By: Joe O’Hara and Toni Natalie
According to a story in Monday’s Wall Street Journal, the New York City Police Department (NYCPD) has entered into a settlement regarding a lawsuit that was brought by a public-defender group, the Bronx Defenders, and the Boies Schiller Flexner LLP law firm over the NYPD’s policy of not returning property that was seized during the course of criminal investigations. Per the original complaint in that case, it was alleged that “Each year thousands of New Yorkers lose their cash, phones, and other personal property because of the City’s unlawful policy and practice.”
Prior to the lawsuit, the NYCPD had been retaining seized cash and property even when the related charges were dropped or dismissed. In fiscal year 2015, for example, the NYCPD generated $7 million in revenue from unclaimed cash and the sale of seized property.
The New York City case is very similar to the 2-year battle that we recently waged to get back the computers and other personal property that were seized from us by the New York State Police back in October 2013. Those seizures were part of the “criminal computer trespass” charges that Albany County brought against both of us in 2014 – and that were dismissed via Adjournment in Contemplation of Dismissal (ACOD) agreements that we entered into in February 2016. The case was prosecuted by Special District Attorney Holly A. Trexler who previously served as an Assistant District Attorney in Albany County under David Soares – and who now serves as a judge in Albany City Court.
As soon as the ACOD agreements were signed, we began asking to have our computers and other personal property returned. Ms. Trexler, however, refused to do so – and, in a letter to the then-presiding judge, Stephen W. Herrick, dated July 27, 2016, she vowed that we would never get our property back: “We have no intention of returning any of the materials that were the focus of the investigation. Additionally, the State Police have advised me that, before the electronics can be returned, all hard drives that contain the complainant’s information will have to be wiped clean”. (The “complainants” included NXIVM, Keith Raniere, Clare Bronfman, Nancy Salzman and several other High Rank members of the cult).
The battle over the return of our seized computers and other personal property raged on until November 20, 2017 – when the then-presiding judge, Roger D. McDonough, ordered the State Police to return everything to us “in their current form”. Even then, the judge delayed the return for an additional 45-days – which we interpreted as an invitation for NXIVM to intervene in our effort to get back our property (For reasons that we still do not understand, both the State Police and Judge McDonough started sending copies of all the filings in the case to NXIVM’s attorneys).
Not surprisingly, NXIVM’s attorney, Paul DerOhannesian, did, in fact, try to interject the cult into this process – and even went so far as to ask Judge McDonough to order us to return the computers and other personal property that we had finally gotten back from the State Police. Instead of simply rejecting that request, Judge McDonough informed Mr. DerOhannesian that “…any re-opening of the case would require formal motion practice citing specific case law or statutory justification for the re-opening of a criminal matter.”
At this point, we are considering whether to bring a lawsuit against the State Police and Albany County over the delay in returning our computers and other personal property. Whether – and how – we proceed will depend, in large part, on the outcome of the forensic analysis that is currently being done on our computers to determine what happened to them after they were seized by the State Police in October 2013 and whether they had any malware or spyware installed on them prior to – or after – that date. Once we have those results, we’ll be able to determine what type of claims to pursue against the State Police, Albany County, and the individuals who kept us from getting our property back on a timely basis.
We are also waiting for the State Police to respond to a request for a copy of its “policy” regarding the return of seized material (A FOIL request for a copy of that policy was submitted several months ago). In this regard, Senior Investigator Rodger Kirsopp has indicated that the State Police has a policy that precludes it from returning seized computers unless they are first “wiped clean”. If the State Police does, in fact, have such a policy – which we highly doubt – then it will be challenged on the grounds that it is in violation of the ACOD agreements we signed, several sections of the New York State Penal Law, and our constitutional rights.
We are actively looking for a law firm to handle our claims against, among others, the State Police and Albany County. As might be expected, however, it’s difficult to find law firms in the Albany area that are willing to sue those two parties – which is why we’re primarily looking for someone outside the area to take on the case. Hopefully, someone will read this story and contact us.