New York State Court of Claims

New York State Court of Claims

THREAT v. THE STATE OF NEW YORK, #2001-015-156, Claim No. 102826, Motion No. M-63006


Synopsis


Money confiscated by State Police in traffic stop and turned over to DEA in conjunction with narcotics trafficking investigation not subject to return upon motion in Court of Claims. Proper remedy for return of personal property is article 78 proceeding in Supreme Court or proceeding in Federal Court.

Case Information

UID:
2001-015-156
Claimant(s):
CHARLES THREAT
Claimant short name:
THREAT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102826
Motion number(s):
M-63006
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Steiner and BlotnikBy: Edward L. Smith, III, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 12, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant's motion pursuant to CPLR 3212 for summary judgment on the issue of liability, ordering the State of New York to return certain of the claimant's property seized incidental to his arrest for drug possession is denied. The defendant opposed claimant's motion and without notice of cross-motion requested summary judgment dismissing the claim for lack of jurisdiction. Upon searching the record the Court determines that defendant is entitled to summary judgment (see, CPLR 3212 (b)). The claim filed on July 31, 2000 alleges that claimant was a passenger in a motor vehicle which was stopped by a New York State Trooper on the New York State Thruway on April 28, 1999. The location of the traffic stop is not further specified. It is alleged that the vehicle was subjected to an unauthorized search during which $99,210.00[1] in U.S. currency belonging to the claimant was confiscated. It is further alleged in the claim and on the motion, upon information and belief, that the property remains in the custody of the New York State Police and that no action has been taken by the State Police or any other law enforcement agency to seize the funds pursuant to statute. Claimant alleges that he has been injured by the confiscation of his property without any attempt to formally seize it and has, therefore, been deprived of due process of law. The claim does not state the specific relief requested but the wherefore clause of claimant's affidavit submitted in support of the motion requests "an immediate Order from this Court returning the aforestated funds, together with such other and further relief as to the Court seems just and proper." A similar request is contained in paragraph "7" of the supporting affidavit of claimant's attorney, Edward L. Smith, III.

Defendant has opposed the motion arguing that there are material questions of fact which preclude the granting of claimant's summary judgment motion including the precise amount of money confiscated[2] and the entity currently in possession and control of the funds in light of an apparent adoption of the funds by federal authorities pursuant to 21 USC § 881 and the initiation of an administrative forfeiture procedure pursuant to 19 USC § § 1602-1619 and Title 21 Code of Federal Regulations (C.F.R.) § § 1316.71-1316.81. Defendant's attorney argues in the alternative that the Court lacks jurisdiction to hear the claim and that summary judgment should be granted to defendant.

The defendant alleges that subsequent to the claimant's arrest on April 28, 1999 for criminal possession of a controlled substance in the seventh degree, a misdemeanor, the State Police learned that he was the subject of a federal drug investigation in the Buffalo, New York area. An application requesting adoption of State or local seizure was made by New York State Police Investigator Jaime L. Pagan on May 3, 1999 (Exhibit B to defendant's memorandum of law) and a letter of no impediment to the requested adoption was issued by Ulster County Assistant District Attorney Mark J. McCormick dated May 5, 1999 (Exhibit C to defendant's memorandum of law). As alleged in the affidavit of Anthony Pasciuto, Director of Seized Assets for the New York State Police, attached to counsel's reply affidavit, the seized currency was deposited in a State Police account at Key Bank on April 30, 1999 and a check # 1578 drawn thereon in the amount of $98,880.00 was sent with an application for transfer to the U.S. Marshal's Service on May 12, 1999.

A declaration of John Hieronymus, Forfeiture Counsel of the Drug Enforcement Administration (DEA), United States Department of Justice, signed under penalty of perjury on February 26, 2001 states on the basis of his office file captioned as DEA Case NO. C7-99-0076 and asset identification number 99-DEA-365108 that $98,880.00 in currency seized from Charles Threat by the New York State Police on April 28, 1999 was adopted by DEA on May 7, 1999. He further declares that a decision was made to accept the case for administrative forfeiture. His declaration then sets forth various attempts to notify claimant and others of the seizure beginning on March 30, 2000 and continuing through December 2000. Specifically, he alleges service of the notice on claimant through his attorney Richard J. Steiner, Esquire, 300 Delaware Avenue., Buffalo, New York on December 18, 2000 with the return receipt being executed on December 22, 2000. Copies of the purported notices, certified mailing envelopes and in the case of claimant and his attorneys the return receipt cards were attached to the declaration as exhibits (see, Exhibits 18-21). Hieronymus further declares that pursuant to 21 C.F.R. § 1316.75 notice of the seizure of $98,880.00 U.S. currency was published in the Wall Street Journal, a newspaper of general circulation in the Northern District of New York (Exhibit 9 to the declaration) on April 24, May 1 and May 8, 2000. As Exhibit 22 attached to the Hieronymus declaration demonstrates, claimant through his attorneys Steiner and Blotnik prepared and served a claim of ownership and a declaration in support of a request to proceed in Forma Pauperis contesting the forfeiture of the seized property in the United States District Court for the Western District of New York.

