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Article 78 Is Proper Mechanism for Seeking Return of Property Held by the Police Department/Here Petitioner Was Not Entitled to Return of Firearm Not Licensed in New York/Firearms Owners’ Protection Act Did Not Apply

The Second Department determined that, although an Article 78 proceeding can be used to seek the return of property from the police department, the proceeding can not be used to seek the return of contraband.  Under the facts here, the firearm at issue was contraband because the petitioner did not have a license to possess it in New York, in spite of the fact the firearm had been legally purchased and possessed in California. In addition, the court held that the petitioner was not simply transporting the firearm through New York, an act protected by the Firearms Owners’ Protection Act (18 USC 926A):

Under the circumstances of this case, the Supreme Court correctly determined that the Firearm Owners’ Protection Act (18 USC § 926A) was not applicable. “Section 926A permits a licensee, in certain circumstances, to transport a firearm from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm'” … . The firearm owner must be actually engaging in travel or acts incidental to travel …, and during the transportation, the weapon and ammunition must not be readily accessible … . Here, the petitioner failed to establish that he was only engaged in travel through New York so as to invoke the protection of section 926A … . Matter of Khoshneviss v Property Clerk of NYC Police Dept, 2014 NY Slip Op 08844, 2nd Dept 12-17-14

 

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