Procedures Relating to Property Taken or Obtained in Connection with an Arrest

RCNY tit. 38, ch. 12, subch. B

in effect

38 RCNY § 12-31 Definitions.

§ 12-31 Definitions. Arrest Evidence. The term "arrest evidence" shall mean property taken from the person or possession of an individual prior to, simultaneous with, or subsequent to an arrest because of its relation to the matter for which the person has been arrested. No property shall be deemed arrest evidence prior to the person's arrest. No property taken from a person and held by the Police Property Clerk merely for safekeeping shall be deemed arrest evidence. Claimant. The term "claimant" shall mean the person from whose person or possession property, other than contraband, was taken or obtained, who is seeking from the police property clerk the return of such property in the police property clerk's possession or property that has been transferred by the police property clerk to the district attorney of any of the five counties of the city. Contraband. The term "contraband" shall mean property the mere possession of which is prohibited under federal, state or local law. Property shall not be deemed to be contraband merely because it has been held as evidence or for custodial safe-keeping, or because it may be suspected or believed to be unlawfully obtained, stolen or the proceeds or instrumentality of a crime. Days. The term "days" shall mean calendar days unless otherwise indicated. District attorney's release. The term "district attorney's release" shall mean a statement from the appropriate district attorney's office that the subject property is no longer needed as evidence. A district attorney's release is not to be construed as a statement by the district attorney as to the possessory rights to the property of any person, including the claimant. District attorney supervisor. The term "district attorney supervisor" shall mean an assistant district attorney with authority to review the denial of an application for a district attorney's release. Proper identification. The term "proper identification" shall mean identification deemed acceptable and sufficient by the department of motor vehicles for the purpose of obtaining a driver's license. A list of such identification is contained in appendix A of this chapter. Property. The term "property" shall mean and include all property, whether it is real property, personal property, money, negotiable instruments, securities, or any other thing of value or any interest in a thing of value. Termination of criminal proceedings. The term "termination of criminal proceedings" shall mean the earliest of (i) thirty-one days following the imposition of sentence, (ii) the date of acquittal of a person arrested for an offense, (iii) where leave to file new charges or to resubmit the case to a new grand jury is required and has not been granted, thirty-one days following the dismissal of the last accusatory instrument filed in the case, or, if applicable, upon expiration of the time granted by the court or permitted by statute for filing new charges or resubmitting the case to a new grand jury, (iv) where leave to file new charges or to resubmit the case to a new grand jury is not required, thirty-one days following the dismissal of the last accusatory instrument filed in the case, or, if applicable, upon expiration of the time granted by the court or permitted by statute for filing new charges or resubmitting the case to a new grand jury, (v) six months from the issuance of an "Adjournment in Contemplation of Dismissal" order pursuant to C.P.L. § 170.55, or twelve months from the issuance of such an order pursuant to C.P.L. § 170.56, where the case is not restored to the court's calendar within the applicable six-month or twelve-month period, and (vi) the date when, prior to the filing of an accusatory instrument against a person arrested for an offense, the district attorney elects not to prosecute such person.

