Whitehead v. District Atty. Columbia County, 3

• Decision Date: 13 December 2001
• Docket Number: 3,88332
• Parties: In the Matter of RENEE WHITEHEAD, Respondent, v DISTRICT ATTORNEY OF COLUMBIA COUNTY, Appellant. 88332 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

In the Matter of RENEE WHITEHEAD, Respondent, v DISTRICT ATTORNEY OF COLUMBIA COUNTY, Appellant.

88332

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: October 19, 2001

Decided and Entered: December 13, 2001

Donohue, Sabo, Varley & Armstrong P.C. (Kathleen L. Werther of counsel), Albany, for appellant.

MEMORANDUM AND ORDER

Before: Cardona, P.J., Peters, Spain, Carpinello and Mugglin, JJ.

Carpinello, J.

Appeal from a judgment of the Supreme Court (Connor, J.), entered October 17, 2000 in Greene County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to compel respondent to return a certain motor vehicle seized by the State Police and for respondent to pay towing and storage charges.

Petitioner owns an automobile which was seized in October 1999 in connection with an attempted murder investigation in Columbia County. At issue on appeal is a judgment of Supreme Court (186 Misc.2d 372) which ordered respondent to return this vehicle to petitioner, primarily because the indictment pertaining to that investigation (three counts of assault in the second degree) had been dismissed by County Court. Finding, as we do, that Supreme Court erred in granting the petition, we now reverse.

As of the commencement of this proceeding, the criminal matter in which the vehicle had been seized had not yet terminated, even though the indictment had been dismissed (see, Matter of De Bellis v Property Clerk of City of N.Y., 79 N.Y.2d 49, 56). Indeed, this Court reinstated the indictment on appeal (see, People v Gray, 284 A.D.2d 664). Since that criminal proceeding is extant and petitioner's automobile is potential evidence in the trial of that matter, Supreme Court erred in granting the petition (see, Matter of Marra v Hynes, 221 A.D.2d 539; see generally, Meegan v Tracy, 220 App Div 600; 23 NY Jur 2d, Conversion, and Action for Recovery of Chattel, § 104, at 422-425).

In light of this determination, we need not address respondent's remaining contention in support of reversal.

Cardona, P.J., Peters, Spain and Mugglin, JJ., concur.

ORDERED that the judgment is reversed, on the law, without costs, and petition dismissed.

ENTER: Michael J. Novack Clerk of the Court