The People, Respondent,v.Stephen DeProspero, Appellant.BriefN.Y.February 12, 2013To Be Argued By: Scott D. McNamara, Esq. Time Requested For Argument: 20 minutes THE PEOPLE OF THE STATE OF NEW YORIC, Plaintiff-Respondent, VS. Defendant-Appellant. SCOTT D. MCNAMARA, ESQ. Oneida County District Attorney 235 Elizabeth Street Utica, New Yorlc 13501 3151798-5766 3151798-5582 (fax) DATE: June 25,2012 STEVEN G. COX, ESQ. Assistant District Attorney Chief Appellate Counsel Of Counsel Table Of Contents .......................................................................................................................... 2 Table Of Citations ......................................................................................................................... 3 Preliminary Statement ..................................................................................................................... 6 Facts ............................................................................................................................................... 10 POINT I ........................................................................................................................................ 19 The inspection of digital media seized pursuant to a lawful judicial order was proper ....... 19 POINT I1 ....................................................................................................................................... 28 The Constitution imposes no deadline for the forensic examination of evidence seized ......................................................................................................................................... lawfully 28 POINT I11 ..................................................................................................................................... 40 Law enforcement, Prosecutors and the Courts have a common-law obligation to prevent the return of contraband to any individual ............................................................................... 40 ..................................................................................................................................... Conclusion 46 CASES Boyle Kelley, 42 NY2d 88 [1977]----------------------------------------------------------------------- 44 Brigham City v Stuart, 547 US 398 [2006] .............................................................. 2 8 Carroll v United States, 267 US 132 [I9251 ............................................................. 4 1 Colorado v Beytine, 479 US 367 [I9871 ................................................................. 29 DXB Video Tapes, Inc, v Halay, 23 9 AD2d 205 [ I st Dept. 19971 ................................... 44 Jacobsen v United States, 503 US 540 [I99 11 .......................................................... 42 Katz United States, 389 US 347 [I9671 ................................................................ 29 Kyllo v Unitedstates, 533 US 27 [2001]----------------------------------------------------------------- 3 1 Marylandv Garrison, 480 US 79 [I9871 ................................................................ 3 7 Matter of De Bellis v Property Clerk of City of New York, 79 NY2d 49, 58 [1992]--------------- 26 Matter of DeBellis v Property Clerk of City of New York, 79 NY2d 49 [I9921 .................... 2 3 Matter of Sea Lar Trading Co, v Michael, 94 AD2d 309 [lst Dept. 19831, appeal dismissed 60 NY2d 860 [I9831 ..................................................................................... 17,24 McClendon v Rosetti, 460 F2d 1 1 1 [2d Cir. 19721 .................................................... - 22 Moss v Spitzer, 19 AD3d 599 [2d Dept, 20051 .......................................................... 44 One I958 Plymouth Sedan v. Pennsylvania, 3 80 US 693, 699 [I9651 .............................. 2 5 People v DeProspero, 9 1 AD3 39 [4th Dept. 201 11 ....................................... 15, 17,23,35 People v Galak, 80 NY2d 7 15 [I9931 .................................................................... 2 9 People v King, 232 AD2d 1 1 1 [2d Dept. 19971, lv. denied 91 NY2d 875 [1997]------------------ 3 6 People v Weaver, 12 NY3d 433 [2009] .................................................................. 3 O Simpson St, John, 48 Sicltels 363 [1883]--------------------------------------------------------------- 4 3 South Dakota v Opperman, 428 US 364 [1976] ........................................................ 2 9 SSC Corp. v State of N Y. Organized Crime Task Force, 128 AD2d 860 [2d Dept. 19871 ------- 44 Sullivan v Grupposo, 77 Misc 2d 833 [Civ. Ct. 19741 .......................... ---- ------------------ - 4 1 United States v $490,920 in US . Currency, 91 1 FSupp 720 [SDNY 19961 ........................ 24 United States v Brignoni-Ponce, 422 US 873 [I9751 .................................................. 29 United States v Cartier, 543F3d 442 [8th Cir, 20081 ................................................... 3 8 United States v Fnrrell, 606 F2d 1341 [DC Cir. 19791 ................................................. 2 5 United States v Gorrell, 360 FSupp2d 48 [2004] ....................................................... 34 United States v Guevera, 586 FSupp 760 [EDNY 19841 .............................................. 43 United States v Harrell, 530 F3d 105 1, [9th Cir. 20081 ............................................... 2 5 United States v Hernandez, 183 FSupp2d 468 [US Dist Ct Puerto Rico 20021 ---------------- 16,33 United States v Jeffers, 342 US 48 [I95 11 ............................................................... 40 Unitedstates Knights, 534 US 112 [2001] ............................................................ 29 United States v LaFatch, 565 F2d 8 1 [6th Cir, 19771 .................................................. 3 5 United States v Mutschelknaus, 564 FSupp2d 1072 [US Dist Ct ND 20081, affd 592 F3d 826 [2008] ................................................................................................... 16,35 United States v Triumph Capital Group, Inc. 21 1 FRD 3 1 (US Dist Ct. Conn. 2002) ------------ 34 US v Poller, 43 F2d 9 1 1 [CA2 19301 ..................................................................... 2 8 US v Syphers, 296 FSupp2d 50 [US Dist Ct. New Hampshire 20031, cert denied 426 F3d 461 [2003] .............................................................................................. 34,35 Warden v Hayden, 387 US 294 [I9671 ................................................................... 27 Wise v Henkel, 220 US 556 [I91 11 ...................................................................... - 43 Wyoming v Houghton, 526 US 295 [I9991 ............................................................. - 29 CPL 5 440.10 (1 -a) .......................................................................................... 3 6 CPL 5 440.10 [1 (g)]) [Preiser, Commentary CPL 5 440.101 ......................................... 3 6 CpL 5 690 ..................................................................................................... 2 1 CPL 5 690.05 ................................................................................................. 2 1 CPL 5 690.55 ................................................................................................. 22 CPL 5 690.55 [I] ............................................................................................ 4 5 CPL 5 690.55 [I] [a] ........................................................................................ 45 c p ~ 5 710,70------------------------------------------------------------------------------------------------- 44 David E. Steinberg, The Original Understanding of Unreasonable Searches and Seizures, 56 Fla. L, Rev, 1051, 1068-1069 [2004] ....................................................................... 28 McI(imey's Commentaries, CPL 8 450.90 .............................................................. 3 7 One 1958 Plymouth Sedan v Pennsylvania, 3 80 US 693 (1 965) ..................................... 