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COOPER v. POLICE PROP. CLERK OF NEW YORK

July 7, 1976

CHARLES COOPER, Plaintiff,
v.
POLICE PROPERTY CLERK OF THE CITY OF NEW YORK, and EUGENE GOLD, DISTRICT ATTORNEY OF KINGS COUNTY, Defendants



The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

 PLATT, D. J.

 PRELIMINARY STATEMENT

 Plaintiff brought this civil rights action to recover $1,000 which he alleges is illegally retained by one of the defendants, the Police Property Clerk of the City of New York.

 It appears that upon his arrest on February 27, 1973, for reckless driving, plaintiff offered the arresting officer $1,000 to drop the charges. He was indicted for bribery and reckless driving, and was convicted of the former offense upon a plea of guilty in Kings County Supreme Court on July 24, 1973. That same day he was sentenced to a prison term of not more than four years.

 At the time of the arrest, plaintiff's $1,000 was confiscated. According to his "Affidavit in Support of Civil Rights Complaint," submitted by plaintiff in this action on June 19, 1974, plaintiff requested the return of his money on April 16, 1974. On the same day he requested a release from the defendant District Attorney of Kings County. Since all information before this Court indicates that plaintiff's criminal proceedings ended on the day of his sentence, it follows that these requests were made almost nine months after the end of his criminal proceedings.

 DISCUSSION

 I

 Plaintiff claims that since the defendant Property Clerk has never initiated forfeiture proceedings concerning the $1,000, he is entitled by the terms of the opinion of the Court of Appeals in McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972), and the opinions of Judge Lasker in the same case after remand to a return of the money, and further claims that the failure to return the money is a violation of his civil rights.

 The Court of Appeals declared in McClendon that certain New York City Administrative Code provisions establishing procedures for the return of seized property were, as applied to claimants of money or property other than contraband, unconstitutional under the Fifth and Fourteenth Amendments. The essential shortcoming of the Code provisions, as established in the Court of Appeals decision and developed by Judge Lasker on remand at 369 F. Supp. 1391 (S.D.N.Y. 1974), was that they forced claimants to initiate proceedings, in which they bore the burden of proof, before they could recover property.

 On July 15, 1974, after further consideration, Judge Lasker issued an unreported opinion which mandated the use of certain procedures by the Property Clerk in dealing with seized property other than contraband. Such property must now be inventoried at the time of arrest, and a voucher given to the accused. Upon receipt of a timely demand for return of property accompanied by the voucher and a release from the District Attorney indicating that the property is no longer needed for a criminal proceeding, the Clerk must release the property, unless within ten days he brings a forfeiture proceeding on the grounds that the property was unlawfully obtained, was stolen, was the proceeds of a crime, or was the instrumentality of a crime. A demand is for these purposes "timely" if made by the claimant in writing within ninety days of the termination of the relevant criminal proceedings. If the claimant is imprisoned, the same ninety day period applies but the claimant may have an additional ninety days after acknowledgment of his demand to submit the release from the District Attorney. If no timely demand is made, i.e., when ninety days have passed after the termination of the relevant criminal proceedings, the property may be disposed of by the Property Clerk pursuant to law.

 II

 Plaintiff's suit against the District Attorney for Kings County is based on that defendant's failure to provide a release when plaintiff requested one on July 19, 1974. The District Attorney has since provided a release. Further, as will be indicated below, the failure to provide a release immediately did not itself cause plaintiff to be unable to recover his $1,000 or otherwise injure him ...


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