* Editor's note: In McClendon v. Rossetti, 460 F.2d 111 (2d Cir. 1972), the court held that certain procedures of the police property clerk, which required persons from whom property was taken in the course of an arrest to commence a court proceeding to obtain the return of such property, combined with the provisions of section 14-140(f) of the Administrative Code, which required such persons to prove lawful possession of the property, denied such persons due process of law under the Fifth and Fourteenth amendments to the U.S. Constitution. Subsequent to the McClendon decision, the Police Department and the District Attorneys adopted procedures for claiming property taken or obtained by the police in the course of an arrest which were approved by the McClendon court. These procedures are codified as subchapter B of chapter 12 of title 38 of the Rules of the City of New York.
a. Appointment, duties and security.
1. The commissioner shall employ a property clerk who shall take charge of all property and money hereinafter described.
2. All such property and money shall be described and registered by the property clerk in a record kept for that purpose, which shall contain a description of such property or money, the name and address of the owner or claimant if ascertained, the date and place where obtained or found, the name and address of the person from whom taken or obtained, with the general circumstances, the name of the officer by whom recovered or obtained, the date when received by the property clerk, the names and addresses of all claimants thereto, and any final disposition of such property or money.
3. The property clerk shall have power to administer oaths to and take affidavits and depositions of any person or claimant in all matters pertaining to the powers and duties of the property clerk, and property and money in his or her custody and claims thereto.
4. The commissioner may require and take security for the faithful performance of the duties of the property clerk.
b. Custody of property and money. All property or money taken from the person or possession of a prisoner, all property or money suspected of having been unlawfully obtained or stolen or embezzled or of being the proceeds of crime or derived through crime or derived through the conversion of unlawfully acquired property or money or derived through the use or sale of property prohibited by law from being held, used or sold, all property or money suspected of having been used as a means of committing crime or employed in aid or furtherance of crime or held, used or sold in violation of law, all money or property suspected of being the proceeds of or derived through bookmaking, policy, common gambling, keeping a gambling place or device, or any other form of illegal gambling activity and all property or money employed in or in connection with or in furtherance of any such gambling activity, all property or money taken by the police as evidence in a criminal investigation or proceeding, all property or money taken from or surrendered by a pawnbroker on suspicion of being the proceeds of crime or of having been unlawfully obtained, held or used by the person who deposited the same with the pawnbroker, all property or money which is lost or abandoned, all property or money left uncared for upon a public street, public building or public place, all property or money taken from the possession of a person appearing to be insane, intoxicated or otherwise incapable of taking care of himself or herself, that shall come into the custody of any member of the police force or criminal court, and all property or money of incarcerated individuals of any city hospital, prison or institution except the property found on deceased persons that shall remain unclaimed in its custody for a period of one month, shall be given, as soon as practicable, into the custody of and kept by the property clerk except that vehicles suspected of being stolen or abandoned and evidence vehicles as defined in subdivision b of section 20-495 of the code may be taken into custody in the manner provided for in subdivision b of section 20-519 of the code.
c. Return of property and money to person accused. Whenever property or money taken from any person arrested shall be alleged to have been feloniously obtained, or to be the proceeds of crime, and brought, with all ascertained claimants thereof, and the person arrested, before a judge of the criminal court for adjudication, and the judge of the criminal court shall be satisfied from the evidence that the person arrested is innocent of the offense alleged, and that the property rightfully belongs to him or her, then such judge thereupon, in writing, may order such property or money to be returned, and the property clerk, if he or she have it, to deliver such property or money to the accused person, and not to any attorney, agent or clerk of such accused person.
d. Disputed ownership. If any claim to the ownership of such property or money shall be made on oath before the judge, by or in behalf of any other persons than the person arrested, and such accused person shall be held for trial or examination, such property or money shall remain in the custody of the property clerk until the discharge or conviction of the person accused and until lawfully disposed of.
e. Disposition of property and money.
1. Abandoned vehicles subject to the provisions of section twelve hundred twenty-four of the vehicle and traffic law in the custody of the property clerk shall be disposed of in accordance with the provisions of such section twelve hundred twenty-four. The city may convert to its own use in any calendar year one percent of any such abandoned vehicles not subject to subdivision two of such section twelve hundred twenty-four which are not claimed. All moneys or property other than abandoned vehicles subject to the provisions of such section twelve hundred twenty-four that shall remain in the custody of the property clerk for a period of three months without a lawful claimant entitled thereto shall, in the case of moneys, be paid into the general fund of the city established pursuant to section one hundred nine of the charter, and in the case of property other than such abandoned vehicles, be sold at public auction after having been advertised in "the City Record" for a period of ten days and the proceeds of such sale shall be paid into such fund. In the alternative, any such property may be used or converted to use for the purpose of any city, state or federal agency, or for charitable purposes, upon consultation with the human resources administration and other appropriate city agencies. Notwithstanding the foregoing, all property or money of a deceased person that shall come into the custody of the property clerk shall be delivered to a representative of the estate of such decedent and if there be no such representative, to the public administrator of the county where the decedent resided. Where moneys or property have been unlawfully obtained or stolen or embezzled or are the proceeds of crime or derived through crime or derived through the conversion of unlawfully acquired property or money or derived through the use or sale of property prohibited by law from being held, used or sold, or have been used as a means of committing crime or employed in aid or in furtherance of crime or held, used or sold in violation of law, or are the proceeds of or derived through bookmaking, policy, common gambling, keeping a gambling place or device, or any other form of illegal gambling activity or have been employed in or in connection with or in furtherance of any such gambling activity, a person who so obtained, received or derived any such moneys or property, or who so used, employed, sold or held any such moneys or property or permitted or suffered the same to be used, employed, sold or held, or who was a participant or accomplice in any such act, or a person who derives his or her claim in any manner from or through any such person, shall not be deemed to be the lawful claimant entitled to any such moneys or property except that as concerns any vehicle taken into custody in the manner provided for in subdivision b of section 20-519 of the code, the authorized tow company shall receive from the department the cost of towing and storage as provided under subdivision c of section 20-519.