40 Orin S. Kerr, Digital Evidence and the New Criminal Procedure, 105 Colum. L. Rev. 279, 303 [~OO~I------------------------------------------------------------------------------------------------------- 3 8 Orin S. Icerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 [2007] ----- 3 1 Rutland, The Birth of the Bill of Rights 25 (1 955) ...................................................... 27 PRELIMINARY STATEMENT The protections of the Fourth Amendment guarantee each citizen the freedom to be protected from unreasonable search and seizure conducted by the government or its agents. Further, the Fourth Amendment requires that all search warrants be issued by a neutral, detached magistrate and be based upon probable cause. The Fourth Amendment does not require that the government complete its analyses of evidence seized pursuant to a lawful warrant within any specific period of time. Defendant here proposes just such a rule. It is a position this Court should not adopt. Defendant Stephen DeProspero used an internet peer-to-peer file sharing network, between February 18,2009 and March 3,2009, to obtain files containing laown child pornography images. A State Police investigation ensued, leading to issuance of a search warrant for defendant's residence, computer, and various related digital media (R 8-20). His computer was seized as was an external hard - drive, two Nilton digital cameras with storage media, a cell phone, and various storage media (R 19). A cursory "preview" examination of these items by State Police located a single image depicting a pre-teen girl performing oral sex upon an adult male. Then, unbelaownst to prosecutors, the seized material languished in the State Police Laboratory without being forensically examined in full. Believing that forensic examination was complete and only the single image was recovered, Assistant District Attorney Todd Carville allowed defendant to plead guilty to a single count of possessing a sexual performance of a child in Oneida County Court on September 17,2009. Defendant was sentenced to six months in the county jail and ten years on probation upon that plea (R 24). After his release from jail, defendant's attorney requested return of his seized property. He did so informally, by asking the prosecutor to return it. Carville, believing that the seized evidence had already been examined, put into motion the process of retrieving the evidence from the state police to return to defendant. However, Carville insisted, it would only be returned once law enforcement was certain it contained no contraband. State Police Laboratory personnel, who had maintain custody of the seized evidence since the original search, then conducted a thorough forensic examination of the media. On the storage card inside one of the digital cameras, investigators - found a deleted video clip from which they recovered 353 still images depicting an adult male's penis inside the mouth of a child who appeared to be less than 12 years of age. This video appeared to be homemade (R 40-41). This discovery led to defendant's second indictment, 12010-3 15, upon which he eventually entered another plea of guilty; this time to one count of predatory sexual assault against a child, for which he would receive a sentence of 18 years-to-life (R 165-166). Later, defendant would plead guilty to related charges in federal district court, where he would receive a sentence of 40 years imprisonment. The Criminal Procedure Law provides that property seized pursuant to a search warrant remains in the custody of the court. The District Attorney or a police property clerk possess such property only as an officer of the court, subject to the court's direction and disposition (Simpson v St. John,48 Sicltels 363 [1883]; 1973, Opn A.G. 239,240; Wise v. Henke1,220 US 556 [I91 11; compare Hunsucker v Phinney, 497 F2d 29,32 and n. 3 [CA 5 19741, cert, den. 420 US 927). County Court here clearly ordered, in its search warrant, that the seized computer material be retained by the police agency "for the purpose of further analysis and examination" (R 8). Contrary to defendant's contentions, police property clerlcs do not possess the power to return contraband to defendants under any circumstances. No demand, no matter how properly executed, nor any district attorney's release - authorizes the return of a homicide weapon, narcotics, blood samples, or - as here - child pornography. The legislature long ago created a statutory mechanism for defendants to petition a court to seek new forensic testing of old evidence - seized and held pursuant to a search warrant - in an effort to prove their actual innocence (see CPL fj 440.10 [I-a]). The very fact that such a statute exists is presumptive evidence of the authority of the courts to hold contraband or evidence well beyond the date of a defendant's conviction and still maintain the power to issue orders regarding it. FACTS Defendant Stephen DeProspero came onto police radar when he used an internet peer-to-peer file-sharing network to obtain child pornography between February 18, 2009 and March 3,2009. New Yorlt State Police Investigator Todd Grant observed these online transactions, leading to the issuance of a search warrant by Hon. Michael L. Dwyer, dated May 4,2009, for defendant's residence. The warrant authorized the seizure of his computers and any related media which could store graphic images or video files (R 8-20). Defendant was one of a number of people arrested in a large-scale sweep of similarly situated defendants conducted May 5,2009 (A29-30). In a meeting prior to simultaneous execution of multiple warrants, State Police forensic officials were made aware of the scope of the operation and assured prosecutors that they had the capacity to examine all forensic evidence seized during the operation (A30). Members of the New Yorlt State Police executed the search warrant at defendant's home, seizing a variety of digital media including a Sony brand desktop computer, Western Digital exterior hard drive storage device, two Nilton Coolpix digital cameras containing media, a Verizon LG cell phone, and multiple CDs (R 18- 19). As a preliminary step, State Police Investigator Alan Cordary conducted a forensic "preview" or cursory forensic examination of the seized media during which he located a single image clearly depicting a pre-teen girl performing oral sex upon an adult male on defendant's computer. This preview was conducted on May 5,2009. Assistant District Attorney Todd Carville, who had been assigned to prosecute the case, was contacted by Hugh Byrne, an administrator fiom the-then Developmental Disability Services Office (now the Office for People with Developmental Disabilities), within a week of defendant's arrest. Byrne expressed concern over defendant's access to children through his employment at that agency (R30-3 1). Byrne also told Carville that defendant had shown a particular interest in one of the children cared for by the DDSO at his facility. Carville informed Child Advocacy Center Director Kevin Revere of these concerns, as well as the State Police investigators assigned to the case. Nevertheless, a complete forensic examination of the seized property did not take place before the first prosecution concluded. Defendant pled guilty September 17,2009 to one count of possessing a sexual performance of a child in Oneida - County Court and was sentenced to six months in the county jail and ten years probation (R 24). It was not until defendant requested the return of his property, following completion of his jail sentence, around November 2009, that a full forensic examination of the property took place at the New York State Police Laboratory. Brian Salmon, a computer forensic analyst at the crime lab, discovered "several hundred images and videos depicting child pornography, all of which appear to have been downloaded from the internet via the peer to peer file sharing program Limewire on the computer hard drive (R 40). Salmon also examined the media inside one of the seized cameras