Legal Question in Civil Litigation in New York

I drafted this and need an attorney to read and tell me if the way I am attacking sounds strange

PROPERTY CLERK, NEW YORK CITY

POLICE DEPARTMENT,

Plaintiff,

Reply to Verified Reply

against

Index 10/401697

DIRK MIRANDA

Defendant

Defendant answers the Plaintiff�s reply to Defendant�s Answer to Complaint, Motion to Dismiss, And in the Alternative Affrimative Defenses as follows

1. Denies allegations in paragraph 1 that plaintiff should use the defendant�s plea of guilt to violating New York Penal Law Section 265.01 (Criminal Possession of a Weapon in the Fourth Degree) as basis for a forthcoming motion for Summary Judgement in that the Defendant was the person who was guilty of the crime not the subject vehicle and also that pursuant to vol. 12 titl 38 chap 12 RCNY state that the Voucher be given to defendant in a timely manner to acknowledge his rights which Plaintiff failed to do.

2. Denies allegations in paragraph 2 under Section 1311a of the New York Civil Practice Law and Rules (1311a NYCPLR) Forfeiture actions does state as follows

(a) Actions relating to post-conviction forfeiture crimes. An action relating to a post-conviction forfeiture crime must be grounded upon a �conviction of a felony� defined in subdivision five of section 1310 of this article, or upon criminal activity arising from a common scheme or plan of which such a conviction is a part, or upon a count of an indictment or information alleging a felony which was dismissed at the time of a plea of guilty to a felony in satisfaction of such count. �A court may not grant forfeiture until such conviction has occurred.�

Subdivision five of section 1310 is

"Post-conviction forfeiture crime" means any �felony� defined in the penal law or any other chapter of the consolidated laws of the state.

3. Does not deny paragraph 3

4. Admits to the allegation in paragraph 4 about the vehicle release form was mailed to defendant but denies the allegations used in paragraph 4 suggesting that because the property release states that it is �not to be construed as a statement limiting the department�s rights to further pursue forfeiture of this vehicle� that the plaintiff can disregard the statement on the Property Release stating �A district Attorney�s release is still required for the release of vehicles being held as evidence in the associated criminal matter and may be obtained only from the district attorney�s office� that a general understanding from the DA of the criminal proceeding can be concluded that the releasing of the subject vehicle is to be no longer considered evidence in that the Plaintiff is disregarding the DA�s order to release the vehicle as evidence or as any sort of threat to society.

5. Neither admits nor denies paragraph 5.

6. Neither admits or denies administrative code 14-140. Does not deny plaintiff cannot find a claim in vol 12 titl 38 chap 12 but denies that the plaintiff�s claims can out way the weight of constitutional procedural breach by plaintiff�s institution.

Vol 12 titl 38 chap12-34c

Says (c) if the request for a release is accompanied by the documents specified in subdivision b hereof, the district attorney shall if property is no longer needed as evidence, grant a release no more than fifteen days after receipt of the request. If the property is or may be needed as evidence, the district attorney shall follow the procedures hereinafter set forth.

Based on this statement it can be assumed that with the release of the subject vehicle by the DA that the DA does not regard subject vehicle as a threat to society.

7. Admits to paragraph 7.

Defendant request the court dismiss the case because:

1) That Plaintiff�s case be dismissed based on actions from the very beginning of this case that Rules and Procedures also not only in regards to many different reasons in vol. 12 titl. 38 chapter 12 RCNY but also pursuant to Krimstock vs. Kelly were denied to defendant which tarnishes Plaintiff�s success in case. Also that the Plaintiff is going for a civil forfeiture action based on subject vehicle being an instrumentality of a crime but the defendant was living in vehicle and homeless which resulted in the weapon having no were else to be placed other than defendant�s home which was vehicle at that time. Also under 2nd amendment rights defendant has a right to bear arms in his place of residence.

2) Also that Subdivision 4a of section 1311 of the New York Civil Practice Law and Rules (1311 sub 4a NYCPLR) regarding Forfeiture Actions states

4. The court in which a forfeiture action is pending may dismiss said action in the interests of justice upon its own motion or upon an application as provided for herein.

(a) At any time during the pendency of a forfeiture action, the claiming authority who instituted the action, or a defendant may (i) apply for an order dismissing the complaint and terminating the forfeiture action in the interest of justice,

Plaintiff denied defendant the rights to procedures granted by

Vol 12 titl 38 chapter12-32 Vouchering procedures in Rules of the City of New York(Vol 12 titl 38 chap 12-32a RCNY) that states

The police department and the district attorney, .., of each of the five counties of the city have implemented the following procedures governing the taking or obtaining of non-contraband property from a person�s possession at the time of arrest:

the police shall make an inventory of such property and shall issue a voucher, which shall be given to the person as a receipt for items taken.

The person shall be given an opportunity to examine the voucher, and if such person finds itemized list to be correct, such person may sign the voucher to acknowledge that it contains a complete list of property taken�.

The person must be informed that if he or she believs any additional non contraband property was taken from his or her person or from his or her possession, or if he or she believes that property was erroneously vouchered to him or her, he or she may so indicate on the voucher. The arresting officer may sign the voucher indicating his or her concurrence with the list of items or any disagreement.

A person is entitled to receive a voucher at the time of arrest for property taken or obtained from his or her person or possession, and the other procedures set forth in these rules shall apply, regardless of whether property has been denominated by the police department as � arrest evidence� or otherwise, and regardless of whether the arrest is prior to , simultaneous with, or subsequent to the taking or obtaining of the property.

The failure to provide the arrestee a voucher, in pursuant to Krimstock vs. Kelly and vol 12 titl 38 chap 12-32, establishes that there were material issues about whether due process procedures were followed.

The constitutional deprivation, inadequate notice of post-deprivation state remedies, did not require intent, as the lack of notice itself gave rise to constitutional violation.

In the United States, criminal prosecutions and civil cases are generally governed by explicit guarantees of procedural rights under the Bill of Rights. Most of these rights have been incorporated under the Fourteenth Amendment to the States. Among those rights is the constitutional right to procedural due process, which has been broadly construed to protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived of "life, liberty, or property" without a fair opportunity to affect the judgment or result.

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