38 RCNY § 12-32 Vouchering Procedures.

§ 12-32 Vouchering Procedures. The police department and the district attorney, where applicable, of each of the five counties of the city have implemented the following procedures governing the taking or obtaining of non-contraband property from a person's possession at the time of arrest: (a) The police shall make an inventory of such property and shall issue a voucher, which shall be given to the person as a receipt for items taken. The voucher shall contain the name of the person, a complete itemized list of all non-contraband property taken, and a brief description thereof. (b) The person shall be given an opportunity to examine the voucher, and if such person finds the itemized list to be correct, such person may sign the voucher to acknowledge that it contains a complete list of property taken. Failure to sign the voucher shall not preclude a lawful claim being made for the property. (c) The person must be informed that if he or she believes any additional non-contraband property was taken from his or her person or from his or her possession, or if he or she believes that property was erroneously vouchered to him or her, he or she may so indicate on the voucher. The arresting officer may sign the voucher indicating his or her concurrence with the list of items or any disagreement. (d) A person is entitled to receive a voucher at the time of his or her arrest for property taken or obtained from his or her person or possession, and the other procedures set forth in these rules shall apply, regardless of whether the property has been denominated by the police department as "arrest evidence" or otherwise, and regardless of whether the arrest is prior to, simultaneous with, or subsequent to the taking or obtaining of the property. (e) In bold letters on the back of the voucher, or on a separate sheet attached to the voucher, notice shall be given in plain English and Spanish setting forth the following procedures: (i) The person from whose possession the property was taken should retain and safeguard the voucher; (ii) In order to obtain the return of the property, the claimant or a representative authorized by a notarized writing to claim the property will be required to submit, in person or by mail, the voucher and proper identification to the office of the police property clerk located at a central location in each borough. The property may be disposed of by the police property clerk according to law unless the claimant demands the property no later than 120 days after the termination of criminal proceedings. (iii) A claimant demanding the return of property other than arrest evidence does not require a district attorney's release and may make such a demand whether or not criminal proceedings have been instituted and, if instituted, whether or not such proceedings have been terminated. As used herein, "property other than arrest evidence" refers to non-contraband property taken from an arrestee merely for safekeeping or taken from the person or possession of an individual prior to, simultaneous with or subsequent to an arrest which is unrelated to the matter for which the individual was arrested. Following receipt of a demand for such property, the property clerk may return the property or otherwise proceed pursuant to the provisions of 38 RCNY §§ 12-36 and 12-37. (iv) A claimant demanding the return of arrest evidence from the property clerk should obtain prior to the demand either a district attorney's release or a supervising district attorney's statement refusing to grant a release, although presentation of either or both of these documents to the property clerk is not required for making a timely demand. If demand for the property is made without a district attorney's release, or a supervising district attorney's statement, the claimant shall have 270 days from such demand to obtain a district attorney's release or a supervising district attorney's statement refusing to grant a release. If a release or statement refusing to grant a release is not provided to the property clerk within such period, the property may be disposed of according to law. (v) If a claimant timely provides the property clerk with a district attorney's statement refusing to grant a release, the claimant must thereafter obtain a district attorney's release to obtain the return of the property. (f) In addition to the notice provided by the police property clerk, the district attorney shall, unless prohibited by the local arraigning court, provide the notice described in subdivision e of 38 RCNY § 12-32 to each person from whose person or possession property was taken or obtained when those persons initially appear at arraignment. The notice also shall set forth the procedures by which a claimant may obtain a district attorney's release and the procedures by which a claimant may seek review in the event that a release is denied. It is not required that the district attorney provide a copy of the voucher at arraignment.

38 RCNY § 12-33 Distribution and Posting of Notices Setting Forth the Procedures to be Followed to Obtain the Return of Property.

§ 12-33 Distribution and Posting of Notices Setting Forth the Procedures to be Followed to Obtain the Return of Property. The police department shall make available to any person requesting information about property in the possession of the police property clerk copies of the notice described in subdivision e of 38 RCNY § 12-32 at each station house and at each facility maintained by the property clerk. The police department shall post such notices, in no smaller than 24-point type, in the holding areas of all station houses, in all central booking facilities within the city and in each courthouse holding area within the city, that is within the control of the police department.