and found a deleted video clip from which he recovered 353 still images depicting an adult male's penis inside the mouth of a child who appeared to be less than 12 years of age. This video appeared to be homemade. The child was identified as a resident of the developmental center where defendant was employed and items in the background enabled officials to determine what particular room the videotaping toolc place in. An additional search warrant was issued to enable law enforcement to photograph defendant's penis. They were then able to match an identifying birthmark visible on the penis in the images recovered fiom the deleted clip to one on defendant's penis. Additional explicit images of apparently the same child were located on defendant's external hard drive (R 40-41). The child victim, it was determined, was an autistic, severely developmentally disabled child whom defendant cared for at his place of employment - the DDSO. The abuse occurred on five occasions between September 2006 and December 2007 (R 144). Based upon the information developed through the state investigation, a federal search warrant was issued for the seized materials by Hon. David Peebles on March 15'20 10 (R 2 1-42). That federal search warrant led to the recovery of additional images which formed the basis of a separate federal prosecution. Defendant was also charged, in I201 0-3 15, filed August 5,2010 with predatory sexual assault against a child and four counts of criminal sexual act in the first degree (R 5-6). This indictment encompassed only the incidents recorded on the data card from the camera and an external hard drive, not images found on the computer itself. It is only 120 10-3 15 that is the subject of this appeal. Decision to search, not wipe clean.. . The state police often merely wipe clean media which may have contained child pornography before returning it, according to Sr. Investigator Terry Aubin (R 124-125). Instead, arrangements were made by Carville for the state police to examine the materials to be sure no contraband was contained on them before returning them to defendant. During a suppression hearing conducted October 29,20 12, Carville testified that he specifically informed defendant's attorney Frank Mellace he could not return property that potentially contained contraband and that it would be up to the State Police lab to determine whether any of the seized material contained contraband (R 99). Carville, believing that the seized material had been forensically examined by then, contacted State Police Sr. Investigator A1 Cordary to arrange return of the property that had been deemed clean. However, Carville learned that this was not the case (R 101). Camille had by then discovered that the State Police lab had failed to conduct promised forensic examinations in a timely manner in another case he was handling (R 101). Therefore, rather than rely on the State Police lab for this examination, he tried to rnalte arrangements to have the material transferred to the computer forensics lab at Utica Police Department to be analyzed by Sgt. Anthony Martino. Analysts with the State Police lab resisted transferring the seized materials, telling Camille that they had "their own procedures" and "they will look at it themselves and go from there" (R 102- 103). At one point, it was suggested to Carville that a "wipe order" - an order to wipe the media clean of everything - might suffice. But, based on advice from Sgt. Martino, Carville declined, explaining that this could cause evidentiary problems in the future if the same devices were ever seized again (R 103). Ultimately the state police lab did conduct a thorough forensic examination which yielded the additional evidence which became the subject of suppression proceedings in County Court. County Court's suppression decision.. . Following a hearing, County Court issued a written suppression decision, dated December 8, 20 10, noting that CPL 5 690.55 [l][b] states that the person who applied for a search warrant may retain seized property in his or her custody until the court directs the property be returned. No such order was ever issued in this case (R 152). The court stated that "[tlhere is nothing inherently wrong or improper about a delayed analysis or inspection of property that is lawfully seized. There is no statutory or case law authority that lays out a timetable under which evidence may be analyzed" (R 153). County Court made the following findings of fact: The search warrant was issued on May 4,2009. This warrant authorized the search and seizure of the hard drive within the defendant's computer and the memory card within the defendant's digital camera. The police searched the hard drive until they found evidence of child pornography so that an arrest could be made. The remainder of the hard drive and the camera memory card were not searched at this time. The hearing testimony established that a complete search was not done because it is a time-intensive procedure and the lack of manpower assigned to this type of work at the State Police Lab. The search of the memory card which produced evidence of a crime was performed in January or February of 201 0. This total search of the hard drive and the memory card was generated by the defendant's request for a return of his property. The purpose of the later forensic examination was to insure that the police did not return property which contained child pornography (R 20-2 1). County Court observed that it could find no statutory or case law authority laying out a "timetable" under which evidence must be examined. Further, commenting on the nature of digital evidence, County Court observed, "[tlo institute a bright-line rule or timetable may negate the primary objective of protecting children from being exploited (R 21)" Plea agreement on second indictment. .. On December 22,201 0, defendant entered into a plea agreement under which he agreed to plead guilty to the first count of the indictment, predatory sexual assault against a child, for which he would receive a sentence of 18 years- to-life (R 165-166). Defendant, under oath, admitted having oral sexual contact - the child victim's mouth to his penis - with a child less than thirteen years of age (born July 17, 1996). The victim was an autistic child whom defendant cared for at the DDSO (R 169-170). Defendant was sentenced in accordance with that agreement on February 14,201 1 (R 174-182). Appellate Division affirms.. . The New York Supreme Court, Appellate Division Fourth, Department, affirmed that conviction on November 18,201 1 (see People v DeProspero, 9 1 AD3 39 [4th Dept. 201 11). That court observed that "[u]nbelcnownst to the Assistant District Attorney (ADA) . . . the property seized from defendant in May 2009 was not promptly subjected to a full forensic examination by the State Police Crime Laboratory. Thus, mistakenly believing that the evidence against defendant was limited to the single image of child pornography discovered during execution of the search warrant, and apparently concerned about speedy trial issues, the ADA offered defendant a sentence promise of six months in jail and 10 years of probation" (A3). The court found that the May 5, 2009 search warrant (the initial search) which allowed the seizure of defendant's computer and peripheral media was based upon probable cause and was not overbroad (A5). Defendant does not contest that finding here. The Appellate Division also found, in what it noted was a "novel issue," that the second search - in January 20 10 - prompted by defendant's request for return of the property was also lawful and that County Court properly denied suppression of the additional evidence discovered at that time (leading to Indictment I20 10-3 15). The court ruled that neither the warrant nor the Fourth Amendment impose specific deadlines upon the prosecution in terms of a "time limit in which a computer may undergo a government forensic examination after it has been seized pursuant to a search warrant" (citing United States v Hernandez, 