MORGAN v. PROPERTY CLERK NEW YORK CITY POLICE DEPARTMENT (2000)

The petitioner moves pursuant to CPLR Art. 78 for an order requiring the Property Clerk of the New York City Police Department to return $14,000.00 that was seized from him on September 16, 1998.   In essence this is an in rem or replevin proceeding for the return of the said $14,000.00.

It is the petitioner's contention that he was lawfully standing in front of 21 Bond Street, Staten Island, N.Y., when members of the NYC Police Department, without probable cause, falsely arrested him and seized $14,000.00 in cash from his person.   On September 21, 1998, six days after his arrest, the District Attorney of Richmond County dismissed the case against petitioner and thereafter issued a release indicating the $14,000.00 was no longer needed as evidence.   On or about October 13, 1998, the petitioner made a formal demand for the return of the money but on or about November 6, 1998, was informed by the United States Customs Service that they had seized the Petitioner's $14,000.00 for violating section 1956 of Title 18 of the United States Code.   The Petitioner argues that the initial seizure of the $14,000.00 and/or its transfer to the United States Customs Service was arbitrary, capricious, unreasonable, unsupported by substantial evidence and is contrary to law.

 It is respondent's contention that the petitioner was lawfully arrested and the money was seized based on the police officer's belief that it was the proceeds and/or instrumentality of a narcotics transaction.   He further opposes petitioner's motion arguing this court lacks in rem jurisdiction as a matter of law in that the said $14,000.00 is no longer in his possession but rather in the possession of a federal agency, i.e., United States Customs Service.   Further, petitioner's demand for said $14,000.00 is defective in that he failed to attach required documents as required by McClendon v. Rosetti, 369 F.Supp. 1391 (S.D.N.Y.1974).  (See also, Property Clerk, NYC Police Dept. v. Gully, 144 Misc.2d 833, 545 N.Y.S.2d 887 [Sup.Ct. N.Y.County 1989].)

 Though there appears to be a dearth of New York case law on this issue, there is ample federal law as well as cases of this nature decided in other jurisdictions to support respondent's position.  (See, Cavaliere v. Town of North Beach, 101 Md.App. 319, 646 A.2d 1058 [1994];  City of San Jose v. Superior Court of Santa Clara County, 195 Cal.App.3d 743, 240 Cal.Rptr. 882 [1987].)   The sine qua non of an in rem or replevin action is that the respondent have possession of the property to be returned.   Once federal authorities have possession of the property, the state courts cannot issue an order affecting the specific property seized.  (See, Edney v. City of Montgomery, 960 F.Supp. 270 [M.D. Ala.1997];  United States v. $119,000 in U.S. Currency, 793 F.Supp. 246, 250 [D. Haw. 1992];  and United States v. $530,000, 1987 WL 27357, 1987 U.S.Dist. LEXIS 11912 [N.D. Ill.1987] ).

The case of McClendon v. Rosetti, 369 F.Supp. 1391 (S.D.N.Y. 1974) has held that upon timely demand of the person from whom the property was seized together with a release from the District Attorney, the police property clerk must within twenty-five (25) days either commence a forfeiture proceeding or release same.  (See also, McClendon v. Rosetti, 1993 WL 158525, 1993 U.S.Dist. LEXIS 6274 [S.D.N.Y.] ).

 21 U.S.C. § 881(a)(6) provides that monies exchanged for a controlled substance or traceable to such an exchange are subject to forfeiture to the United States.   There is no requirement that the subject property to be forfeited must arise from federal prosecution. (See, United States v. One 1976 Buick Skylark, 453 F.Supp. 639 [D. Colo.1978].)   Federal district courts have original and exclusive jurisdiction over actions for the enforcement of any forfeiture authorized under an act of Congress.  (See, 28 U.S.C. § 1355;  see also, Edney v. City of Montgomery, supra;  In re 33rd District Court, 138 Mich.App. 390, 360 N.W.2d 196 [1984].)

 Once the proceeds are taken into federal custody, a state court is divested of jurisdiction over the seized property.  (See, 21 U.S.C. § 881;  Edney v. City of Montgomery, supra;  Cavaliere v. Town of North Beach, supra at 330, 646 A.2d 1063.)   In United States v. $530,000, 1987 WL 27357, *2, 1987 U.S.Dist. LEXIS 11912, *4 (N.D.Ill.1987) the court stated that “from the time the proceeds were taken into federal custody, the state court was prevented altogether from acquiring jurisdiction.”  (See also Conrod v. Missouri State Highway Patrol, 810 S.W.2d 614, 617 (Mo.Ct.App.1991);  In re 33rd District Court, supra.)   Further, under 28 U.S.C. § 1355(a) the federal courts have “original jurisdiction, exclusive of the courts of the States,” over forfeiture cases brought under federal statutes.  (See, United States v. $530,000, supra.)

 Parenthetically, this court notes that the disposition of a criminal proceeding is not dispositive of a civil forfeiture action.  (See, Property Clerk v. Conca, 148 A.D.2d 301, 538 N.Y.S.2d 268 [1st Dept.1989];  Property Clerk v. Hurlston, 104 A.D.2d 312, 478 N.Y.S.2d 906 [1st Dept.1984].)   An independent determination of the facts must be made in a civil forfeiture proceeding, in that the burden of proof is merely by a preponderance of the evidence as opposed to beyond a reasonable doubt in a criminal proceeding.  (See, Property Clerk v. Conca, supra.)   However, the burden of proof lies with the governmental agency seeking to have the property forfeited.  (McClendon v. Rosetti, 460 F.2d 111 [2nd Cir.1972].)

Accordingly, the petitioner's motion for an order directing the NYC Property Clerk to release the said $14,000.00 seized by the NYC Police Department is denied for lack of in rem jurisdiction.

PHILIP G. MINARDO, J.