not opposed to the rt:tum of said fireann, and further stated that Mr. Khoshneviss had legitimately owned and po~sessed the fireann since A~gust 31, 1990.1• He further asserted that it was always his position that such possession was protected by federal statute(l8 USC 926A), and enclosed I Printed 11/16/201 [* 10:>4 /LUUI:! Kt:L:t:IVED PAPERS 3] ______________________ r-------------------~--------------~~~-+-------~~'"""'!:"' ;r .I a copy of the original sale invoice for said fireann . , I Mr. Khoshneviss' counsel states that he had a conversation with Sp·ecialist Hicks from ~ the Property Clerk's office on November 6, 2008; and was advise4 that·the ·Property Clerk ~ would not honor the request for the return of the subject fireann, and that· it would be ' . destroyed as contraband. Petitioner thereafter commenced the within Article 78 proceeding and seeks a judgment directing re~pon~ent to return the voJ hered property to him in California. He 'I alleges in his petition that he resides in San Diego, California and that since 1991 he has been . the legal owner of a .45. caliber Springfield ti fir~arm with a magazine clip, identified as " "SIN NM93684". Petitioner further alleges that said firearm is not contraband and is . i protected under 18 USC§ 926A (Interstate TranJportation ofFireanns). . I· . . Petitioner_'s counsel, in his supporting affitjpation, states that Mr. Khoshveniss legally . I purchased and possessed the subject firearm in California, and was returning to California, via New York, from a camping trip in Vennont J here the possession of the subject fireann 1 was.legal. It is further asserted that Mr. Khoshneviss declared the firearm at the time he ~rriv~d at the airport in California and at the airpoh in New Yo~k. and that it was transported ~ . J unloaded. Counsel a~serts that respondent's position is contrary to that of the United States· Department of Justice and the State of New Jersey with respect to 18 USC 926A. Counsel 11 thus assens that as petitioner was in compliance:with, and protected.by the provisions of 18 USC 926A, he is entitled to the return of the subject firearm. . Counsel asserts that as respondent has fail~d to institute a timely forfeiture action as 1 I __:_:: 3of Page [* 10::1<tuuuo K t:L;t:IVt:U 1-'APERS 4] r-----------------------------------------~----------"-'!'l------------------------~a: of P ge4 required by 38 RCNY 12-36, the subject firearm should be returned· to petitioner in California, at his expense. Finally, it is asserted·that respondent's informal determination I I that the subject firearm is contraband is unjustified and was made in violation of due process. . Respondent Property Clerk, in opposition! asserts that as petitioner does not.have a I license or permit for the ·subject·fireann, its mere: possession in New York Gity is ~nlawful I under Penal Law§ 265.01(1), and, therefore, it is contraband and should not be returned to petitioner. Respo~dent further asserts that since ~e fireann is not subject to civil forfeiture, I • no time period accrued against the respond~nt which would require it to com.mence such a I proceeding. Finally, respondent asserts that l 8 USC§ 926A does not apply to air. travel, and l I that even it were applicable to air travel, petitioner' s possession of the subject fireann was I unlawful, as he failed to submit any evidence or documentation of his whereabouts prior to I . I the time he sought to return to California with the firearm. Petitioner's counsel, in a reply affinnation,istates that whlle the firearm and magazine I clip may have been arrest evidence, upon the disposal of the underlying criminal action such I . status terminated and the property should have either been returned or made the subject of . I I a civil forfeiture proceeding. It is asserted that said property is not contraband, as it was legally purchased by the petitioner in 1990, that petitioner has the legal right to possess it in California, and that petitioner was in full compliance with the requirements of 18 USC§ 926A. It is well settled that upon the tenn~nation ~f criminal proceedings, "seized property, ! ' other than contraband, should be returned to the 'rightful owner" (United States v Francis, Printed 11/161 201 [* 5] r< C:\...C:IVtU t'At-'t:l<:S ,------------------~---------------------f-----------~----------------------~::; Pa ge 1 v..,..rLVVO of 646 F2d 251, 262 [I 980J, cert. denied, 454 US 1082, [1981 ]; United States v David, 131 F3d 55, 59 [ 1997]). Where evidence, even though illegally seized, is contraband, the owner is not entitled to its return (United St~tes_ v Jeffers, 342 US 48, [ i 95 l J; Matter ofSea 1 I Lane Trading Co., inc. v Michael, 94 AD 2d 309;: (1983]; see also People v Qu, 2007 N.Y. Misc. LEXIS 4909, 238 NYLJ 4 (2007)). A distinction has been made between confi~cated property which is per se contraband I and that which is merely "derivative contraband". The former catc;gory includes such patently illegal items as narcotics, gamblin~ app*atus and the paraphernalia used to make bootleg alcohol. In the latter cat.egory are such.l ostensibly innocent items as. cash or an otherwise legal automobile which happened to have been used for illegal purposes. In One 1958 Plymouth Sedan v Pennsylvania (380 1 U~ 693, 699 [1965]), the Supreme Court I announced the following test: If mere possession of the contraband constitutes