183 FSupp2d 468,480 [US Dist Ct Puerto Rico 2002]), noting that the Fourth - Amendment only requires that "the subsequent search of the computer be made within a reasonable time" (citing United States v Mutschelhxaus, 564 FSupp2d 1072,1076 [US Dist Ct ND 20081, affd 592 F3d 826 [2008]). And, the court held that the search of the evidence in this case took place in a "reasonable time." The court below also held that defendant was not entitled to an immediate return of his "property" after sentencing on his initial, 2009 conviction. Police, the court stated, have an obligation to search defendant's property for contraband before returning it to him (DeProspero, 91 AD3d at 45-46, citing United States v Jeffers, 342 US 48, 54 [1951]; Unitedstates v LaFatch, 565 F2d 81, 83 [6th Cir. 19771; cert denied 435 US 971 [1977]; and Matter of Sea Lar Trading Co. v Michael, 94 AD2d 309,3 15-3 16 [lst Dept. 19831, appeal dismissed 60 NY2d 860 [1983]). POINT I The inspection of digital media seized pursuant to a lawful judicial order was proper. A. County Court issued a lawful search warrant May 4,2009. New Yorlc State Police Investigator Todd Grant detected defendant's use of a peer-to-peer file-sharing network to obtain child pornography sometime between February 18,2009 and March 3,2009 and initiated an investigation. Oneida County Court Judge Hon. Michael L. Dwyer issued a search warrant, dated May 4, 2009, for defendant's residence and various computers and items of digital media based upon information gathered by Grant in that investigation. County Court's search warrant authorized the seizure of equipment including computers, external and internal hard drives, lceyboards, scanners, digital cameras and their internal or external storage media (R 8). The warrant further authorized law enforcement to "retain said property for the purpose of further analysis and examination." No deadline for such examination is stated in the warrant, and none is implied in law. Importantly, defendant does not contest the validity of this seizure (the original search and seizure occurring May 5,2009) and it is not the subject of this appeal. Following the completion of a six-month term in the county jail on his first conviction for possessing a single image of child pornography, defendant requested that his seized property be returned to him. Being of the misimpression that the seized digital media had been forensically examined and could be cleared for return, the prosecutor began to make arrangements to do so. Upon learning that he was wrong and that much of the digital media seized had never been thoroughly inspected by forensic experts for the presence of contraband, the prosecutor requested that such an examination be undertaken before the property was returned. The property in question remained in the custody of the law enforcement department that had seized it pursuant to a lawful search warrant and, therefore, this additional review was lawful, the prosecution believed. Importantly, this search was - and the record clearly supports this - motivated solely by the interest in ensuring that no contraband was returned or reintroduced to the public. Defendant argued that instead of being held lawfully it was now held unlawfully. Defendant postulates, without precedential support, that the lawful, warrant-authorized seizure simply wore out or expired. Defendant would have this Court fashion a new rule that mystically restores defendant's expectation of privacy in contraband seized pursuant to a lawful warrant to his pre-seizure status immediately after conviction. Defendant further seelts to blur the longstanding differentiation courts have made between the right to return of property once it is no longer needed by the government in a criminal proceeding and the obligation of the government not to return contraband to any individual. These are dangerous rules defendant urges this Court to adopt and, for the legal and policy reasons that follow, the People strongly urge the Court to reject this proposition. The search here of a piece of digital media that could reasonably be believed to contain contraband can be favorably compared to the seizure and search of cocaine stored in Ziploc baggies. The investigators involved in this case have extensive experience and training in the nature of computers and the habits of child pornographers. Lilcewise, narcotics officers are similarly trained and experienced in their field of expertise. Based upon that training and experience, the State Police investigator handling this investigation assembled probable cause to believe that per se contraband - child pornography - would be located "inside" one of a number of possible digital storage devices. He lcnew what these devices might loolc like and lcnew that these digital images were easily ported from one location to another. Lilcewise, the narcotics investigator lcnows the most common means of storing, packaging and selling cocaine. He or she lmows its appearance and the tell-tale signs of narcotic transactions. Warrants authorizing seizures for both investigators would be built upon probable cause. Upon initial seizure, a narcotic officer would subject the suspected cocaine to initial field testing to confirm his or her suspicions. This, however, would not be the full extent of forensic examination necessary to prove, beyond a reasonable doubt, that what the defendant possessed was cocaine. The seized contraband would be transmitted to the State Police laboratory for further analysis and testing to verify its contents and weight. Likewise, the computers and other digital media were transported to the State Police laboratory for further analysis and testing to verify their contents. Bacltlogged forensic examiners at the State Police laboratory, in both computer forensics and narcotics testing, prioritize their work to ensure that those cases moving forward to trial - where admissible trial evidence is required - are handled in a timely manner. Not every piece of evidence transmitted to the lab gets the same full treatment. Yet, lawhlly, every piece of evidence there could get that treatment. That is the principle that must be reaffirmed here. B. Law enforcement cannot return contraband to any individiual. Defendant fashions an argument that he had the right to return of his property by relying on a line of "pure" or non-contraband property cases. These very cases, however, have long aclcnowledged the different treatment accorded evidence or contraband in a criminal case. Importantly, no reported cases state or imply that conviction and sentence diminish the power of a court over lawfully seized property. This Court should not adopt such a position. New York's statutory scheme for issuance of search warrants and the attendant powers of superior courts is contained in CPL 5 690. The power to seize property and deliver it to the issuing court is contained in CPL 5 690.05. The authority of that superior court to maintain or to delegate custody and control of that evidence emanates from CPL Cj 690.55. At its heart, defendant's argument hinges upon a perversion of the meaning of CPL 8 690.55. Defendant maintains on brief that CPL 5 690.55 impliedly says that "if property is not forfeitable as contraband and is no longer needed as evidence because the criminal proceeding has terminated then the Court must issue an order to dispose of the property by returning it upon demand to the rightful owner" (Def. brief, 6-7). In fact, CPL Cj 690.55 states: (1) Upon receiving property received pursuant to a search warrant, the court must.. .