People v. Spencer

• Citation: 64 Misc.2d 1013,317 N.Y.S.2d 480
• Parties: PEOPLE of the State of New York v. Robert Lee SPENCER.
• Decision Date: 22 December 1970
• Court: New York County Court

Page 480

317 N.Y.S.2d 480

64 Misc.2d 1013

PEOPLE of the State of New York v. Robert Lee SPENCER.

Nassau County Court, Special Term, Part I.

Dec. 22, 1970.

William Cahn, Mineola, for plaintiff.

Martin I. Silberg, Massapequa, for defendant.

DAVID T. GIBBONS, Judge.

By indictment No. 29152, handed up by the Grand Jury of Nassau County on April 14, 1970, the defendant was charged with the commission of the crimes of Burglary Third Degree, and Petty Larceny.

The crimes set forth in this indictment are alleged to have been committed on March 6, 1970.

As a result of the instant indictment, the defendant was arrested as he was entering his home on June 17, 1970. A search of the defendant by the police disclosed that he was carrying upon his person the sum of $300.00 in United States Currency. He told the police that this money represented a part of his winnings from gambling on the numbers on June 7, 1970. When Detective Gorman of the Nassau County Police Department took this money from the defendant, he delivered to the latter, a receipt in writing, upon which was stated the above mentioned source of these funds.

By notice of motion to the District Attorney and the County Attorney, the defendant, by his appointed counsel, moves in this prosecution, 'for an order directing the Commissioner of Police of Nassau County, or his properly authorized agent, and/or employee to turn over the sum of Three Hundred and no/100 ($300.00) Dollars upon the defendant or his attorney.'

Upon the argument of this motion, it was conceded by the County Attorney who opposed the motion, that said sum of $300.00 was in no way connected with the crimes which are the subject matter of this indictment.

This application was opposed upon the ground that the instant summary application is not the proper remedy to recover the said currency. In support of this contention, the County Attorney relied upon the rulings in Hofferman v. Simmons, etc., 290 N.Y. 449, 49 N.E.2d 523; Kamienska v. County of Westchester, 39 Misc.2d 750, 241 N.Y.S.2d 814; and Petz v. Property Clerk, Sup., 149 N.Y.S.2d 179.

After examining into the question of the legal remedies available to an aggrieved person under the circumstances prevailing herein, it is the determination of this court that a summary turnover motion as here attempted, against the Commissioner of Police, is not the proper remedy by which to recover money or property taken by law enforcement authorities in the course of the performance of their duties.

With the advent of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), in which the Fourth Amendment of the United States Constitution was construed to apply to the state courts, this principle of law was recognized by the New York Court of Appeals in People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478 (1961), and as a statutory implementation, Section 813--c of the Code of Criminal Procedure was enacted (Laws 1962, Ch. 954, Section 1) to govern the procedure in the ensuing search and seizure proceedings.

Insofar as relevant to the question presented by this motion, said statute provides:

'If the motion is granted, the property shall be restored Unless otherwise subject to lawful detention, and, in any event it shall not be admissible in evidence in any criminal proceeding against the moving party.' (Emphasis added.)

When it was first tested as an instrument to effect a return of property to a defendant who was successful in suppressing the same from evidence because of an illegal search and seizure, it was found to be somewhat deficient in its ability to produce such result.

In Matter of Pinta v. Delagi, 36 Misc.2d 386, 232 N.Y.S.2d 336 (1962), a defendant, who had obtained an order suppressing money under the statute and against whom the prosecution had failed, applied to the Magistrate for an order directing the police property clerk to return the money to him.

When the Magistrate declined to make such order, the defendant instituted a certiorari proceeding to compel him to do so, under Article 78 of the former C.P.A.

The petition was dismissed upon the ground that such remedy will not lie against the Magistrate because in no event, could such order effect a return of the petitioner's property. Relief must be sought against the police property clerk.

In denying the application, Mr. Justice Gellinoff described the limited legal effect of the order under 813--c, C.C.P., and the residual unresolved questions, as follows:

'Section 813--c provides that, if the motion to suppress is granted, 'the property shall be restored unless otherwise subject to lawful detention' (Code Crim.Proc. § 813--c). The statute does not empower the Magistrate himself to restore the property, nor does it mandate him to direct its restoration by anyone else. It simply declares the obligation of the one possessing the property--in this case the property clerk--to restore it...