In this juvenile delinquency proceeding, the respondent moves to preclude the presentment agency from offering physical evidence, specifically, a jacket that was allegedly stolen by him, at the fact-finding hearing on the ground that the police failed to comply with Penal Law � 450.10 when they returned the jacket to the complaining witness without first notifying the respondent and following the procedures for disposing of stolen property set forth in the statute. For the reasons set forth below, the motion is denied.

The petition alleges that the respondent committed acts which, if committed by an adult, would constitute the crimes of robbery in the third degree (Penal Law �160.05), petit larceny (Penal Law �155.25) and criminal possession of stolen property in the fifth degree (Penal Law §165.40) in that on the morning of December 2, 2010 at approximately 10:00 a.m. near a bus stop near 1027 Southern Boulevard in the Bronx, the respondent asked the complaining witness if he could try on his jacket. The complainant allowed the respondent to try on the jacket, and they both got on the bus. While on the bus, the complaining witness repeatedly asked the respondent to return the jacket, and he refused. The respondent and the complaining witness then exited the bus and entered a store, where the complaining witness again asked for the return of his jacket, to no avail. A physical altercation ensued between the two boys, a police officer intervened and the respondent was arrested and transported to the precinct, along with the jacket he was wearing. The police returned the jacket to the complainant later that day.

The respondent now moves to preclude the introduction of any evidence regarding the [*2]jacket, arguing that the police failed to comply with Penal Law � 450.10 when the jacket was returned to the complainant without first notifying the respondent and otherwise complying with the statute. It is the respondent's position that this alleged failure to comply has prejudiced him in that the jacket "is a common article of clothing that may not necessarily belong to the complaining witness" and that he is prejudiced by his inability to examine the jacket since the jacket is "the basis of the underlying petition."

The presentment agency opposes the motion, arguing that Penal Law � 450.10 does not apply in this case, as the jacket was never in police "custody" within the meaning of the statute. The presentment agency further posits that, even if Penal Law � 450.10 were applicable, preclusion is not warranted since the police did not act in bad faith when they returned the complainant's jacket to him on a December day and the respondent is not prejudiced by any failure to comply with the statute as he was given notice of the recovered jacket on December 7, 2010, well in advance of the fact-finding hearing, providing him with ample time to inspect the property. The presentment agency notes that despite this notice, the respondent did not make a request to inspect the property until December 28, 2010, and that it remains able and willing to make the jacket available for inspection.

In reply, the respondent argues that because he is a juvenile, the police should have known that an attorney would be assigned to him and should have retained the jacket in their possession for examination by counsel, and that their failure to do so constitutes bad faith.

Penal Law � 450.10, which governs the disposal of stolen property, provides that when property alleged to have been stolen is in the "custody "of the police or the prosecutor and a request for its release is made prior to or during the criminal proceeding, it may not be released except as provided in subdivisions two, three and four of that section, which prescribe specific procedures for the notification of the respondent or counsel and the inspection, testing or reproduction of the property. The statute, however, does not apply to all stolen property which comes into the possession of the police, no matter how briefly it remains in their possession. Rather, Penal Law � 450.10 applies to stolen property only "after the police have decided to voucher it" in that the statute "contemplates a removal from the scene of the crime for storage at the Property Clerk's office, or some other assertion of control over the property by the police." People v Chance, 71 AD3d 563, 564 (1st Dept. 2010), lv denied 15 NY3d 748 (2010). It does not apply where, for example, the police briefly possess a wallet found at the scene of a robbery for the purpose of confirming the victim's identity as the owner before returning it to her. See People v Chance, supra. Under such circumstances, the property cannot be considered to be in police "custody." See People v Faucette, 201 AD2d 252 (1st Dept. 1994); Matter of Morgenthau v Marks, 177 AD2d 131 (1st Dept. 1992); see also People v Trotty, 188 AD2d 353 (1st Dept. 1992) lv denied 81 NY2d 848 (1993).

