§ 1311 — Forfeiture actions

New York § 1311

• Jurisdiction: New York
• Law CVP: Civil Practice Law & Rules
• Art. 13-A: Proceeds of a Crime-forfeiture

Text

§ 1311. Forfeiture actions. 1. A civil action may be commenced by the\nappropriate claiming authority against a criminal defendant to recover\nthe property which constitutes the proceeds of a crime, the substituted\nproceeds of a crime, an instrumentality of a crime or the real property\ninstrumentality of a crime. A civil action may be commenced against a\nnon-criminal defendant to recover the property which constitutes the\nproceeds of a crime, the substituted proceeds of a crime, an\ninstrumentality of a crime, or the real property instrumentality of a\ncrime provided, however, that a judgment of forfeiture predicated upon\nclause (A) of subparagraph (iv) of paragraph (b) of subdivision three of\nthis section shall be limited to the amount of the proceeds of the\ncrime. Any action under this article must be commenced within five years\nof the commission of the crime and shall be civil, remedial, and in\npersonam in nature and shall not be deemed to be a penalty or criminal\nforfeiture for any purpose. Except as otherwise specially provided by\nstatute, the proceedings under this article shall be governed by this\nchapter. An action under this article is not a criminal proceeding and\nmay not be deemed to be a previous prosecution under article forty of\nthe criminal procedure law.\n (a) Actions relating to post-conviction forfeiture crimes. An action\nrelating to a post-conviction forfeiture crime must be grounded upon a\nconviction of a felony defined in subdivision five of section one\nthousand three hundred ten of this article or upon a count of an\nindictment or information alleging a felony which was dismissed at the\ntime of a plea of guilty to a felony in satisfaction of such count. A\ncourt may not grant forfeiture until such conviction has occurred.\nHowever, an action may be commenced, and a court may grant a provisional\nremedy provided under this article, prior to such conviction having\noccurred. An action under this paragraph must be dismissed at any time\nafter sixty days of the commencement of the action unless the conviction\nupon which the action is grounded has occurred, or an indictment or\ninformation upon which the asserted conviction is to be based is pending\nin a superior court. An action under this paragraph shall be stayed\nduring the pendency of a criminal action which is related to it;\nprovided, however, that such stay shall not prevent the granting or\ncontinuance of any provisional remedy provided under this article or any\nother provisions of law.\n (b) Actions relating to pre-conviction forfeiture crimes. An action\nrelating to a pre-conviction forfeiture crime need not be grounded upon\nconviction of a pre-conviction forfeiture crime, provided, however, that\nif the action is not grounded upon such a conviction, it shall be\nnecessary in the action for the claiming authority to prove the\ncommission of a pre-conviction forfeiture crime by clear and convincing\nevidence. An action under this paragraph shall be stayed during the\npendency of a criminal action which is related to it; provided, that\nupon motion of a defendant in the forfeiture action or the claiming\nauthority, a court may, in the interest of justice and for good cause,\nand with the consent of all parties, order that the forfeiture action\nproceed despite the pending criminal action; and provided that such stay\nshall not prevent the granting or continuance of any provisional remedy\nprovided under this article or any other provision of law.\n 2. All defendants in a forfeiture action brought pursuant to this\narticle shall have the right to trial by jury on any issue of fact.\n 3. In a forfeiture action pursuant to this article the following\nburdens of proof shall apply:\n (a) In a forfeiture action commenced by a claiming authority against a\ncriminal defendant, except for those facts referred to in paragraph (b)\nof subdivision nine of section one thousand three hundred ten and\nparagaph (b) of subdivision one of this section which must be proven by\nclear and convincing evidence, the burden shall be upon the claiming\nauthority to prove by a preponderance of the evidence the facts\nnecessary to establish a claim for forfeiture.\n (b) In a forfeiture action commenced by a claiming authority against a\nnon-criminal defendant:\n (i) in an action relating to a pre-conviction forfeiture crime, the\nburden shall be upon the claiming authority to prove by clear and\nconvincing evidence the commission of the crime by a person, provided,\nhowever, that it shall not be necessary to prove the identity of such\nperson.