§ 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.