Similarly, the subject property in this case cannot be considered to be in the custody of the police so as to require compliance with Penal Law § 450.10, with the attendant sanctions for non-compliance. The respondent was wearing the allegedly stolen jacket at the time he was arrested and brought to the police station, where it was returned to the complaining witness later that same day. The respondent makes no cogent argument or allegation that the jacket was ever [*3]vouchered by the police, or any way held within the control of the police before it was returned to its owner, so as to constitute "custody" within the meaning of Penal Law § 450.10. While the First Department has cautioned law enforcement personnel that "strict compliance with Penal Law § 450.10 is expected" (People v Johnson, supra at 517), it has also made clear that such compliance is required only where the statute is actually applicable. See People v Faucette, supra; Matter of Morgenthau v Marks, supra; People v Trotty, supra.

Even where the requirements of Penal Law � 450.10 are applicable and have been violated, preclusion or other sanctions are not warranted where, as here, the defendant fails to demonstrate prejudice as a result of the failure to comply or bad faith on the part of the police. See People v Dent, 183 AD2d 723 (2nd Dept. 1992) lv denied 80 NY2d 928 (1992); People v Smith, 242 AD2d 487 (1st Dept. 1997) lv denied 91 NY2d 897 (1998); People v McDowell, 264 AD2d 858 (2nd Dept. 1999). The sole assertion of bad faith proffered by the respondent in his motion papers does not support the imposition of any sanction, since he essentially argues that the police are required to retain and voucher any and all stolen property in any case where counsel may be assigned, i.e. any juvenile delinquency or criminal case. This is an overly broad, and inaccurate, interpretation of the statute. Nor do the particular facts of this case support the imposition of sanctions.

This incident occurred in December, and the item at issue was the complainant's winter jacket which he had been wearing on the street up to the point where the respondent is alleged to have taken possession of it. It cannot be said that the decision of the police officer to return the jacket to the complainant the same day was made in bad faith or in some manner was intended to keep him from inspecting the jacket or prejudice him in any other way. Indeed, the First Department addressed this very issue in People v Smith, supra, where it found that no prejudice inured to a defendant as a result of a police officer's decision to return a coat to a robbery victim on a cold night in February, and in People v Graham, 186 AD2d 47 (1st Dept. 1992) lv denied 80 NY2d 975 (1992), where it rejected the defendant's argument that he was unduly prejudiced when the police released the allegedly stolen coat to the shirtless victim "shortly after the robbery on the very cold January evening." Even where cash proceeds recovered from the defendant were returned to a robbery victim to buy a winter coat, the Second Department found that the reason provided for the return of the property "evidences the People's lack of intent to deprive the defendant of his right to inspect the property." People v Johnson, 114 AD2d 515, 516-517 (2nd Dept. 1985) lv denied 67 NY2d 652 (1986); see also People v Crawford, 135 AD2d 554 (2nd Dept. 1987) lv denied 71 NY2d 894 (1988) [police returned television and iron to store from which they were stolen in good faith]; People v Cruz, 99 AD2d 406 (1st Dept. 1984) [return of stolen medical equipment to physician victim]. The same reasoning applies in this case.

Furthermore, there is no specific allegation by the respondent that the subject jacket possessed any unique quality or characteristic which may be of particular relevance to any element of the offenses charged or may tend to show that it may not belong to the complaining witness as claimed or would assist in the respondent's defense in some other way. Nothing in the petition, Voluntary Disclosure Form or motion papers indicate that the jacket was anything other than a "common article of clothing," as described by the respondent himself. These facts stand in contrast to those of People v Gomez-Kadawid, 66 AD3d 1124 (3rd Dept. 2009), where the prosecutor failed to preserve a pair of prison pants which contained an inmate's name and [*4]identification number. There, the Court found that the pants may have supported a claim that they did not belong to the defendant, who was charged with possessing heroin hidden in an altered flap of the garment and thus, that it should have been preserved for inspection.

Here, the presentment agency has the burden of proving beyond a reasonable doubt, inter alia, that the complainant owned the jacket on the date of the incident and any testimony by him in that regard will be subject to cross-examination by the respondent. Should it come to light during the testimony that the jacket had some unique quality or characteristic that may aid the respondent's defense, he may seek to renew his application at that time. Furthermore, inasmuch as the jacket was not destroyed, it may still be available for inspection, as is represented by the presentment agency, should the respondent so desire. See People v Cruz, supra.

Accordingly, it is

ORDERED that the respondent's motion is denied in its entirety; and it is further,

ORDERED that the parties shall appear for a conference on January 19, 2011, as previously scheduled.

Dated: January 18, 2011

__________________________________________

NANCY BANNON, J.F.C.