John Boyle v. Eugene R. Kelley

[42 N.Y.2d 88 Page 89] In December, 1973, and pursuant to a warrant, the amount of $14,960.35 in U. S. currency was seized from the apartment of Donald J. Boyle who was thereafter arrested, along with his brother, both being charged with the crimes of promoting gambling in the second degree and possession of gambling records. A motion to vacate the search, suppress the evidence and return the property was granted in favor of Donald J. Boyle to the extent that the search was invalidated as to him and the evidence suppressed. The portion of the motion directed to the return of the property was denied since it is not established whether such property constitutes the fruits of a crime (CPL § 710.70 [1]) and the defendant should seek this relief by way of replevin.