Citation Numbers: 177 A.D.2d 316
Filed Date: 11/12/1991
Status: Precedential
Modified Date: 1/13/2022
Order of the Family Court, New York County (Michael Gage, J.), entered May 11, 1990, which upon the grant of a motion by respondent, Nicomedes F., to preclude all evidence concerning the allegedly stolen vehicle, including value and condition and property found within the vehicle as well as evidence relating to the investigatory stop and arrest, for failure to observe Penal Law § 450.10, dismissed the petition, is unanimously reversed, on the law, the motion by respondent to preclude is denied and the petition reinstated without costs or disbursements.
A petition was filed against respondent, Nicomedes F., in Family Court, alleging that he committed acts, which if com
When respondent and his mother appeared without counsel at the Probation Service on February 23, 1990, four days after the arrest, they were given a written notice of release of stolen property which informed them that the automobile was being held as evidence against respondent and would be released on March 1, 1990 but "you have the right to examine, test and photograph * * * the property” before the release. The notice also contained an address and telephone number of the Assistant Corporation Counsel through whom arrangements for said inspection could be made. Respondent did not avail himself of the right to photograph the automobile and no photographs were taken by the presentment agency.
The order of the Family Court precluded the presentment agency from offering evidence relating to the stolen automobile, including the value and condition, any property found inside and any evidence as to the stop and the arrest of respondent.
We find that service of a written notice of release of stolen property to the owner upon both respondent and his mother prior to the filing of the juvenile delinquency petition was in accordance with Penal Law § 450.10. Therefore, under the express language of Penal Law § 450.10 (10), the Family Court committed reversible error by granting respondent’s motion to preclude all evidence and dismissing the petition.
Penal Law § 450.10, which governs disposal of stolen property, provides for the crime victim to recover the property quickly and at the same time protect future evidence. (See, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 450.10, at 544 et seq.). Penal Law § 450.10 (1) provides that "[wjhen a request is made for the
We note that there is no statutory or constitutional right to counsel at the preliminary stage of juvenile proceedings when respondent and his mother were served. (See, Matter of Jamal C., 75 NY2d 893; Kirby v Illinois, 406 US 682, 688-689.) Because counsel was not mandated at the initial stages of the proceedings, the personal service of the notice on respondent and his mother complied with the statute. (Matter of Edwin P., 146 Misc 2d 694.) Nor is there any showing that the notice was inadequate as it gave the information required to permit respondent to make an appointment to photograph and examine the automobile and respondent does not contend that it was written in a language he could not understand. (Cf., Matter of Edwin P., supra, at 696.)
Penal Law § 450.10 (10) states that if there is a failure to comply with other provisions of the statute, and the District Attorney (here presentment agency) "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 sanction set forth in CPL 240.70. Subdivision (10) continues 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.”
The respondent contends that the court properly precluded evidence of the value or condition of the car or the grounds for stopping the car, that without such evidence no case