Marra v. Hynes

221 A.D.2d 539, 635 N.Y.S.2d 482, 1995 N.Y. App. Div. LEXIS 11859

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 1995
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the District Attorney of Kings County to return to the petitioners certain items of personal property seized pursuant to a search warrant, the appeal is from a judgment of the Supreme Court, Kings County (I. Aronin, J.), dated June 22, 1994, which, upon denying the cross motion of the District Attorney of Kings County to dismiss the proceeding, granted the petition.

Ordered that the judgment is reversed, on the law, without costs or disbursements, the cross motion is granted, the petition is denied, and the proceeding is dismissed on the merits.

The instant proceeding, which was commenced in January 1994, seeks to compel the District Attorney of Kings County to return certain items of personal property to the petitioners. The record indicates that these items (1) were seized from the residence of the petitioners Joseph and Diana Marra during the execution of a search warrant which was based on probable cause and issued by the Supreme Court, Kings County, in January 1993, and (2) are being held in connection with an ongoing criminal investigation of the petitioner Joseph Marra. Under these circumstances, the Supreme Court erred in granting the petition (see, Simpson v St. John, 93 NY 363; Matter of DeBellis v Property Clerk of City of N. Y, 79 NY2d 49; Matter of Documents Seized Pursuant to Search Warrant, 124 Misc 2d 897; Kamienska v County of Westchester, 39 Mise 2d 750; cf, People v Gutterson, 34 NYS2d 174; People v Harris, 178 Mise 371). O’Brien, J. P., Santucci, Joy and Friedmann, JJ., concur.