§ 480.10 — Procedure

New York § 480.10

• Jurisdiction: New York
• Law PEN: Penal
• Title X: Organized Crime Control Act
• Part 4: Administrative Provisions
• Art. 480: Criminal Forfeiture - Felony Controlled Substance Offenses

Text

§ 480.10 Procedure.\n 1. After the grand jury votes to file an indictment charging a person\nwith a felony offense as that term is defined in section 480.00 of this\narticle, it may subsequently receive evidence that property is subject\nto forfeiture under this article. If such evidence is legally sufficient\nand provides reasonable cause to believe that such property is subject\nto forfeiture under this article, the grand jury shall file together\nwith the indictment a special forfeiture information specifying the\nproperty for which forfeiture is sought and containing a plain and\nconcise factual statement which sets forth the basis for the forfeiture.\nAlternatively, where the defendant has waived indictment and has\nconsented to be prosecuted for a felony offense by superior court\ninformation pursuant to article one hundred ninety-five of the criminal\nprocedure law, the prosecutor may, in addition to the superior court\ninformation, file a special forfeiture information specifying the\nproperty for which the forfeiture is sought and containing a plain and\nconcise factual statement which sets forth the basis for the forfeiture.\n 2. At any time before entry of a plea of guilty to an indictment or\ncommencement of a trial thereof, the prosecutor may file a superseding\nspecial forfeiture information in the same court in accordance with the\nprovisions of subdivision one of this section. Upon the filing of such a\nsuperseding forfeiture information the court must, upon application of\nthe defendant, order any adjournment of the proceedings which may, by\nreason of such superseding special forfeiture information, be necessary\nto accord the defendant adequate opportunity to prepare his defense of\nthe forfeiture action.\n 3. A motion to inspect and reduce made pursuant to section 210.20 of\nthe criminal procedure law may seek modification of a special forfeiture\ninformation dismissing a claim with respect to any property interest\ntherein where the court finds the evidence before the grand jury was\nlegally insufficient to support a claim against such interest.\n 4. The prosecutor shall promptly file a copy of the special forfeiture\ninformation, including the terms thereof, with the state division of\ncriminal justice services and with the local agency responsible for\ncriminal justice planning. Failure to file such information shall not be\ngrounds for any relief under this chapter. The prosecutor shall also\nreport such demographic data as required by the state division of\ncriminal justice services when filing a copy of the special forfeiture\ninformation with the state division of criminal justice services.\n 5. In addition to information required to be disclosed pursuant to\narticle two hundred forty-five of the criminal procedure law, when\nforfeiture is sought pursuant to this article, and following the\ndefendant's arraignment on the special forfeiture information, the court\nshall order discovery of any information not otherwise disclosed which\nis material and reasonably necessary for preparation by the defendant\nwith respect to a forfeiture proceeding brought pursuant to this\narticle. Such material shall include those portions of the grand jury\nminutes and such other information which pertain solely to the special\nforfeiture information and shall not include information which pertains\nto the criminal charges. Upon application of the prosecutor, the court\nmay issue a protective order pursuant to section 245.70 of the criminal\nprocedure law with respect to any information required to be disclosed\npursuant to this subdivision.\n 6. (a) Trial of forfeiture counts by jury or by the court. Evidence\nwhich relates solely to the issue of forfeiture shall not be presented\nduring the trial on the underlying felony offense or specified felony\noffense, and the defendant shall not be required to present such\nevidence prior to the verdict on such offense. A defendant who does not\npresent evidence in his defense with respect to the trial of the\nunderlying offense is not precluded on account thereof from presenting\nevidence during the trial of the forfeiture count or counts.\n (b) Trial of forfeiture counts by the jury. After returning a verdict\nof guilty of a felony offense or specified felony offense, or where the\ndefendant has pled guilty to a felony offense or a specified felony\noffense and has not waived a jury trial of the forfeiture count or\ncounts pursuant to article three hundred twenty of the criminal\nprocedure law, the jury shall be given the forfeiture information and\nshall hear any additional evidence which is relevant and legally\nadmissible upon the forfeiture count or counts. After hearing such\nevidence, the jury shall then deliberate upon the forfeiture count or\ncounts, and based upon all the evidence admitted in connection with the\nindictment or superior court information and the forfeiture information,\nmay, if satisfied by proof beyond a reasonable doubt that the property,\nor a portion thereof, is subject to forfeiture pursuant to this article,\nreturn a verdict directing that such property, or portion thereof, is\nsubject to forfeiture.\n (c) Trial of forfeiture counts by the court. Where a defendant has\nwaived a jury trial of the forfeiture count or counts pursuant to\narticle three hundred twenty of the criminal procedure law, the court\nshall hear all evidence upon the forfeiture information and may, if\nsatisfied by proof beyond a reasonable doubt that the property, or a\nportion thereof, is subject to forfeiture under this article, render a\nverdict determining that such property, or a portion thereof, is subject\nto forfeiture under this article.\n (d) After the verdict of forfeiture, the court shall hear arguments\nand may receive additional evidence upon a motion of the defendant that\nthe verdict of forfeiture (i) is against the weight of the evidence, or\n(ii) is, with respect to a forfeiture pursuant to this article,\ndisproportionate to the defendant's gain from the offense, or the\ndefendant's interest in the property, or the defendant's participation\nin the conduct upon which the forfeiture is based. Upon such a finding,\nthe court may in the interest of justice set aside, modify, limit or\notherwise condition the verdict of forfeiture.\n 7. A final judgment or order of forfeiture issued pursuant to this\narticle shall authorize the prosecutor to seize all property directed to\nbe forfeited under this article upon such terms and conditions as the\ncourt deems proper. If a property right is not exercisable or\ntransferable for value by the prosecutor, it shall expire and shall not\nrevert to the convicted person.\n 8. Where the forfeited property consists of real property, the court\nmay at any time prior to a verdict of forfeiture, enter an order\npursuant to subdivision four-a of section thirteen hundred eleven of the\ncivil practice law and rules.\n 9. No person shall forfeit any right, title, or interest in any\nproperty under this article who has not been convicted of a felony\noffense or specified felony offense, as the case may be. Any person\nclaiming an interest in property subject to forfeiture may institute a\nspecial proceeding to determine that claim, before or after the trial,\npursuant to section thirteen hundred twenty-seven of the civil practice\nlaw and rules; provided, however, that if such special proceeding is\ninitiated before trial on the forfeiture count or counts, it may, upon\nwritten motion of the prosecutor, and in the court's discretion, be\npostponed by the court until completion of the trial. In addition, any\nperson claiming an interest in property subject to forfeiture may\npetition for remission as provided for in subdivision seven of section\nthirteen hundred eleven of the civil practice law and rules.\n 10. Testimony of the defendant or evidence derived therefrom\nintroduced in the trial of the forfeiture count may not be used by the\nprosecution in any post-trial motion proceedings, appeals, or retrials\nrelating to the defendant's criminal liability for the underlying\ncriminal offense unless the defendant has previously referred to such\nevidence in such post-trial proceeding, appeal, or retrial relating to\nthe underlying offense and the evidence is presented by the prosecutor\nin response thereto. Upon vacatur or reversal on appeal of a judgment of\nconviction upon which a verdict of forfeiture is based, any verdict of\nforfeiture which is based upon such conviction shall also be vacated or\nreversed.\n