2. The commissioner, however, where the property consists of any property that has been used as a means of committing crime or employed in aid or in furtherance of crime or held, used or sold in violation of law, or gambling apparatus or any property employed in or in connection with or in furtherance of any gambling activity, or burglar tools of any description, or firearms, cartridges or explosives, or armored or bullet-proof clothing or motor vehicles, or instruments, articles or medicines for the purpose of procuring abortion or preventing conception, or wines, fermented liquors and other alcoholic beverages and the receptacles thereof, or soiled, bloody or unsanitary clothing, or solids and liquids of unknown or uncertain composition, or opium, morphine, heroin, cocaine or any of its admixtures or derivatives, and other narcotics, or hypodermic syringes and needles, or obscene pictures, prints, books, publications, effigies or statues, or any poisonous, noxious, or deleterious solids or liquids, or any property which in the opinion of the commissioner, is of slight value or the sale of which might result in injury to the health, welfare or safety of the public, may direct and empower the property clerk to destroy each and every article of such nature. If, in the opinion of the commissioner, any such property may be used or converted to use for the purpose of the department or any city, state or federal agency, such property may in the discretion of the commissioner be used or converted to use for any such purpose, and the same need not be sold or destroyed as in this section provided.
3. Perishable property may be sold as soon as practicable on the best terms available and the proceeds of such sale shall be disposed of as in this section provided.
f. Lawful property right to be established. In any action or proceeding against the property clerk for or on account of any property or money in his or her custody, a claimant from whose possession such property or money was taken or obtained, or any other claimant, shall establish that he or she has a lawful title or property right in such property or money and lawfully obtained possession thereof and that such property or money was held and used in a lawful manner. In any such action or proceeding, a claimant who derives his or her title or right by assignment, transfer or otherwise from or through the person from whose possession such property or money was taken or obtained, shall further establish that such person had a lawful title or property right in such property or money and lawfully obtained possession thereof and that such property or money was held and used in a lawful manner.
g. No action for property or money held as evidence. No action or proceeding may be brought against the property clerk for or on account of any property or money held as evidence in any criminal investigation or proceeding until the termination thereof.
h. Preservation of property. Where the property consists of furs or other valuable property that may be subject to deterioration or damage if stored by the property clerk, the property clerk in his or her discretion may store such property with a private concern having special facilities for such storage, and the cost thereof shall be a lien upon such property to be paid by the owner thereof prior to the recovery of such property.
i. Removal and storage charges for motor vehicles and boats.
1. Whenever an abandoned motor vehicle or boat, or a motor vehicle or boat involved in an accident, or a boat found adrift and unoccupied upon the waters of the city of New York which is in the custody of the property clerk, shall be claimed by the owner or other person lawfully entitled to possession thereof, such owner or other person shall not be entitled to the return thereof unless he or she shall first pay to the property clerk a removal charge of twenty-five dollars and a storage charge of five dollars for each day, or fraction thereof, except that in the case of a boat found adrift and unoccupied upon the waters of the city of New York, such storage charge shall not be applied until three days after notice to the owner by registered mail from the property clerk that such boat is in police custody.
2. Whenever a stolen motor vehicle or boat, which is in the custody of the property clerk, shall not be removed by the owner or other person lawfully entitled to possession thereof within three days after notice by registered mail from the property clerk, such owner or other person shall not be entitled to the return thereof unless he or she shall first pay to the property clerk a storage charge of five dollars for each day, or fraction thereof, after the expiration of such three-day period.
3. Notwithstanding the provisions of paragraphs one and two of this subdivision, where the department has incurred charges for removal and storage of an abandoned or stolen motor vehicle pursuant to subchapter thirty-one of chapter two of title twenty of the code, an owner or other person lawfully entitled to possession of such motor vehicle shall not be entitled to the return thereof unless he or she shall first pay all such charges incurred by the department pursuant to such subchapter thirty-one together with any applicable storage charge provided for in this subdivision.
4. The removal and storage charges provided by this subdivision, or incurred by the department pursuant to subchapter thirty-one of chapter two of title twenty of such code, as applicable, shall be a lien upon such motor vehicle or boat and the property clerk shall refuse to return such motor vehicle or boat until such charges are paid, except that where such motor vehicle or boat is the property of an estate administered by a public administrator, the removal charge and the storage charge shall be general claims against the estate of the deceased.
5. The property clerk shall not require the payment of any charges provided by this subdivision for the removal or storage of any motor vehicle or boat in his or her custody while it is held as evidence in a criminal investigation or proceeding.
6. It shall be the duty of the property clerk to keep a complete record of the moneys collected pursuant to this subdivision. Such moneys shall be paid into the general fund of the city established pursuant to section one hundred nine of the charter.
j. Property and money desired to be produced in criminal court. If any property or money placed in the custody of the property clerk shall be desired to be produced as evidence in any criminal court, such property or money shall be delivered to any officer who shall present an order to that effect from such court. Property or money used as evidence in any criminal court shall not be retained in such court but shall be turned over as soon as practicable to the property clerk to be disposed of according to the provisions of this section.
k. Public administrators not affected. Nothing in this section shall in any way contravene, modify or repeal any existing provision of law, general, special or local, relating to the jurisdiction, powers, privileges, personnel, duties and functions of any public administrator.
(Am. L.L. 2017/131, 8/8/2017, eff. 8/8/2017; Am. 2021 N.Y. Laws Ch. 322, 8/2/2021, eff. 8/2/2021)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 1987/028.