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Question

Situation: All charges against me were "DISMISSED"...yet the Judge made the decision not to return any of the items, which the police seized from my home after the arrest. The items include a lifetime gun collection, guns owned by my father and son, bow and arrows, ammunition and storage items. I was told by my lawyer not to worry when I asked if I should have my guns transferred to someone right after being arrested. Now the Judge has ordered all items sold at auction with the proceeds going to me. WHY this ruling when I can go right out and purchase any gun or bow I want...AND...did my attorney advise me correctly when I asked whether I should transfer the guns right after I was arrested. My attorney is now stating she had no control over the issue. Please advise.

Submitted: 17 days and 18 hours ago.
Category: Legal
Value: $18
Status: CLOSED
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Optional Information

State/Country relating to Question: Connecticut

Already Tried:
Researching issue on-line and discussion with civil attorney.

Posted by FranL 17 days and 18 hours ago.

Info Request

This sounds fairly strange. Fill in a couple of blanks here.

Were the guns seized and held as evidence?
Was your case dismissed on the merits or because the complainant dropped the charges or as a result of some other technicality?

17 days and 5 hours ago.

Reply

FranL: To the best of my knowledge the guns and other items were seized as evidence. Why the police seized "Archery" equipment is unbelievable. I requested that the archery equipment be returned so that I could hunt with them in Connecticut. My attorney advised there was nothing in the statutes that prohibited me from archery hunting and she went so far as to confirm this with a detective she knew. I made the request for the return of items and the police provided me with the "Receipt for seized property and advisement of rights-seized property". I was to make a formal request for the return of whatever property I wanted returned and then the "court" would decide. I brought this to the attention of my attorney, who asked if I could wait until the hearing, where she'd then make the request for "ALL" property to be returned to me. Needless to say, the judge made the decision to not return any of my property, but have it SOLD at auction. It was as though the judge, prosecutor and even my attorney had found me guilty of all charges. It was a new judge and prosecutor, but still it was as though the "alleged" charges were TRUE and the judge was ticked off I was getting off on the charges. In regard to the charges being dropped, I was required to complete a 9-week education program and then all charges against me would be "dismissed". I completed and the charges were dismissed accordingly. I need to know if the judge is within his rights to do this and did my own attorney error by my not requesting the transfer of firearms initially or to have the archery equipment returned prior to my hearing date. My next step is to contact the NRA for guidance upon hearing what you have to say about my situation. Thanks Greg.

Posted by FranL 17 days and 5 hours ago.

Answer

Good morning Greg,

Thanks for the information. Connecticut procedure is a bit different than New York's, but the outcome is the same.

Your dismissal was not on the merits of the case. That is, although you can honestly say on job applications and so forth, that you have never been convicted of a crime, the fact is that you entered a plea and served a sentence. If you had gone to trial and been found not guilty of the charges against you, you would be entitled to the evidence back. However, from the state's point of view, the only reason that you don't have a conviction right now is that they elected to do you a favor and let you keep your record clean. But they are not about to do you two favors and give you back the evidence of your crime. They have earmarked them for forefeiture, and it's surprising that they are even willing to allow you to have the value of the goods, Normally you would have to hire a civil attorney and pay him to represent you at a hearing to try to prevent the sale. (If you get a notice of forefeiture, you can still do this).

I know it sounds unfair. I've seen this happen with cars, computers and other high-tech appliances, and even with houses, but when the property is the fruit or the means of the crime, it's lawful. Under state and federal law, any property or assets believed to have been acquired through illegal or used for illegal activity can be seized by the government. This is a link to the Connecticut Federal provisions, but it makes my point.

As far as your attorney is concerned, I don't know that she could have anticipated that the state would swoop down after your arrest and remove your property. She may have assumed it would have been taken at the same time you were arrested had they been interested in taking anything at all. You would have a better sense of that. But once it went into the hands of the state and became evidence, it would not have been returned to you before the close of the case, unless, as happened, they have ordered the forfeiture of your goods.

_____

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.

Edited by FranL on 11/4/2009 at 5:37 PM

17 days and 2 hours ago.

Reply

Fran, just to follow up, before I accept the charges, you mentioned the "merits" of the case. When the "merits" of the case are "false" / "incorrect" this becomes all the more difficult to swallow. My wife approachd the court and admitted that she had made a terrible "mistake". She "misunderstood" my handling of the firearm at the time and wanted all charges against me dropped. I was told that had she not gone and admitted this, I wouldn't have been made the offer to attend a 9-week course and have my case dismissed. I doubt, based on the "merits" of the case, I would have lost. It was the police officers involved who advised me to get my guns transferred to someone else right after I was arrested. Is there any item they cannot seize??? My attorney, at that time, told me there was no need for me to transfer my guns and for me not to worry about them. She told me that after completing the 9-week program, all charges would be dismissed, my record would be clear, my guns and permit returned as well as my "mugshot" would be removed. Needless to say that all didn't happen. I guess it's more difficult to believe that an individual is "innocent until proven guility". Thanks for your information and take care. Greg.

Accepted Answer

A decision on the "merits of the case has a specific meaning in law. It means a finding of not guilty based on the applicable law as applied to the facts of the case -- not a dismissal because the complainant has changed her mind about prosecuting, nor a dismissal because the state agreed to deferred adjudication or a diversion program, nor a dismissal on a legal technicality (speedy trial grounds for example). A finding of not guilty by a jury who heard all the evidence is a decision on the merits.

Now that I see that this was originally charged as a domestic matter, I'm not surprised that the police came back for the guns. If you or your wife made the police aware that there was more than one weapon in the house, it would have been a safe bet that they'd come back for them under the circumstances. Domestic cases are in the limelight and if there's going to be a judgment call, it's made in favor of the complainant, even over the complainant's objections.

Sorry that I can't tell you that the state wasn't within its rights. If you're a collector, this has got to hurt on a whole separate level. But they can do it.

_____

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.

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Expert: FranL
Pos. Feedback: 100.0 %
Accepts: 
Answered: 11/4/2009

Attorney

17 years of NYC criminal litigation experience.

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