\n (ii) if the action relates to the proceeds of a crime, except as\nprovided in subparagraph (i) hereof, the burden shall be upon the\nclaiming authority to prove by a preponderance of the evidence the facts\nnecessary to establish a claim for forfeiture and that the non-criminal\ndefendant either (A) knew or should have known that the proceeds were\nobtained through the commission of a crime, or (B) fraudulently obtained\nhis or her interest in the proceeds to avoid forfeiture.\n (iii) if the action relates to the substituted proceeds of a crime,\nexcept as provided in subparagraph (i) hereof, the burden shall be upon\nthe claiming authority to prove by a preponderance of the evidence the\nfacts necessary to establish a claim for forfeiture and that the\nnon-criminal defendant either (A) knew that the property sold or\nexchanged to obtain an interest in the substituted proceeds was obtained\nthrough the commission of a crime, or (B) fraudulently obtained his or\nher interest in the substituted proceeds to avoid forfeiture.\n (iv) if the action relates to an instrumentality of a crime, except as\nprovided for in subparagraph (i) hereof, the burden shall be upon the\nclaiming authority to prove by a preponderance of the evidence the facts\nnecessary to establish a claim for forfeiture and that the non-criminal\ndefendant either (A) knew that the instrumentality was or would be used\nin the commission of a crime or (B) knowingly obtained his or her\ninterest in the instrumentality to avoid forfeiture.\n (v) if the action relates to a real property instrumentality of a\ncrime, the burden shall be upon the claiming authority to prove those\nfacts referred to in subdivision four-b of section thirteen hundred ten\nof this article by clear and convincing evidence. The claiming authority\nshall also prove by a clear and convincing evidence that the\nnon-criminal defendant knew that such property was or would be used for\nthe commission of specified felony offenses, and either (A) knowingly\nand unlawfully benefitted from such conduct or (B) voluntarily agreed to\nthe use of such property for the commission of such offenses by consent\nfreely given. For purposes of this subparagraph, a non-criminal\ndefendant knowingly and unlawfully benefits from the commission of a\nspecified felony offense when he derives in exchange for permitting the\nuse or occupancy of such real property by a person or persons committing\nsuch specified offense a substantial benefit that would otherwise not\naccrue as a result of the lawful use or occupancy of such real property.\n"Benefit" means benefit as defined in subdivision seventeen of section\n10.00 of the penal law.\n (c) In a forfeiture action commenced by a claiming authority against a\nnon-criminal defendant the following rebuttable presumptions shall\napply:\n (i) a non-criminal defendant who did not pay fair consideration for\nthe proceeds of a crime, the substituted proceeds of a crime or the\ninstrumentality of a crime shall be presumed to know that such property\nwas the proceeds of a crime, the substituted proceeds of a crime, or an\ninstrumentality of a crime.\n (ii) a non-criminal defendant who obtains an interest in the proceeds\nof a crime, substituted proceeds of a crime or an instrumentality of a\ncrime with knowledge of an order of provisional remedy relating to said\nproperty issued pursuant to this article, shall be presumed to know that\nsuch property was the proceeds of a crime, substituted proceeds of a\ncrime, or an instrumentality of a crime.\n (iii) in an action relating to a post-conviction forfeiture crime, a\nnon-criminal defendant who the claiming authority proves by clear and\nconvincing evidence has criminal liability under section 20.00 of the\npenal law for the crime of conviction or for criminal activity arising\nfrom a common scheme or plan of which such crime is a part and who\npossesses an interest in the proceeds, the substituted proceeds, or an\ninstrumentality of such criminal activity is presumed to know that such\nproperty was the proceeds of a crime, the substituted proceeds of a\ncrime, or an instrumentality of a crime.\n (iv) a non-criminal defendant who participated in or was aware of a\nscheme to conceal or disguise the manner in which said non-criminal\nobtained his or her interest in the proceeds of a crime, substituted\nproceeds of a crime, or an instrumentality of a crime is presumed to\nknow that such property was the proceeds of a crime, the substituted\nproceeds of a crime, or an instrumentality of a crime.