§ 450.10 Disposal of stolen property.
1. When property, other than contraband including but not limited to
those items subject to the provisions of sections 410.00, 415.00, 420.00
and 420.05 of this chapter, alleged to have been stolen is in the custody
of a police officer, a peace officer or a district attorney 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
this section. When a request is made for the return of stolen property
under this section, the police officer, peace officer or district attorney
in possession of such property must provide written notice to the defendant
or his counsel of such request as soon as practicable. Such notice shall
advise the defendant or his counsel of the date on which the property will
be released and the name and address of a person with whom arrangements can
be made for the examination, testing, photographing, photocopying or other
reproduction of said property.
2. Both the defendant's counsel and the prosecutor thereafter shall make
a diligent effort to examine, test and photograph, photocopy or otherwise
reproduce the property. Either party may apply to the court for an
extension of any period allowed for examination, testing, photographing,
photocopying or otherwise reproducing the property. For good cause shown
the court may order retention of the property for use as evidence by either
party. Unless extended by a court order sought by either party on notice to
the other, the property shall be released no later than the time periods
for retention set forth in subdivisions three and four of this section to
the person making such request after satisfactory proof of such person's
entitlement to the possession thereof. Unless a court, upon applicaton of
either party with notice to the other, orders otherwise, the release of
property in accordance with the provisions of this section shall be
unconditional.
3. Except as provided in subdivision four of this section, when a request
is made for the release of property described in subdivision one of this
section, the property shall be retained until either the expiration of a
fifteen day period from receipt by the defendant or his counsel of the
notice of the request, or the examination testing and photographing,
photocopying or other reproduction of such property, by the parties,
whichever event occurs first. The fifteen day period may be extended by up
to five additional days by agreement between the parties.
4. (a) Except as provided in paragraphs (b) and (c) of this subdivision
and in subdivision eleven of this section, when a request is made for the
release of property described in subdivision one of this section, and the
property shall consist of perishables, fungible retail items, motor
vehicles or any other property release of which is necessary for either the
operation of a business or the health or welfare of any person, the
property shall be retained until either the expiration of a forty-eight
hour period from the receipt by the defendant's counsel of the notice of
the request, or the examination, testing and photocopying, photographing or
other reproduction of such property, by the parties whichever event occurs
first. The forty-eight hour period may be extended by up to twenty-four
additional hours by agreement between the parties. For the purposes of this
section, perishables shall mean any property likely to spoil or decay or
diminish significantly in value within twenty days of the initial retention
of the property.
(b) If, upon oral or written application by the district attorney with
notice to the defendant or his counsel, a court determines that immediate
release of property described in paragraph (a) of this subdivision is
required under the attendant circumstances, the court shall issue an order
releasing the property and, if requested by either party, setting, as a
part of such order, any condition appropriate in the furtherance of
justice.
(c) A motor vehicle alleged to have been stolen but not alleged to have
been used in connection with any crime or criminal transaction other than
the theft or unlawful use of said motor vehicle, which is in the custody of
a police officer, a peace officer or a district attorney, may be released
expeditiously to its registered owner or the owner's representative without
prior notice to the defendant. Before such release, evidentiary photographs
shall be taken of such motor vehicle. Such photographs shall include the
vehicle identification number, registration on windshield, license plates,
each side of the vehicle, including vent windows, door locks and handles,
the front and back of the vehicle, the interior of the vehicle, including
ignition lock, seat to floor clearance, center console, radio receptacle
and dashboard area, the motor, and any other interior or exterior surfaces
showing any and all damage to the vehicle. Notice of such release, and the
photographs taken of said vehicle, shall be furnished to the defendant
within fifteen days after arraignment or after counsel initially appears on
behalf of the defendant or respondent, whichever occurs later.
5. If stolen property comes into the custody of a court, it must, unless
temporary retention be deemed necessary in furtherance of justice, be
delivered to the owner, on satisfactory proof of his title, and on his
paying the necessary expenses incurred in its preservation, to be certified
by the court.
6. If stolen property has not been delivered to the owner, the court
before which a trial is had for stealing it, may, on proof of his title,
order it to be restored to the owner.
7. If stolen property is not claimed by the owner, before the expiration
of six months from the conviction of a person for stealing it, the court or
other officer having it in custody must, on payment of the necessary
expenses incurred in its preservation, deliver it to the county
commissioner of social services, or in the city of New York, to the
commissioner of social services, to be applied for the benefit of the poor
of the county or city, as the case may be.
8. Except in the city of New York, when money or other property is taken
from a defendant, arrested upon a charge of an offense, the officer taking
it must, at the time, give duplicate receipts therefor, specifying
particularly the amount of property taken, one of which receipts he must
deliver to the defendant, and the other of which he must forthwith file
with the court in which the criminal action is pending.
9. The commissioners of police of the city of New York may designate some
person to take charge of all property alleged to be stolen, and which may
be brought into the police office, and all property taken from the person
of a prisoner, and may prescribe regulations in regard to the duties of the
clerk or clerks so designated, and to require and take security for the
faithful performance of the duties imposed by this subdivision, and it
shall be the duty of every officer into whose possession such property may
come, to deliver the same forthwith to the person so designated.
10. Where there has been a failure to comply with the provisions of this
section, and where the district attorney does not demonstrate to the
satisfaction of the court that such failure has not caused the defendant
prejudice, the court shall instruct the jury that it may consider such
failure in determining the weight to be given such evidence and may also
impose any other sanction set forth in subdivision one of section 240.70 of
the criminal procedure law; provided, however, that unless the defendant
has convinced the court that such failure has caused him undue prejudice,
the court shall not preclude the district attorney from introducing into
evidence the property, photographs, photocopies, or other reproductions of
the property or, where appropriate, testimony concerning its value and
condition, where such evidence is otherwise properly authenticated and
admissible under the rules of evidence. Failure to comply with any one or
more of the provisions of this section shall not for that reason alone be
grounds for dismissal of the accusatory instrument.
11. When a request for the release of stolen property is made pursuant to
paragraph (a) of subdivision four of this section and the defendant is not
represented by counsel the notice required pursuant to subdivision one of
this section shall be personally delivered to the defendant and release of
said property shall not occur for a period less than five days: from (a)
the delivery of such notice; or (b) in the case of delivery to such person
in custody, from the first appearance before the court, whichever is later.
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