(b) direct that it be held in the custody of the person who applied for the warrant,. .or by the governmental or official agency or department by which.. .such public servant is employed, upon condition that upon order of such court such property be returned thereto or delivered to another court. The statute creates no burden upon the court to proactively issue an order returning property, even if returnable. It creates an opportunity for the court to do so upon proper request by the defendant. No such request was made here. Defendant's presumption that the status of the evidence changes at some point following conviction is speculative and unsupported by caselaw. More importantly here, the status of "per sen contraband never changes. In McClendon v Rosetti, 460 F2d 1 1 1 [2d Cir. 19721, the court determined that New York City's procedures for the return of property following the conclusion of criminal proceedings did not meet due process requirements. In doing so, however, the court clearly distinguished between contraband and other property: Thus we hold 5 435-4.0 of the New Yorls City Administrative Code unconstitutianal as applied to persons from whose possession money or property, other than contraband, has been talsen or obtained, though such money or property was not related to any criminal proceeding, or, if it was so related, such criminal proceedings had been terminated, or if the money or property had been needed as evidence in a criminal proceeding, it was no longer needed for that purpose, as violative of the due process clauses of the fifth and fourteenth amendments. (Id. at 116). Defendant's enthusiasm for this Court's decision in Matter of DeBellis v Property Clerk of City of New York, 79 NY2d 49 [I9921 is lilcewise misplaced. Examining the Second Circuit's decision in McClendon, this Court indicated that: The core principle of the Second Circuit's McClendon decision is that, although the government may seize and hold a citizen's property for a variety of reasons in connection with a criminal or related proceeding, once those proceedings have terminated or it is determined that the property is not related to or is otherwise not needed for those proceedings, due process requires that the property be returned upon demand unless the government can establish a new basis for its - detention. The subject of the detention at issue here is contraband, not property. Courts, including the Fourth Department in its treatment of this case, have long recognized that police have an obligation to search defendant's property for contraband before returning it to him (DeProspero, 91 AD3d at 45-46, citing United States v Jeffers, 342 US 48, 54 [1951]; United States v LaFatch, 565 F2d 81, 83 [6th Cir. 19771; cert denied 435 US 971 [1977]; and Matter of Sea Lar Trading Co. v Michael, 94 AD2d 309, 3 15-3 16 [lst Dept. 19831, appeal dismissed 60 NY2d 860 [1983]), Neither McClendon nor DeBellis has any application to contraband or trial evidence which is in the possession of law enforcement - only to non-contraband property which has been seized but no longer serves any law enforcement purpose. In any event, even DeBellis recognizes that "there may be valid reasons not to release the property until after sentencing.. .the property clerk should not be required to release property.. .until direct appeals have been exhausted." In United States v $490,920 in US. Currency, 91 1 FSupp 720 [SDNY 19961, the Southern District of New York opined that CPL 5 690.55 was "jurisdictional" to the extent that it provides state courts with "in rem" jurisdiction over the property while civil replevin actions are undertaken. That court expressly acknowledged that the Court of Appeals has never directly resolved this question ($490,920 at 725). However, it further adopted the stated position that "property seized pursuant to a search warrant technically remains in the custody of the court, and the District Attorney or property clerk possesses the property only as an officer of the court, subject to the court's direction and disposition (citations omitted)." Importantly, there is nothing in these decisions, or in others cited by defendant, to suggest there is an automatic curtailing of this court power following disposition of criminal charges. Property, or "res," controlled by the court is still subject to the court' s instructions regarding disposition subsequent to a defendant's sentencing. That is precisely why the administrative procedure in New York City for disposition of property by the property clerk absent a court directive exists. Alternately, belief that the subject detained media may contain contraband can qualify as a new basis for its detention. In United States v Harrell, 530 F3d 1051, [9th Cir. 20081, the court noted that when a defendant seelts the return of property at the conclusion of criminal proceedings, "[tlhe government must justify its continued possession of the property by demonstrating that it is contraband." The distinguishing fact here is simply that while a digital media storage device itself is not contraband per se, its contents may be (and in this case clearly were) contraband per se. Sound public policy concerns dictate that law enforcement fulfill their obligation not to return contraband to any individual. Put another way, once all criminal proceedings involving confiscated property have terminated and a demand for the property has been made, a property clerk must turn over to a claimant any such property that is not "per se contraband" (United States v Farrell, 606 F2d 1341[DC Cir. 19791). The Farrell court further clarified that contraband is (are), "'objects the possession of which, without more, constitutes a crime' " (Farrell, 606 F2d at 1344, quoting One 1958 Plymouth Sedan v. Pennsylvania, 380 US 693, 699 [1965]), unless further detention can be justified by a new predicate, such as a forfeiture action or further criminal proceedings (Matter of De Bellis v Property Clerk of City of New York, 79 NY2d 49, 58 [1992]). POINT I1 The Constitution imposes no deadline for the forensic examination of evidence seized lawfully. The Fourth Amendment'to the United States Constitution grew out of the colonial opposition to British intrusions into the homes of American colonists. In "A List of Infringements and Violations of Rights" written by a group of Bostonians in 1772, they complained specifically that "our houses and even our bed chambers are exposed to be ransacked, our boxes, chests, and trunks broke open, ravaged and plundered by wretches, whom no prudent man would venture to employ even as menial servants" (Warden v Hayden, 3 87 US 294 [ 1 9671) (Douglas, J., dissenting) (quoting Rutland, The Birth of the Bill of Rights 25 (1955). In arguing for the need for a bill of rights, Patrick Henry said: The officers of Congress may come upon you now, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man laows. They may, unless the general government be restrained by a bill of rights, or some similar restriction, go into your cellars and rooms, and search, ransack, and measure, everything you eat, drink, and wear. They ought to be restrained within proper bounds" Warden v Hayden, 3 87 US 294 [I9671 (Douglas, J., dissenting) (quoting 3 Elliot's Debates 448-449). The Continental Congress also protested British searches, using what were lunown as writs of assistance, objecting to the ability of customs officers "to break open and enter houses without the authority of any civil magistrate founded on legal information." (David E. Steinberg, The Original Understanding of Unreasonable Searches and Seizures, 56 Fla. L. Rev. 105 1, 1068- 1069 [2004]). Judge Learned Hand noted "the real evil aimed at by the Fourth Amendment is the search itself, that invasion of a man's privacy which consists in rummaging about among his effects to secure evidence against him" (US v Poller, 43 F2d 91 1 [CA2 19301). The guarantees of the Fourth Amendment - embodied in the "reasonableness" clause and in the "warrants" clause - collectively offer these protections. Nothing, however, indicates that after fulfilling the obligations of the warrants clause by obtaining a probable cause-supported search warrant - and here, they were - that the further intent was to limit what investigators do with those objects that were seized after the initial search. Instead, as noted, the Fourth Amendment was aimed at protecting American citizens from "writs of assistance" or general warrant searches during the colonial period, and