\n (d) In a forfeiture action commenced by a claiming authority against a\ndefendant, the following rebuttable presumption shall apply: all\ncurrency or negotiable instruments payable to the bearer shall be\npresumed to be the proceeds of a pre-conviction forfeiture crime when\nsuch currency or negotiable instruments are (i) found in close proximity\nto a controlled substance unlawfully possessed by the defendant in an\namount sufficient to constitute a violation of section 220.18 or 220.21\nof the penal law, or (ii) found in close proximity to any quantity of a\ncontrolled substance unlawfully possessed by such defendant in a room,\nother than a public place, under circumstances evincing an intent to\nunlawfully mix, compound, distribute, package or otherwise prepare for\nsale such controlled substance.\n (e) The presumption set forth pursuant to paragraph (d) of this\nsubdivision shall be rebutted by credible and reliable evidence which\ntends to show that such currency or negotiable instrument payable to the\nbearer is not the proceeds of a preconviction forfeiture crime. In an\naction tried before a jury, the jury shall be so instructed. Any sworn\ntestimony of a defendant offered to rebut the presumption and any other\nevidence which is obtained as a result of such testimony, shall be\ninadmissible in any subsequent proceeding relating to the forfeiture\naction, or in any other civil or criminal action, except in a\nprosecution for a violation of article two hundred ten of the penal law.\nIn an action tried before a jury, at the commencement of the trial, or\nat such other time as the court reasonably directs, the claiming\nauthority shall provide notice to the court and to the defendant of its\nintent to request that the court charge such presumption.\n 3-a. Conviction of a person in a criminal action upon an accusatory\ninstrument which includes one or more of the felonies specified in\nsubdivision four-b of section thirteen hundred ten of this article, of\nany felony other than such felonies, shall not preclude a defendant, in\nany subsequent proceeding under this article where that conviction is at\nissue, from adducing evidence that the conduct underlying the conviction\nwould not establish the elements of any of the felonies specified in\nsuch subdivision other than the one to which the criminal defendant pled\nguilty. If the defendant does adduce such evidence, the burden shall be\nupon the claiming authority to prove, by clear and convincing evidence,\nthat the conduct underlying the criminal conviction would establish the\nelements of the felony specified in such subdivision. Nothing contained\nin this subdivision shall affect the validity of a settlement of any\nforfeiture action negotiated between the claiming authority and a\ncriminal defendant contemporaneously with the taking of a plea of guilty\nin a criminal action to any felony defined in article two hundred twenty\nof the penal law, or to a felony conspiracy to commit the same.\n 4. The court in which a forfeiture action is pending may dismiss said\naction in the interests of justice upon its own motion or upon an\napplication as provided for herein.\n (a) At any time during the pendency of a forfeiture action, the\nclaiming authority who instituted the action, or a defendant may (i)\napply for an order dismissing the complaint and terminating the\nforfeiture action in the interest of justice, or (ii) may apply for an\norder limiting the forfeiture to an amount equivalent in value to the\nvalue of property constituting the proceeds or substituted proceeds of a\ncrime in the interest of justice.\n (b) Such application for the relief provided in paragraph (a) hereof\nmust be made in writing and upon notice to all parties. The court may,\nin its discretion, direct that notice be given to any other person\nhaving an interest in the property.\n (c) An application for the relief provided for in paragraph (a) hereof\nmust be brought exclusively in the superior court in which the\nforfeiture action is pending.\n (d) The court may grant the relief provided in paragraph (a) hereof if\nit finds that such relief is warranted by the existence of some\ncompelling factor, consideration or circumstance demonstrating that\nforfeiture of the property of any part thereof, would not serve the ends\nof justice. Among the factors, considerations and circumstances the\ncourt may consider, among others, are:\n (i) the seriousness and circumstances of the crime to which the\nproperty is connected relative to the impact of forfeiture of property\nupon the person who committed the crime; or\n (ii) the adverse impact of a forfeiture of property upon innocent\npersons; or\n (iii) the appropriateness of a judgment of forfeiture in an action\nrelating to pre-conviction forfeiture crime where the criminal\nproceeding based on the crime to which the property is allegedly\nconnected results in an acquittal of the criminal defendant or a\ndismissal of the accusatory instrument on the merits; or\n (iv) in the case of an action relating to an instrumentality, whether\nthe value of the instrumentality substantially exceeds the value of the\nproperty constituting the proceeds or substituted proceeds of a crime.