Paragraph 2 of the federal claim, sworn to on the 8th day of January 2001, alleges "I am the owner and/or have possessor interest in the property mentioned above, which is now in the possession of the United States Government and I am duly authorized to make this claim." Claimant further alleges in paragraph 3 that "[t]he aforementioned property was seized wrongfully and illegally and, therefore, I am entitled to the immediate return thereof."

The receipt of the claim by the Drug Enforcement Administration was acknowledged by transmittal dated January 24, 2001 which, in part, indicates that the claim was referred to the United States Attorney for the Civil Division in the Northern District of New York and advised claimant to direct all inquiries regarding the matter to that office. It does not appear from the record that a determination of the claim by the Federal District Court has yet been made.

The Appellate Division, Third Department recently addressed the issue of the proper legal process to be employed by a person seeking the immediate release of certain personal property seized in connection with his prosecution on criminal charges in Parkinson, Matter of v Leahy, 277 AD2d 810. In that case, following a conviction but while an appeal was pending, petitioner instituted a proceeding in Supreme Court seeking the release of personal property (viz. knives, a variety of firearms, ammunition, a 20 channel scanner and a cell phone) to his trial counsel or, in the alternative for compensation if respondents were no longer in possession of the seized items. Supreme Court granted the petition to the extent that the State Police retained custody over the personal property. The Appellate Division reversed on the grounds that the article 78 proceeding had not been properly commenced but, in doing so, stated (at 811):
Initially, we note that a CPLR article 78 proceeding is a proper vehicle to seek an order compelling the return of items of personal property under the circumstances presented herein (see, Boyle v Kelley, 42 NY2d 88). However, any claim seeking monetary compensation arising out of the seizure of such items of personal property is within the jurisdiction of the Court of Claims only (see, e.g., Matter of Harrison v Carpenter, 201 AD2d 848).
As noted above, the claimant has chosen on this motion to seek an order directing the return of the aforestated funds and even a liberal reading of the instant claim does not reveal an alternative request for monetary compensation arising out of the seizure such as was presented in Parkinson, (supra) or in Harrison v Carpenter, (supra).

The jurisdiction of the Court of Claims is "limited to actions seeking money damages against the State in appropriation, contract or tort" and does not include "strictly equitable relief . . . with the return of the money to follow as a consequence of the equitable relief, if granted" (Psaty v Duryea, 306 NY 413, 416-417; Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670). The relief sought by the claimant is outside the limited jurisdiction conferred upon this Court (see, Bruno, Matter of, v County of Monroe 167 AD2d 872; Coon v New York State Police, 162 AD2d 1018) and, accordingly, the claimant's motion must be denied. Having determined the absence of subject matter jurisdiction, summary judgment dismissing the claim pursuant to CPLR 3212(b) is granted.


June 12, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated January 16, 2000 [sic];
  2. Affidavit of Charles Threat sworn to January 16, 2001 with exhibit;
  3. Affidavit of Edward L. Smith, III, sworn to January 16, 2001;
  4. Affirmation of Kathleen M. Resnick dated March 5, 2001;
  5. Affidavit of Edward A. Kovac sworn to March 1, 2001;
  6. Declaration of John Hieronymus executed February 26, 2001 with exhibits;
  7. Affirmation of Kathleen M. Resnick dated March 28, 2001;
  8. Affidavit of Anthony Pasciuto sworn to March 26, 2001 with exhibit.

[1]The amount of currency confiscated was initially determined to be $99,210.00 and claimant was given a receipt for that amount (Exhibit to claimant's motion). Subsequent machine counting while it remained in the custody of the New York State Police determined the amount to be $98,880.00. Claimant's attorneys in their memorandum of law have stated that the difference is not material and that claimant will consent that the amount seized was $98,880.00.
[2]See footnote 1 (supra).