arbitrary, unsupported or unreasonable searches of "persons, houses, papers, and effects[.]" Once a - warrant, based upon probable cause, is issued by a neutral, detached magistrate, the Fourth Amendment provides no limit on the government's ability to analyze seized documents or computers. A. Police conduct justified under "reasonableness clause" analysis.. . The touchstone of the Fourth Amendment, courts have regularly reminded us, is reasonableness (Brigham City v Stuart, 547 US 398 [2006], United States v Knights, 534 US 1 12 [200 11). The reasonableness of a search is determined "by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests" (Wyoming v Houghton, 526 US 295,3 00 [1999]). Disregarding, for the sake of this analysis, the fact that law enforcement possessed the property pursuant to a valid search warrant, the police conduct in searching for per se contraband before returning the property to defendant is reasonable conduct. This Court observed, in People v Galak, 80 NY2d 715 [1993], that "(t)he analysis of what constitutes a reasonable . . , search begins with the language of the Fourth Amendment, which protects citizens not from all searches by governmental actors but only from those that are 'unreasonable'. . . . the Supreme Court has held that the reasonableness of a search is calculated by weighing the governmental and societal interests advanced by the search against the individual's right to be free - from arbitrary interference by law enforcement officers (United States v Brignoni- Ponce, 422 US 873, 878 [1975]; see also, South Dakota v Opperman, 428 US 364, 378 [I9761 [Powell, J., concurring]; Colorado v Bertine, 479 US 367, 372 [1987])." The United States Supreme Court held in Katz v United States, 389 US 347 (1967), that a person enjoys Fourth Amendment protection where the person "exhibited an actual (subjective) expectation of privacy and, second, that the expectation (is) one that society is prepared to recognize as 'reasonable"' (Katz, 3 89 US at 3 6 1 [Harlan, J., concurring]). As noted by this Court in People v Weaver, Justice Brandeis wrote in Olrnstead v United States, The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They lcnew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. People v Weaver, 12 NY3d 433,43 8 (2009) (quoting Olmstead v United States, 277 US 43 8 [1928]) (Brandeis, J., dissenting). Yet, once that "right to be let alone" has been overborne by a warrant and a seizure pursuant to a valid search warrant had occurred, that which the founders sought to protect was no longer at issue. Once property has been seized pursuant to a valid warrant, one no longer has a reasonable expectation of privacy under Icatz and one cannot reestablish the "right to be left alone" once overborne by a probable cause warrant. Four decades after Icatz, George Washington University Law School Professor Orin ICerr writes, the meaning of "reasonable expectation of privacy" is still the "central mystery of Fourth Amendment law." In an attempt to divine how the Supreme Court approaches search and seizure analysis, ICerr wrote in the Stanford Law Review that there are four models of Fourth Amendment protection relied upon by the Court: the probabilistic model, focused on "the liltelihood that the subject's information would become laown to others or the police;" the private facts model, focused on "whether the government 's conduct reveals particularly private and personal information deserving of protection;" the positive law model, focused on "whether the government conduct interferes with property rights orother legal standards outside the Fourth Amendment;" and the policy model, focused on "whether the police practice should be regulated by the Fourth Amendment." (Orin S. Icerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 [2007]). The fourth model - Policy - drives much search and seizure litigation, even overlapping other models, ICerr argues. "If the practical consequences of regulating such conduct unnecessarily restrict government investigations given the gain to civil liberties protection, then any expectation of privacy is constitutionally unreasonable," Kerr writes of his policy model. Katz and Kyllo v United States, 533 US 27 [2001], are clear examples of policy model - decision malting, according to Kerr. The policy model involves balancing the interests of civil liberty against the interest in civil society: guaranteeing the latter sometimes requires limited compromise of the former. This is all to say that policy considerations loom large in determining search and seizure issues. Here, policy considerations strongly support the conduct of law enforcement in conducting the search for contraband before returning the property - under either a reasonableness analysis or a warrant analysis. If the analysis is of the validity of a lawfully issued warrant - and the resultant seizure - then the question becomes does the lawfulness of that warrant change somehow following the conclusion of criminal proceedings. No reported caselaw to date purports to create a rule or policy hinting that any arbitrary deadline for completion of analysis of lawfully seized evidence, other than doing so within a "reasonable time." If the analysis is one of the reasonableness of the police conduct - irrespective of the warrant - then policy considerations again dictate that the conduct was reasonable. The minimal intrusion into defendant's possessory rights (given that the property was already in police custody) is far outweighed by the policy considerations of protecting the public against further dissemination of child pornography. To the extent that courts have said forensic examinations should occur within a "reasonable" time, the legislature has created statutes of limitations imposing deadlines within which time prosecutions for most offenses must commence. This already limits the practical time to be considered "reasonable" for the reanalysis or reuse of lawfully seized evidence. State and federal law enforcement authorities collect DNA evidence, gun data, fingerprint evidence, and a variety of other items all of which may have been initially seized pursuant to a lawful search warrant. It flys in the face of established public policy favoring the solving of crime using these evidentiary tools to suddenly limit the scope of analysis of seized evidence, particularly contraband. In addition, courts have regularly rejected challenges to digital evidence discovered on lawfully seized media on the basis of the so-called ten-day rule for execution of a search warrant. Both the Federal Rules of Criminal Procedure (Fed. R. Crim. P. 4 1) and New York Criminal Procedure Law (CPL 5 690.30 [I]) require that a search warrant be executed within ten days of being signed. Various federal courts have rejected attempts to apply that deadline to the search of the actual files contained on a seized computer or other item of digital media. In United States v. Hernandez, 1 83 F. Supp.2d 468,480 (US Dist Ct. PR 2002), a search warrant was obtained on July 30, 2001, and was to be executed by August 8,2001. The defendant's computer and its hard drive were searched on July 3 1,2001. An examination of twenty-six (26) floppy dislts was conducted on September 13,200 1. Although the dislts were retrieved and examined after the - magistrate judge's deadline, they were seized pursuant to a valid search warrant before the imposed deadline. In Hernandez, the court found that the search of the defendant's home took place within the time period designated by the magistrate judge and that "it was perfectly reasonable for the Government to take a longer time to search and inspect the images in the floppy dislts, particularly after already having discovered child pornography in Defendant's hard disk" (id. at 481). The court denied the defendant's motion to suppress the evidence found on the disks. (See also US v Syphers, 296 FSupp2d 50 [US Dist Ct. New Hampshire 20031, cert denied 426 F3 d 46 1 [2003] [ denied defendant's motion to suppress search of computer