[*1]
People v Sturm
2013 NY Slip Op 51570(U) [41 Misc 3d 1203(A)]
Decided on September 25, 2013
Just Ct of Vil. of Red Hook, Dutchess County
Triebwasser, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 25, 2013
Just Ct of Vil. of Red Hook, Dutchess County


The People of the State of New York, Plaintiff,

against

John Sturm, Defendant.




CR-377-12

Jonah Triebwasser, J.

Procedural History

Defendant was arrested on October 3, 2012 for Criminal Possession of Marijuana in the Fourth Degree in violation of section 221.15 of the Penal Law of the state of New York. At the time of his arrest, he was found to have in his possession 6 and ½ ounces (183.1 grams) of marijuana and $12,077.00 in United States currency. The Red Hook police held these funds in their office safe as possible proceeds of criminal activity.

At his arraignment, defendant informed the Court that, given that the $12,077.00 was inaccessible to him, he could not hire private counsel. He asked that the public defender be appointed. The public defender informed the Court that, given the $12,077.00 in cash that defendant apparently owned, he could not qualify for the services of the public defender. This put defendant in a "Catch-22" situation.[FN1]

To break this logjam, the Court used its inherent powers to appoint the public defender to represent defendant.

After extensive negotiations, defendant pled guilty to Criminal Possession of Marijuana in the Fourth Degree on April 17, 2013 and was placed on Interim Probation.

Defendant has requested the return of the $12,077.00 that was seized by the Red Hook police. A hearing was held on that issue on July 17, 2013. Numerous exhibits were introduced by defendant to convince the Court that the monies in question came from an independent source, namely his business as a scrap metal dealer. Both sides were asked by the Court to submit briefs citing competent legal authority on the issue of the Court's authority to either return the monies to defendant, or to approve of its permanent forfeiture. The briefs were received by the Court, both [*2]sides waived oral argument and the motion was marked fully submitted on August 21, 2013. Defendant was represented by Thomas Angell, Esq., Dutchess County Public Defender. The people were represented by David Kunca, Esq., Senior Assistant District Attorney.

Analysis of the Applicable Law and Decision of the Court


Section 480.05 of the Penal Law states, in relevant part: "When any person is convicted of a felony offense, the following property is subject to forfeiture . . ." (Emphasis added.)

The case at bar involves a misdemeanor. Despite the industry of the assistant district attorney, the People have offered no controlling statute or case-law that would extend this forfeiture section to misdemeanors.

In addition, there was no evidence adduced at the hearing to connect the funds with the marijuana. There was no record of serial numbers of bills that might have been used in a controlled undercover buy. There was no testing of the bills for cannabis residue. There was no evidence presented to the Court that the funds were other than what defendant claimed: monies paid to him for scrap metal. Therefore, the defendant is entitled to the return of the money, less attorney's fees as discussed below.

Attorney's fees


As noted, supra, the public defender was appointed to represent this defendant, even though - for the reasons noted - he did not qualify by the usual means-test for such representation. Justice and equity demand that defendant pay for this representation, rather than the taxpayers. The public defender is therefore directed by the Court to present a statement for his services to defendant with a copy to the Court within 10 days of receipt of this decision. After the Court's review of this document, the Court will make a determination of the amount due to the public defender's office, order that the public defender's office be paid that amount, and release the balance to defendant.

This decision also constitutes the order of this Court.

Dated: September 25, 2013

Red Hook, New York

SO ORDERED.

_________________________________________

Jonah Triebwasser,

Justice, Village of Red Hook

Footnotes


Footnote 1: From the classic novel of the same name by Joseph Heller in which the protagonists find themselves in a situation in which a desired outcome or solution is impossible to attain because of a set of inherently illogical rules or conditions.