Can the New York District Attorney Seize Art in Other States?
A New York State Supreme Court issued a seizure order for artwork from Austrian artist Egon Schiele titled Russian War Prisoner. see Matter of Art Inst. of Chicago, 85 Misc. 3d 1265(A), 2025 NY Slip Op 50617(U) (Sup. Ct., N.Y. County Apr. 23, 2025). Even though the painting was no longer in New York and the Art institute took no action to receive or possess the painting in New York, the Court found that it has jurisdiction under CPL 20.20 because the crime of knowing possession of stolen property was the same in New York and Chicago and that there was a conspiracy to possess stolen property between the dealer that sold it in New York and the eventually the Art Institute of Chicago. Id. at 31, 32.
The Court’s approach has several problems. First, CPL 20.20 deals with jurisdiction over people and not property. The Art Institute points this out in their appeal brief to the First Department. see Pet’r’s Br. 21, Matter of Art Inst. of Chicago (2025-04496, U.S. July. 22, 2025). The Art Institute also points out that CPL 20.20(1)(a) refers to conduct that has occurred within the state to establish an element of the offense and that New York Courts have only allowed criminal jurisdiction over defendants for conspiracy who committed acts in further of the conspiracy in New York. Id. at 22. The Art Institute also referenced People ex rel. Simpson Co. v. Kempner, 208 N.Y. 16 (1913) which held that where property has been taken by a search warrant from the possession of a third person, and there is a controversy between the person from whom it is claimed that the property was stolen and the third person the dispute cannot be determined upon a criminal process. Id. at 25. The Art Institute also noted that the New York Attorney General has issued an advisory opinion that New York Penal Law Section 450.10 cannot be used to resolve contested claims of ownership in the absence of a criminal case. Id. see Pet’r’s Br. 27, Matter of Art Inst. of Chicago (2025-04496, U.S. July. 22, 2025). The Art Institute also correctly pointed out that one of the few court cases cited by the Judge in support of their decision to exercise jurisdiction was taken out of context. Id. More specifically, in the decision cited by the Judge, the Court explained in dicta that:
“Penal Law § 450.10 . . . provides a mechanism for returning allegedly stolen property to an owner prior to, or during the pendency of, a criminal proceeding, [and] requires proof of title before property in the custody of the People or the court can be returned. Thus, a civil-like proceeding would have to be commenced in this case to return the paintings to the rightful owners under either CPL 610.25 (2) or Penal Law § 450.10--regardless of the outcome of the People’s case.” see Id. at 29.
This clearly means a separate civil action is required to establish title before a court can take possession and return property, which did not happen in Matter of Art Inst. of Chicago.
The New York City District Attorney's Office’s response to did not address many of these points. The DA’s Office’s answer consisted mostly of procedural arguments that the Art Institute waived their substantive positions. Resp’t’s Br. 10-18, Matter of Art Inst. of Chicago (2025-04496, U.S. October 31, 2025). The DA acknowledges Kempner, but argues it is distinguishable because it was about private parties, not the People, obtaining a search warrant based on later superseded procedural rules. Id. at 14. A warrant issued for property based on criminal has the same effect whether it was applied for by the district attorney or a person. The Kempner decision and the DA’s response do not explain why there would be a distinction between the two. The DA’s also acknowledges the Art Institute correctly quotes the New York Attorney General that New York Penal Law Section 450.10 cannot be used to resolve contested claims of ownership in the absence of a criminal case, but only notes that this opinion informal and addressed a warrantless seizure by police. Id. The DA fails to explain why New York Penal Law Section 450.10 would prevent the use of a warrantless seizure of property without criminal case but allow a seizure with a warrant. The statue does not say this at all.
The DA’s strangest argument was: “AIC cites no other controlling authority that clearly bars Justice Drysdale’s seizure of the painting and consequent holding of turnover proceedings.” Id. at 14. Is it really incumbent on individuals to prove the State does not have power to act? Doesn’t the State have the duty to show where they have the authority to act, before they act? The 10th Amendment states “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The 14th amendment states “nor shall any State deprive any person of life, liberty, or property, without due process of law”
One issue which was not addressed by the DA or the Art Institute was that the crime of knowing possession of stolen property was not the same in New York and Chicago. In New York, Criminal Possession of Stolen Property in the First Degree under PL § 165.54, occurs when someone “ knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner, and when the value of the property exceeds one million dollars." In Illinois, a person is guilty of the crime of theft when they obtain “control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce him or her to believe that the property was stolen” These are not the same thing. The Court’s decision mentions that when the painting was sold in New York, the provenance or the pre-war history of the painting was not discussed. Matter of Art Inst. of Chicago, 85 Misc. 3d 1265(A), 2025 NY Slip Op 50617(U) (Sup. Ct., N.Y. County Apr. 23, 2025) at 7. How could someone have knowingly possesses stolen property, if they were never informed that they were stolen? Furthermore, if the painting was never knowingly possessed as stolen in New York, there could not have been a conspiracy to knowingly posses it in Chicago.