New York Criminal Lawyer Blog
A New York Drug Crime Lawyer said that on June 9, 20009, police officers searched the apartment of a couple by virtue of a search warrant and seized drug paraphernalia, a .32 caliber hand gun, cocaine residue and the amount of $38,410.00.
The police arrested and charged the couple: the man was charged with criminal possession of a controlled substance in the seventh degree; while his wife was charged with felony possession of a weapon.
The woman entered a plea bargain. A New York Drug Possession Lawyer said she agreed to plead guilty to the lesser crime of Disorderly Conduct instead of being tried and possibly being convicted of the charge of felony possession of a weapon.
The County of Nassau commenced an action to forfeit the sum of $38,410.00 which was seized from the couple. A Nassau County Drug Possession Lawyer said the man now seeks to dismiss the forfeiture action on the ground that the case cannot be heard and tried without the presence of his wife who is a necessary party to the forfeiture case. The man and the woman filed a sworn affidavit claiming that the sum was their marital property and that it was the wife’s inheritance from her father’s estate.
The County of Nassau did not dispute that the woman had an interest in the money sought to be forfeited in the action but they dispute that she is a necessary party. They instead contend that she is a mere material witness to the proceedings who can testify as to the ownership of the funds.
The only question before the Court is whether or not the forfeiture case should be dismissed seeing that the wife has not been joined as a party to the case.
The Court held that a necessary party is one who might be inequitable affected by a judgment in the action. The reason why a necessary party must be compulsorily joined in an action is to protect their rights from being jeopardized if they have a material interest in the subject matter of the case.
The wife has a material interest in the money sought to be forfeited by the County. She claims that the money was her inheritance from her father’s estate and that it is a property of their marriage. It is clear that her material interest in the cash sought to be forfeited has been alleged. Her interest is that of owner or part-owner of the money sought to be forfeited.
A Queens Drug Possession Lawyer said the only question that must now be addressed is whether or not the failure of the County to join the wife as a necessary part is ground for dismissal of this action. The Court ruled that the case should not be dismissed.
The man contends that the case should be dismissed because the 120-day statute of limitation to commence an action against his wife has already expired. Thus, the wife can no longer be joined as a party because the action against her is time-barred.
The Court disagreed with the defendant. There is already an action that has been brought within the statute of limitations. The joining of the wife as a necessary party is not the commencement of a new action. She will only be brought under the jurisdiction of the court which has already taken cognizance of the case which is already being heard.
The Court then ruled that the wife may be joined as a defendant and if she so desires, she may assert the defense that the action against her is barred by the statute of limitations. This defense that the action against the wife is time-barred belongs properly to the wife and it cannot be asserted by the husband for and in her behalf.
The Court ordered the plaintiff County to serve the wife with supplemental summons and a copy of the complaint, a copy of this Order within twenty days. The wife is further given a period of 30 days from receipt of the summons and copies of the complaint and this Order to file her answer.
Have you been arrested for criminal possession of a weapon? Have any of your personal monies been seized as well? An experienced lawyer will tell you that you have the right to contest the seizure of monies seized in connection with the seizure of illegal weapons found in your possession. A skilled lawyer will also advice you that you must establish that the monies seized are not related to the illegal weapons seized. At Stephen Bilkis and Associates, their New York Gun Crime Attorneys are willing to advice, assist and defend you. Come and speak with any of the New York City Gun Crime attorneys at Stephen Bilkis and Associates. See them at any of their offices at Nassau County.