38 RCNY § 12-34 District Attorney's Release.

§ 12-34 District Attorney's Release. The district attorney of each of the five counties of the city have implemented the following procedures governing the giving of releases for property that is arrest evidence: (a) A request for a district attorney's release may be made, in person or by mail, by the claimant or by a representative authorized by a notarized writing by the claimant. (b) The request must be accompanied by a copy of the voucher or, if the voucher is lost or absent, an explanation for its loss or absence, proper identification and suitable case identification. In his or her discretion, the district attorney may waive any or all of these requirements. (c) If the request for a release is accompanied by the documents specified in subdivision b hereof, the district attorney shall, if the property is no longer needed as evidence, grant a release no more than fifteen days after receipt of the request. If the property is or may be needed as evidence, the district attorney shall follow the procedures hereinafter set forth. (d) Before the termination of criminal proceedings, the district attorney shall provide a release to a claimant upon request unless the district attorney determines that the property is or may be needed as evidence. After the termination of criminal proceedings, the district attorney shall provide a release to a claimant upon request unless the district attorney determines that the property needs to be retained as evidence due to (i) a pending appeal; (ii) a collateral attack or notice that a collateral attack will be commenced; (iii) another specifically identified criminal proceeding or (iv) an ongoing identifiable criminal investigation. In all cases, a district attorney's determination not to provide a release to a claimant because the property is or may be needed as evidence shall be made in good faith. The district attorney's release shall be personally delivered to the claimant or mailed to the claimant at the address provided by the claimant on the form making the request for release. (e) Whenever a release is denied to a claimant either before or following the termination of criminal proceedings, the district attorney must provide in writing the reason for the refusal no more than fifteen days after receipt of the request. The claimant also must then be informed that he or she may obtain review by a supervising assistant district attorney, who shall not be the individual who made the initial determination, which review must be provided to the claimant within ten days of the request for review. A supervising assistant district attorney's refusal to provide a claimant a release must be in writing stating the particularized reason(s) for the refusal, which reasons must be in conformity with subdivisions c and d, above. The notices provided by the district attorney shall be personally delivered to the claimant or mailed to the claimant at the address provided by the claimant on the form making the request for release. (f) The claimant may reapply to the district attorney for a release at any time after the date of issuance of the statement upholding the denial. (g) The district attorney may utilize standard forms, uniform throughout the five boroughs, consistent with these rules, for (i) Claimant's request for a district attorney's release, which shall also serve as an acknowledgement of receipt; (ii) Claimant's request for a review of a denial of a district attorney's release, a copy which shall also serve as an acknowledgement of receipt; (iii) District attorney supervisor's statement of reasons for upholding a denial of a release; and (iv) District attorney's release.

38 RCNY § 12-35 Disposition of Property by the Police Property Clerk Where There Has Been an Arrest.

§ 12-35 Disposition of Property by the Police Property Clerk Where There Has Been an Arrest. Where there has been an arrest prior to, simultaneous with, or subsequent to the taking or obtaining of the property, the property clerk shall take the following steps with regard to all vouchered property, subject to a different disposition required by other applicable federal, state or local law: (a) Subject to the provisions of 38 RCNY §§ 12-36 and 12-37, the police property clerk shall return all non-contraband property other than arrest evidence to a claimant who produces proper identification and the voucher issued to him or her for the property. The property clerk shall not require such claimant to submit a district attorney's release covering such property, and such claimant may make a demand whether or not criminal proceedings have been instituted and, if instituted, whether or not such proceedings have been terminated. (b) Subject to the provisions of 38 RCNY §§ 12-36 and 12-37, the police property clerk shall return all non-contraband arrest evidence, which is or shall hereinafter come into his or her possession or custody, upon timely demand, to a claimant who produces proper identification and who submits a written district attorney's release covering such property and the voucher issued at the time of arrest. Failure to produce the voucher shall not preclude a lawful claim being made for property, although the property clerk may require the claimant to explain the loss or absence of the voucher. (c) A demand for the return of property shall be timely if made within 120 days after the termination of criminal proceedings, whether or not the demand is accompanied by a district attorney's release or a statement upholding a denial of the release. A demand may be made in person or by mail by the claimant or by a representative authorized in writing to claim the property on behalf of the claimant. (d) If a timely demand is made without a district attorney's release, the property clerk may treat such a demand as an inquiry and require a claimant to provide, within 270 days of the inquiry, the property clerk with a district attorney's release or a supervising district attorney's statement upholding the denial of the release. If the claimant fails within such 270 days to provide the property clerk with a district attorney's release or a supervising district attorney's statement upholding the denial of the release, the property clerk may dispose of the property according to law. (e) If the claimant provides the property clerk with a district attorney's release within the time period set forth in subdivision c, the property clerk shall return the property as required by subdivision b above. If the claimant provides the property clerk with a copy of the supervising district attorney's statement upholding the denial of the release, the property clerk must retain the property and shall either (i) return the property to the claimant when the claimant thereafter provides the property clerk with a district attorney's release, or (ii) when the property clerk learns that the property is not needed as evidence, give written notice to the claimant or the claimant's representative, at his or her last known address, which may be the address of a correctional facility, that the property will be returned forthwith to that person. Property that remains unclaimed for a period of 120 days after the date of the notice specified in (ii), or the remainder of the time provided to a claimant to obtain a release under subdivision d, whichever is greater, may be disposed of by the property clerk according to law. (f) In no event shall a claimant be required to obtain any additional documentation or evidence relating to the property or be required to submit any proof of ownership of the property other than the voucher, except if the vouchered property is a motor vehicle, then title (or a reasonable explanation for its absence) may be required. (g) The police property clerk must provide each claimant with a written "acknowledgement of demand or inquiry," indicating the date the demand or inquiry was made and a description of the property demanded. (h) In any situation where the property clerk has returned property to the person from whom it was taken or obtained in accordance with this subchapter, the property clerk shall not be liable to any subsequent claimant for the same property.

