Opinion
November 20, 1980
Order, Supreme Court, New York County, entered June 10, 1980, which denied the application, dismissed the petition, and directed the return to respondent of property consisting of $20,082 cash under Voucher No. A764949, unanimously reversed, on the law, without costs and disbursements, the petition reinstated and the matter remanded for a hearing. Petitioner, the property clerk, New York City Police Department, commenced this proceeding for judgment, declaring property seized under Voucher No. A764949 (to wit, $20,082 cash) as forfeited and the respondent as not the proper claimant. Respondent's residence was searched, pursuant to a warrant, on February 7, 1980, resulting in the seizure of $24,500 found in a safe (which money has been returned by petitioner) and $20,082 found in the drawers of respondent's personal desk, which desk also contained illegal gambling records. Respondent's arrest for the crimes of promoting gambling in the first degree and possession of gambling records in the first degree eventuated in his pleading guilty to possession of gambling records. Study of the record discloses a clear factual issue as to whether under the totality of the surrounding circumstances the $20,082 (which was segregated apart from the fund in the safe and was located in the desk in proximity to illegal gambling records) was the proceeds of illegal gambling activities, and that respondent is an unlawful claimant to said sum pursuant to section 435-4.0 of the Administrative Code of the City of New York. Thus, summary relief to respondent or to petitioner is not justified and a hearing is required.
Concur — Sullivan, J.P., Markewich, Lupiano, Silverman and Carro, JJ.