\n (e) The court must issue a written decision stating the basis for an\norder issued pursuant to this subdivision.\n 4-a. (a) The court in which a forfeiture action relating to real\nproperty is pending may, upon its own motion or upon the motion of the\nclaiming authority which instituted the action, the defendant, or any\nother person who has a lawful property interest in such property, enter\nan order:\n (i) appointing an administrator pursuant to section seven hundred\nseventy-eight of the real property actions and proceedings law when the\nowner of a dwelling is a defendant in such action, and when persons who\nare not defendants in such action lawfully occupy one or more units\nwithin such dwelling, in order to maintain and preserve the property on\nbehalf of such persons or any other person or entity who has a lawful\nproperty interest in such property, or in order to remedy any other\ncondition which is dangerous to life, health or safety; or\n (ii) otherwise limiting, modifying or dismissing the forfeiture action\nin order to preserve or protect the lawful property interest of any\nnon-criminal defendant or any other person who is not a criminal\ndefendant, or the lawful property interest of a defendant which is not\nsubject to forfeiture; or\n (iii) where such action involves interest in a residential leasehold\nor a statutory tenancy, directing that upon entry of a judgment of\nforfeiture, the lease or statutory tenancy will be modified as a matter\nof law to terminate only the interest of the defendant or defendants,\nand to continue the occupancy or tenancy of any other person or persons\nwho lawfully reside in such demised premises, with such rights as such\nparties would otherwise have had if the defendant's interest had not\nbeen forfeited pursuant to this article.\n (b) For purposes of this subdivision the term "owner" has the same\nmeaning as prescribed for that term in section seven hundred eighty-one\nof the real property actions and proceedings law and the term "dwelling"\nshall mean any building or structure or portion thereof which is\nprincipally occupied in whole or part as the home, residence or sleeping\nplace of one or more human beings.\n 5. An action for forfeiture shall be commenced by service pursuant to\nthis chapter of a summons with notice or summons and verified complaint.\nNo person shall forfeit any right, title, or interest in any property\nwho is not a defendant in the action. The claiming authority shall also\nfile a copy of such papers with the state division of criminal justice\nservices; provided, however, failure to file such papers shall not be\ngrounds for any relief by a defendant in this section.\n 6. On the motion of any party to the forfeiture action, and for good\ncause shown, a court may seal any papers, including those pertaining to\nany provisional remedy, which relate to the forfeiture action until such\ntime as the property which is the subject of the forfeiture action has\nbeen levied upon. A motion to seal such papers may be made ex parte and\nin camera.\n 7. Remission. In addition to any other relief provided under this\nchapter, at any time within one year after the entry of a judgment of\nforfeiture, any person, claiming an interest in the property subject to\nforfeiture who did not receive actual notice of the forfeiture action\nmay petition the judge before whom the forfeiture action was held for a\nremission or mitigation of the forfeiture and restoration of the\nproperty or the proceeds of any sale resulting from the forfeiture, or\nsuch part thereof, as may be claimed by him. The court may restore said\nproperty upon such terms and conditions as it deems reasonable and just\nif (i) the petitioner establishes that he or she was without actual\nknowledge of the forfeiture action or any related proceeding for a\nprovisional remedy and did not know or should not have known that the\nforfeited property was connected to a crime or fraudulently conveyed and\n(ii) the court determines that restoration of the property would serve\nthe ends of justice.\n 8. The total amount that may be recovered by the claiming authority\nagainst all criminal defendants in a forfeiture action or actions\ninvolving the same crime shall not exceed the value of the proceeds of\nthe crime or substituted proceeds of the crime, whichever amount is\ngreater, and, in addition, the value of any forfeited instrumentality\nused in the crime. Any such recovery against criminal defendants for the\nvalue of the proceeds of the crime or substituted proceeds of the crime\nshall be reduced by an amount which equals the value of the same\nproceeds of the same crime or the same substituted proceeds of the same\ncrime recovered against all non-criminal defendants. Any such recovery\nfor the value of an instrumentality of a crime shall be reduced by an\namount which equals the value of the same instrumentality recovered\nagainst any non-criminal defendant.