38 RCNY § 12-36 Property Clerk Forfeiture Proceedings.

§ 12-36 Property Clerk Forfeiture Proceedings. Where the property clerk has reasonable cause to believe that property was unlawfully obtained or was the proceeds or instrumentality of a crime or otherwise may be subject to forfeiture under any applicable provision of law, the property clerk may refuse to return the property and may cause a civil forfeiture proceeding or other similar civil proceeding to be initiated in accordance with the following: (a) Such proceeding may, subject to the time limitation below, be instituted either before or after a claimant makes a demand to the property clerk for the return of the property. If such proceeding is instituted before the termination of criminal proceedings against the claimant, this subchapter shall not be construed to effect any right of a party to the forfeiture proceeding to have the forfeiture proceeding stayed for such period as the court may determine. If a timely demand is made for the return of the property before the forfeiture proceeding is instituted, such proceeding shall be brought no later than (i) in the case of arrest evidence, 25 days after the claimant provides the property clerk with a district attorney's release, and (ii) in all other cases, as a district attorney's release is not required, within 25 days after the date of demand. If such proceeding is not commenced within this time period, the property clerk shall give written notice to the claimant or the claimant's representative, at his or her last known address, which may be the address of a correctional facility, that the property will be returned forthwith to that person. Property that remains unclaimed for a period of 120 days after the date of such notice may be disposed of by the property clerk according to law. (b) Notice of commencement of a forfeiture proceeding by the property clerk shall include a statement of the grounds upon which the property clerk seeks to justify the continued retention of the property. Any such proceeding shall provide the claimant and any other interested persons with an adequate opportunity to be heard within a reasonable period of time. In any such proceeding the property clerk shall bear the burden of proving by a preponderance of the evidence that the property clerk is legally justified to continue to retain the property.

38 RCNY § 12-37 Property Not Subject to Forfeiture but Subject to More Than One Claim.

§ 12-37 Property Not Subject to Forfeiture but Subject to More Than One Claim. When property is not subject to forfeiture under 38 RCNY § 12-36, but is, or may be, subject to more than one claim, the police property clerk shall take the following action: (a) Where the person from whom the property was taken makes a timely demand to the police property clerk for the return of the property, the property clerk shall return the property to the claimant unless an additional claim is made in writing or in person within 25 days of the claimant's demand, in which case the property clerk shall within five days of the date of the additional claim provide each interested person (including the original claimant) with the name and address of all such interested persons, and shall retain the property pending a disposition of the matter between the persons who claim it. If within 30 days thereafter no settlement is reached between the persons who claim it, and the police property clerk has received no court order regarding the property or any notice of any action pending between the persons who claim it regarding the property, the police property clerk shall release the property to the claimant from whom the property was taken. (b) When acting as a stakeholder pursuant to the provisions of this section, the police property clerk will not be liable for costs, interest or damages arising out of the continued detention of such property or money. Nothing contained in this subchapter shall be deemed to either require or prohibit the police property clerk from initiating a stakeholder proceeding in accordance with the civil practice law and rules.

38 RCNY § 12-38 Investigatory Property.

§ 12-38 Investigatory Property. Investigatory property unconnected to an arrest (as distinguished from property seized at the time of an arrest or property seized in a case in which an arrest is later made) is not within the scope of this subchapter.

Source: City of New York, Charter, Administrative Code and Rules (American Legal Publishing XML export, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCrules/0-0-0-77967Fetched: 10/24/2026