Application by the defendant pursuant to CPL §710.70(1) for return of certain items of non-contraband personal property taken from his possession upon his arrest due to suppression of evidence resulting in dismissal of the indictment charging him with criminal possession of [*2][*3]marijuana in the first degree (Penal Law §221.30).

The charges stem from the defendant's arrest on March 1, 2006 after a traffic stop by an agent of the United States Border Patrol Service based upon an anonymous tip that the defendant had attempted to evade a border patrol checkpoint on Interstate 87 in the Town of North Hudson, Essex County. At the time of his arrest, law enforcement took possession of a quantity of marijuana located in the bed of the defendant's 1997 GMC Sierra pick-up truck, as well as the truck and its other contents including a cordless drill, jewelry, a stuffed animal, a cell phone, and approximately $300.00 in cash. The indictment was dismissed, after a suppression hearing, by a decision and order dated October 25, 2006. The defendant seeks the return of his truck, toolbox with tools, and cell phone.

The application consists of an affirmation from defendant's attorney, and the Court's order to show cause issued on December 22, 2006. The District Attorney submitted no sworn papers in opposition to the application; and instead filed copies of two letters with the Clerk, one from the District Attorney to the defendant's counsel advising that she notified the United States Attorney for the Northern District of New York "that this case might have to be prosecuted Federally", and the second from an Assistant United States Attorney to the District Attorney requesting that the "Essex County Sheriff, and/or New York State Police" continue to retain certain items of the defendant's property as evidence.

The defendant's motion must be granted. Criminal Procedure Law §710.70(1) vests jurisdiction in this Court to restore property to a defendant when an order suppressing it as evidence has been made and it is not otherwise subject to lawful retention. No legal authority has been cited by either the District Attorney or the United States Attorney to justify the continued retention of the defendant's non-contraband property following dismissal of all state charges under the circumstances here. The People's appeal from the order suppressing evidence and dismissing the indictment does not stay the order from which the appeal is taken (see CPL §460.40[1]). No claim is made, or proof submitted, that a federal or state forfeiture action has been commenced. Similarly, no protective order (21 USCA §853[e]) has been furnished to this Court to justify governmental retention of private property prior to institution of federal criminal charges, and no such order is alleged to have been issued.

It is a fundamental constitutional principle (US Constitution, 14th Amendment; NY Constitution, Article 1, §6) that no governmental body may confiscate a citizen's property without due process of law (see Goldberg v. Kelly, 397 US 254, 90 SCt 1011, 25 LEd2d 287; Dobkin v. Chapman, 21 NY2d 490, 289 NYS2d 161, 236 NE2d 451).

"Once all criminal proceedings involving confiscated property have terminated and a demand for the property has been made, a property clerk must turn over to a claimant any such property that is not per se contraband', that is, objects the possession of which, without more, constitutes a crime' ( United States v. Farrell, DC Cir., 606 F2d 1341, 1344, quoting One 1958 Plymouth Sedan v. Pennsylvania, 380 US 693, 699, 85 SCt 1246, 1250, 14 LEd2d 170), unless further detention can be justified by a new predicate, such as a forfeiture action or further criminal proceedings (Matter of De Bellis v. Property Clerk of City of New York, 79 NY2d 49, 58, 580 NYS2d 157, 588 NE2d 55). If the District Attorney * * * fails to either initiate a timely forfeiture proceeding or [where, as here, he [*4][*5]elects not] to offer a valid reason for continued retention of the property', the government has no right to persist in retaining it, and this is so whether or not a written release of the property has been obtained from the District Attorney ( id., at 59, 580 NYS2d 157, 588 NE2d 55)." Lipscomb v. Property Clerk of City of Newburgh Police Dept., 188 AD2d 993, 994, 592 NYS2d 96, 97; see also McClendon v. Rosetti, 460 F2d 111; Stengel v. Smith, 18 AD2d 458, 240 NYS2d 200).

Retention of the defendant's property is without legal justification. No forfeiture action or federal criminal charges have been commenced, and no other steps have been initiated by the District Attorney or the United States Attorney to secure its presence for further court proceedings. The defendant is thus entitled to its immediate and unconditional return (see Boyle v. Kelley, 53 AD2d 457, 385 NYS2d 791; People v. Hylton, 55 AD2d 684, 685, 390 NYS2d 204, 205; Caggiano v. Frank, 44 AD2d 828, 355 NYS2d 170; Application of Silfa, 5 Misc 2d 375, 159 NYS2d 68).

The Essex County Sheriff, the New York State Police, and any other officer in possession of the property, is each hereby directed to immediately and without any further delay restore to the defendant all non-contraband property taken from him at the time of his arrest, including but not limited to the 1997 GMC Sierra truck, the cordless drill and any other tools, all jewelry and cash, all compact discs, all cell phones and radios, and all stuffed animals.

IT IS SO ORDERED.

Decision and Order signed this 16th day of January, 2007 at Elizabethtown, New York.

ENTER

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Richard B. Meyer

Essex County Judge