\n The total amount that may be recovered against all non-criminal\ndefendants in a forfeiture action or actions involving the same crime\nshall not exceed the value of the proceeds of the crime or the\nsubstituted proceeds of the crime, whichever amount is greater, and, in\naddition, the value of any forfeited instrumentality used in the crime.\nAny such recovery against non-criminal defendants for the value of the\nproceeds of the crime or substituted proceeds of the crime shall be\nreduced by an amount which equals the value of the proceeds of the crime\nor substituted proceeds of the crime recovered against all criminal\ndefendants. A judgment against a non-criminal defendant pursuant to\nclause (A) of subparagraph (iv) of paragraph (b) of subdivision three of\nthis section shall be limited to the amount of the proceeds of the\ncrime. Any recovery for the value of an instrumentality of the crime\nshall be reduced by an amount equal to the value of the same\ninstrumentality recovered against any criminal defendant.\n 9. Any defendant in a forfeiture action who knowingly and\nintentionally conceals, destroys, dissipates, alters, removes from the\njurisdiction, or otherwise disposes of, property specified in a\nprovisional remedy ordered by the court or in a judgment of forfeiture\nin knowing contempt of said order or judgment shall be subject to\ncriminal liability and sanctions under sections 80.05 and 215.80 of the\npenal law.\n 10. The proper venue for trial of an action for forfeiture is:\n (a) In the case of an action for post-conviction forfeiture commenced\nafter conviction, the county where the conviction occurred.\n (b) In all other cases, the county where a criminal prosecution could\nbe commenced under article twenty of the criminal procedure law, or, in\nthe case of an action commenced by the office of prosecution, special\nnarcotics courts of the city of New York, under section one hundred\nseventy-seven-b of the judiciary law.\n 11. (a) Any stipulation or settlement agreement between the parties to\na forfeiture action shall be filed with the clerk of the court in which\nthe forfeiture action is pending. No stipulation or settlement agreement\nshall be accepted for filing unless it is accompanied by an affidavit\nfrom the claiming authority that written notice of the stipulation or\nsettlement agreement, including the terms of such, has been given to the\noffice of victim services, the state division of criminal justice\nservices.\n (b) No judgment or order of forfeiture shall be accepted for filing\nunless it is accompanied by an affidavit from the claiming authority\nthat written notice of judgment or order, including the terms of such,\nhas been given to the office of victim services, the state division of\ncriminal justice services.\n (c) Any claiming authority or claiming agent which receives any\nproperty pursuant to chapter thirteen of the food and drug laws (21\nU.S.C. §801 et seq.) of the United States and/or chapter four of the\ncustoms duties laws (19 U.S.C. §1301 et seq.) of the United States\nand/or chapter 96 of the crimes and criminal procedure laws (18 U.S.C.\n§1961 et seq.) of the United States shall provide an affidavit to the\ncommissioner of the division of criminal justice services stating the\nestimated present value of the property received.\n (d) Any stipulation, settlement agreement, judgement, order or\naffidavit required to be given to the state division of criminal justice\nservices pursuant to this subdivision shall include the defendant's name\nand such other demographic data as required by the state division of\ncriminal justice services.\n 12. Property acquired in good faith by an attorney as payment for the\nreasonable and bona fide fees of legal services or reimbursement of\nreasonable and bona fide expenses related to the representation of a\ndefendant in connection with a civil or criminal forfeiture proceeding\nor a related criminal matter, shall be exempt from a judgment of\nforfeiture. For purposes of this subdivision and subdivision four of\nsection one thousand three hundred twelve of this article, "bona fide"\nmeans that the attorney who acquired such property had no reasonable\nbasis to believe that the fee transaction was a fraudulent or sham\ntransaction designed to shield property from forfeiture, hide its\nexistence from governmental investigative agencies, or was conducted for\nany purpose other than for legitimate legal representation.\n