contents when search was completed seven months after seizure because time frame was not unreasonable and state did not "overstep any constitutional boundaries."]; United States v Gorrell, 360 FSupp2d 48, 55 n 5 [2004] ["The warrant did not limit the amount of time in which the government was required to complete its off-site forensic analysis of the seized items and the courts have not imposed such a prophylactic constraint on law enforcement"]). Further, in United States v Triumph Capital Group, Inc. 21 1 FRD 3 1 (US Dist Ct. Conn. 2002), the court found "the Fourth Amendment [does not] impose any time limitation on the government's forensic examination of the evidence seized" and noted "computer searches are not, and cannot be subject to any rigid limit because they may involve much more information that an ordinary document search, more preparation and a greater degree of care in their execution." So long as the off-site search of a computer was "reasonable under the circumstances" the search does not violate the Fourth Amendment (Triumph Capital Group, Inc. 21 1 F.R.D. at 66 [citing Commonwealth v Ellis, 1999 Mass. Super Lexis 3681). Additionally, the Fourth Amendment "contains no requirements about when the search or seizure is to occur or the duration" (US v Syphers, 426 F3d 461,469 [CAI NH 20051, cert. denied 126 S.Ct. 23 12 [2005] quoting United States v Gerber, 994 F2d 1556, 1559-60 [llth. Cir. 19931). Thus, "[tlhe Fourth Amendment only requires that the subsequent search of the computer be made within a reasonable time" (United States v Mutschelknaus, 564 FSupp2d 1072 [US Dist Ct ND 20081, affd. 592 F3d 826 [2008]). Accepting these tests, here the search of the computer was made within a reasonable time, particularly when considering the implications of not conducting a search prior to returning the computer to defendant. As the Fourth Department noted, returning child pornography to a defendant would constitute a crime (see People v Deprospero, 91 AD3d 39 [4th Dept. 201 11). Terminating the right of law enforcement to search a computer for contraband prior to returning the computer to the defendant would, in effect, open law enforcement to possible prosecution for the same acts they are attempting to prevent. Federal Courts, too, have aclcnowledged that contraband cannot be returned to defendants (see United States v LaFatch, 565 F2d 81, 83 [6th Cir, 19771). Without the complete forensic analysis of this evidence, contraband would have been returned to the defendant in this case. B. The legislature has amended New York's Criminal Procedure Law to provide a mechanism for a defendant to demand forensic DNA testing of evidence seized and held by the government - even years after his conviction - in an effort to demonstrate actual innocence. CPL f j 440.10 (1 -a) [Eff. Oct. 1,20 121 will provide: (a)(l) Where the defendant's motion requests the performance of a forensic DNA test on specified evidence, and upon the court's determination that any evidence containing deoxyribonucleic acid ("DNA") was secured in connection with the trial resulting in the judgment, the court shall grant the application for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant. As originally enacted, this provision "gave persons convicted before that date the right to make a motion for DNA testing of evidence seized in connection with their crimes. This apparently represented a legislative determination that until that date DNA evidence may be deemed evidence "which could not have been produced by the defendant at the trial even with due diligence on his part" (see CPL 5 440.10 [1 (g)]) [Preiser, Commentary CPL f j 440.101. The fact that such legislation exists implicitly aclmowledges that the government has the authority to hold seized evidence or contraband well beyond the date of conviction, and that it remains subject to the order of the controlling court. C. Blood, subsequent testing and People v King. People v Icing, 232 AD2d 11 1 [2d Dept. 19971, Iv, denied 91 NY2d 875 [I9971 established law enforcement's right to conduct subsequent searches of seized blood for DNA evidence. The present case should stand for the same principle in the digital realm. The Second Department held that a blood sample, properly secured via a lawful judicial order, from a suspect in one rape, could be used for testing in another unrelated case. The county court there had specifically noted "(t)his Court is unaware of, and the defendant does not cite, any authority which supports the proposition that probable cause must be shown anew for each subsequent use to which a blood sample might be put once it has been lawfully talcen" (1 61 Misc2d 448 [Westchester Cty Ct. 19941). This very much supports the proposition the People here advance - there is no such authority and this Court should not create precedent stating that such a showing is necessary. The unique natures of digital evidence, and the attendant difficulties in examining its "containers" and forensically procuring it for trial, have been acknowledged by the courts. The search warrant here was drawn in such a manner as to allow seizure of any digital media where contraband could have been secreted. The particularity clause of the Fourth Amendment was designed to prohibit general searches, and accordingly requires that a search warrant limit its "authorization to search to the specific areas and things for which there is probable cause to search" (Maryland v Garrison, 480 US 79, 84 [1987]). "The standard used to gauge the particularity requirement of a search warrant is one of 'practical accuracy' rather than a hypertechnical one" (United States v Cartier, 543F3d 442, 447 [8th Cir. 20081). Searching for digital evidence itself involves a different level of particularity than traditional searches for physical evidence. George Washington University Law School Professor Orin Icerr points out, "[iln the physical world, different spatial regions are used for different purposes. This allows the police to malte educated guesses as to where evidence may or may not be found ..." (See Orin S. Kerr, Digital Evidence and the New Criminal Procedure, 105 Colum. L. Rev. 279, 303 [2005]). In the physical world, one might look for an incriminating letter in a file folder or a desk drawer. Drugs or guns might be stored in shoeboxes or bedside tables. The money might be under the mattress, In the computer context, however, the location of evidence does not necessarily depend on the character of the evidence itself. Information stored on a computer is represented by "zeros and ones of electricity (Id. at 284)," malting the format and location of any stored information flexible, and difficult to predict. Investigators searching a suspect's house for stolen stereo equipment can logically rule out the medicine cabinet as a possible location, but anticipating the location of electronic evidence is inherently more difficult because "electronic evidence can be located anywhere . . . . [Tlhe investigator can never rule out a particular part of the hard drive ex ante (Id. at 304)" POINT I11 Law enforcement, Prosecutors and the Courts have a common-law obligation to prevent the return of contraband to any individual. Law enforcement has a long recognized common-law privilege to handle and examine contraband during the course of a criminal prosecution. Without such a privilege, the mere possession of per se contraband - even for purposes of laboratory analysis or forensic examination - would be criminal. No other persons enjoy such a privilege and the law prohibits law enforcement from passing contraband on to anyone. Even where evidence is illegally seized, when it is contraband, the owner is not entitled to its return (United States v Jeffers, 342 US 48, 72 [I95 11). A distinction has been made between confiscated property which is per se contraband and that which is merely "derivative contraband." The former category includes such patently illegal items as narcotics, gambling apparatus and the paraphernalia used to make bootleg alcohol. In