a crime, then I i repossession of such per se contraband would subject the possessor to additional criminal Penalties. Return of such contraband would. obviously frustrate the express public policy I ' against the possession of such objects (see Sea Liir Trading.Co. v Michael, 94 AD2d 309, i 315-316[1983]). Here, the rules governing the re~um ofprop'erty by the Property Clerk define the term contraband as "property the mere possession of Jhich is prohibited under federal, state or I ' local law. Property shall not be deemed to be contraband merely because it has been held as I evidence or for custodial safe-keeping, or because it may be suspected or believed to be unlawfully obtained, stolen or the proceeds or ins~mentality of a crime" (38 RCNY § 12- Pnnted.11/11 6201 [* 6] 10;:>'11..:w o Kt::l.;t:IV t:U t'APERS Page 6 or r----------------------:--...._;.------~---------------=. 3 I). In New York, possession of a firearm is a criminal act, unless one holds a license to so . I possess, pursuant to Penal Law § 26S.20(a)(3) and Article 400 (see Peon/e v Abdullah ll r • I . 23 Misc 3d 232 (2008]; People v Zabar lynch,_ 2008 NY Misc LEXIS 4587, 240 NYLJ 15 ~ I I (July 1"5, 2008). It i~ undisputed that Mr. Khoshn, viss is ~ot licensed to possess a fireann in New York. Therefore, the subject firearm consti~tes contraband, and its return would be improper (see Sea lar Trading Co. v Michael, 94 AD2d 309, 315-316 [1983]; People v Didonna 124 ~isc 872(.1925)). · I Although New York may have more string~nt fireann standards than those of some i. II other states, Congress has provided relief from those standards under certain conditions. 18 ~ . USC § 926A allows law-abiding citizens to transport firearms that are legal in their state and the state of destination (See I 32 Cong Rec $5358-04· [May 6, 1986]). Fundamental to a claim under this statUte, is the firearm owner's actu~llyengaging in trave I, or acts incidental ' to travel, through the s~ate of arrest, such as stopping for food or gasoline or picking up ,. ~ I • passengers or packages for the trip. Any pause in the journey must be directly incident to it. i Since the statute suspends the operation of a state's \>enal law, it should be strictly construed. Any activity by the owner in the state passed through for a purpose unrelated to . . i accomplishing the passage forfeits the protection qf the federal law. ! Section 926A does not address anything but vehicular travel . Thus, for example, "it does l • not encompass keeping the weapon-locked in a c~e or not--in an airport hotel overnight" I i . (Revell v Port Aut~., 2009 U.S. Dist. LEXIS 26839 [2009); see also Torraco v Port Auth., 539 F Supp 2d 632 [2008]; People v Selyulcov, 2008 NY Slip Op 28104, 2-3 (2008]). To the I • Ii 1: Pnnted. 11116/201 [* 7] IOO'HLUUC Kt:l.;t:IV t: L) PAPERS . ' . . . extent that section 926A may be applicable to air travel, petitioner is required to establish that I he·was only engaged in travel t~rough New York. ;Mr. Khoshneviss, in his verified petition, I. state~ that he lives in California, wh~re the fireann was legally owned, and adopts as true the statements made by his attorney Victor Knapp, in his affinnation. Mr. Knapp states that Mr. I Khoshneviss wa~ returning from a camping trip in:vennont where possession of the firearm is legal, and was arrested at LaGuardia Airport Jn June 19, 2007, when checking in for a .1 return flight to California. However, neither Mr. Khoshneviss nor Mr. Knapp have disclosed. any of Mr. K.hoshneviss' intrastate movements prior.to his arrival at LaGuardia airport on • . I June 19, 2007. No information has been provide~ as to ~tates and means of transportation l . . used by Mr. Khoshneviss between California, V~nnont, and New York. In the absence of . I any evidence regarding Mr. Khoshneviss' alleged travel between these three states, he cannot estabiish t~at he is entitled to the protections affolded by 18. USC § .926A. . Finally, contrary to petition· r's assertions,lthe Property Clerk's failure to institute a e forfeiture proceeding within 25 days of the de~a.nd for the return of the firearm, does not mandate the return of the subject firearm. Respondent has established that the subject fireann is contraband as defined by 38 RCNY § 12p 1, and petitioner has not established that Ii the subject fireann is subject to a forfeiture proceeking, pursuant to 38 RCNY §§ 12-35, 12I 36. Furthermore, Section 14-140(2) of the Administrative Code of the City of N~w York I provides that where the property consists of "fireJnns, cartridges or explosive~" the Police Commissioner may direct the property clerk to destroy ~id property. Therefore, as petitioner was informed of the respondent' s intent to destroy the subject firearm, his due: process I Printed. 11 / 16/201 [* 8] Page 8 of "'-~----~~---~--~--~~--~---~--------~------------------! ••• claims are rejected. In view of the foregoing, petitioner's request for a judgment directing respondent to I return the vouchered property, including the subject firearm and magazine clip is denied, and r the petition is dismissed. Settle judgment. ....., !:= c:::o ~ ct; I VJ b ;J!: cs .. en .,,0 -c:: r-~ ,.,,~ o~ ( /) <"') Cl c:: .~ -: -f -< n r- .m I~ Prin ted. 111161 201 -·-------------------------------------------_,...;--------------------~--~--~~~~=-"'-"-~--'

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