the latter category are such ostensibly innocent items as cash or an otherwise legal automobile which happened to have been used for illegal purposes. In One 1958 Plymouth Sedan v Pennsylvania, 380 US 693, 699 (1965), the Supreme Court announced the following test: If mere possession of the contraband constitutes a crime, then repossession of such per se contraband would subject the possessor to additional criminal penalties. Return of such contraband would obviously frustrate the express public policy against the possession of such objects. In the typical narcotics prosecution, a glassine envelope (empty) with trace evidence of crack may not be contraband per se; nor is the small glass mirror covered with cocaine or the glass tube containing crack cocaine residue. Yet these items are not returnable to defendant upon demand. They, like the digital media here, are containers that facilitate movement and manipulation of the actual contraband and are so intricately interwoven therewith that it is impossible to separate them from the contraband. A. What is contraband? Contraband is clearly defined by law as "property whose simple possession is a crime, for example, counterfeit coin, narcotics, a machine gun, or an unlicensed pistol (See Carroll v United States, 267 US 132 [1925]). Such contraband is malum per se, and need not be returned once seized by the state (Sullivan v Grupposo, 77 Misc 2d 833, 835 [Civ. Ct. 19741). Of course, other cases have stated that chattel which is not contraband "per se," such as stolen property, - may not be contraband and subject to the same restrictions. Here, the question is whether a piece of digital media which could (and did) contain child pornography fell under the former rule or the latter. The court below properly found no unreasonable imposition upon defendant's constitutional rights by inspecting the media - and finding secreted child pornography - to insure that contraband per se was not returned to him. Public policy dictates this decision be upheld. Those of a certain age will recall the era before computers and the internet. Child pornography existed then too. The most prevalent means of obtaining child pornography then was via the mail. As described in Jacobsen v United States, 503 US 540 [I99 11, collectors of pornography would await delivery of their catalogs from afar - often from overseas. When the Child Protection Act of 1984 outlawed the use of the mail for delivery of such material, such delivery became much more surreptitious. Pedophiles would have to eagerly await the "plain manila envelope" bearing a Swiss postmark that still arrived by mail - well aware of what was inside. Hypothetically, let us say a warrant was issued following an investigation into the behavior of a defendant of that era. The search yields dozens of magazines containing child pornographic images, many in German - indicating a possibly Swiss origin. Also seized is a single, sealed plain manila envelope the size of a magazine, addressed to defendant and baring a Swiss postmark. That defendant - could never have successfully made a straight-faced demand for return of that "plain manila envelope" seized during the course of his arrest, as property, not contraband. The Micro SD digital media card in Mr. DeProspero's camera is simply today's functional equivalent of that "plain manila envelope." In the digital age, it is the preferred means of both production and storage of child pornography - easily hidden and readily accessible, yet non-descript to the layperson. B. The CPL and the return of property, not contraband, The Criminal Procedure Law provides that property seized pursuant to a search warrant remains in the custody of the court. The District Attorney or property clerk possesses such property only as an officer of the court, subject to the court's direction and disposition (Simpson v St. John, 48 Sicltels 363 [1883]; 1973, Opn A.G. 239,240; Wise v Henkel, 220 US 556 [I91 11). Once items in an individual's possession have been lawhlly seized and searched, subsequent searches of those items, so long as they remain in legitimate uninterrupted possession of the police, may be conducted without a warrant, since once items have been searched, owner's expectation of privacy therein is significantly reduced (United States v Guevem, 586 FSupp 760 [EDNY 19841). County Court here complied with the Criminal Procedure Law in that it directed that the property be retained by police for analysis after seizure. There was no motion brought for suppression during the course of the proceedings leading to the first plea of guilty. Therefore, the continued possession of the property was lawful (see CPL 5 690.55). The statute, likewise, contains no sunset clause ending the court's stated authority by the entry of a plea of guilty. Seeking an order of County Court returning the property was the only legal avenue available to defendant. An action for replevin is unavailable. Peter Preiser summarizes in his commentary to CPL 5 690.55 that, "(w)here improperly seized property belongs to a defendant who has made a suppression motion, the suppression court may order it's return at termination of the motion, provided it is not otherwise subject to lawful retention or required for prosecution of the case (CPL 5 710,7O)(emphasis added). If not returned at that point the proper procedure would be a motion to the court that issued the warrant for return of the property seized (Moss v Spitzer, 19 AD3d 599 [2d Dept. 20051 [judge in a proceeding is the proper respondent in an action for the return of seized property]; see also DXS Video Tapes, Inc. v Halay, 239 AD2d 205 [lst Dept. 19971). And, if the case has been terminated, the owner may bring a civil action against the custodian for replevin (Boyle v Kelley, 42 NY2d 88 [1977]; cf., SSC Corp. v State of N. Y. Organized Crime Task Force, 128 AD2d 860 [2d Dept. 1987])." Here, the property in question was not (a) improperly seized; was not (b) the subject of any suppression motion or order (prior to its discovery); and was not (c) the subject of any civil replevin action. Nothing about the facts of this case indicates that existing channels for return of defendant's property, even if properly returnable, were pursued. C. Return of "Property." Upon receiving property seized pursuant to a search warrant, County Court must either: (1) retain it in the custody of the court pending further disposition pursuant to statute or some other provision of law (CPL 5 690.55 [l][a]) or (2) direct that it be held in the custody of the person who applied for the warrant, or of the police officer who executed it, or of the governmental or official agency or department by which the public servant is employed, upon condition that upon order of such court the property be returned thereto or delivered to another court (CPL 8 690.55 [I]). Here, County Court explicitly stated in its search warrant "(t)he court will further authorize the police agency to retain said property for the purpose of further analysis and examination" (R 8). Defendant's then-attorney Frank Mellace never sought an order from County Court regarding disposition of the property. Rather, he requested its return by contacting the district attorney's office directly. Even after being informed by the prosecutor that, prior to any release the property would have to be examined for any potential contraband, Mellace still did not seek an order from the court. It was defendant who failed to invoke the remedy available to him under the criminal procedure law. He cannot, then, complain that he was prejudiced by that choice. Conclusion In accordance with the above, the People respectfully request that the judgment of conviction and the ruling of the Appellate Division, Fourth Department, be unanimously affirmed. Respectfully submitted, SCOTT D. MCNAMARA, ESQ. Oneida County District Attorney By: Steven G. Cox, Esq. Assistant District Attorney, of Counsel 235 Elizabeth Street Utica, New York 13 5 0 1 (315) 798-5766 (315) 798-5582 (FACSIMILE) DATE: 6/2 < / b / ~