N.Y. Civil Practice Law & Rules § 1311: Forfeiture actions

§ 1311. Forfeiture actions. 1. A civil action may be commenced by the

appropriate claiming authority against a criminal defendant to recover

the property which constitutes the proceeds of a crime, the substituted

proceeds of a crime, an instrumentality of a crime or the real property

instrumentality of a crime. A civil action may be commenced against a

non-criminal defendant to recover the property which constitutes the

proceeds of a crime, the substituted proceeds of a crime, an

instrumentality of a crime, or the real property instrumentality of a

crime provided, however, that a judgment of forfeiture predicated upon

clause (A) of subparagraph (iv) of paragraph (b) of subdivision three of

this section shall be limited to the amount of the proceeds of the

crime. Any action under this article must be commenced within five years

of the commission of the crime and shall be civil, remedial, and in

personam in nature and shall not be deemed to be a penalty or criminal

forfeiture for any purpose. Except as otherwise specially provided by

statute, the proceedings under this article shall be governed by this

chapter. An action under this article is not a criminal proceeding and

may not be deemed to be a previous prosecution under article forty of

the criminal procedure law.

(a) Actions relating to post-conviction forfeiture crimes. An action

relating to a post-conviction forfeiture crime must be grounded upon a

conviction of a felony defined in subdivision five of section one

thousand three hundred ten of this article or upon a count of an

indictment or information alleging a felony which was dismissed at the

time of a plea of guilty to a felony in satisfaction of such count. A

court may not grant forfeiture until such conviction has occurred.

However, an action may be commenced, and a court may grant a provisional

remedy provided under this article, prior to such conviction having

occurred. An action under this paragraph must be dismissed at any time

after sixty days of the commencement of the action unless the conviction

upon which the action is grounded has occurred, or an indictment or

information upon which the asserted conviction is to be based is pending

in a superior court. An action under this paragraph shall be stayed

during the pendency of a criminal action which is related to it;

provided, however, that such stay shall not prevent the granting or

continuance of any provisional remedy provided under this article or any

other provisions of law.

(b) Actions relating to pre-conviction forfeiture crimes. An action

relating to a pre-conviction forfeiture crime need not be grounded upon

conviction of a pre-conviction forfeiture crime, provided, however, that

if the action is not grounded upon such a conviction, it shall be

necessary in the action for the claiming authority to prove the

commission of a pre-conviction forfeiture crime by clear and convincing

evidence. An action under this paragraph shall be stayed during the

pendency of a criminal action which is related to it; provided, that

upon motion of a defendant in the forfeiture action or the claiming

authority, a court may, in the interest of justice and for good cause,

and with the consent of all parties, order that the forfeiture action

proceed despite the pending criminal action; and provided that such stay

shall not prevent the granting or continuance of any provisional remedy

provided under this article or any other provision of law.

2. All defendants in a forfeiture action brought pursuant to this

article shall have the right to trial by jury on any issue of fact.

3. In a forfeiture action pursuant to this article the following

burdens of proof shall apply:

(a) In a forfeiture action commenced by a claiming authority against a

criminal defendant, except for those facts referred to in paragraph (b)

of subdivision nine of section one thousand three hundred ten and

paragaph (b) of subdivision one of this section which must be proven by

clear and convincing evidence, the burden shall be upon the claiming

authority to prove by a preponderance of the evidence the facts

necessary to establish a claim for forfeiture.

(b) In a forfeiture action commenced by a claiming authority against a

non-criminal defendant:

(i) in an action relating to a pre-conviction forfeiture crime, the

burden shall be upon the claiming authority to prove by clear and

convincing evidence the commission of the crime by a person, provided,

however, that it shall not be necessary to prove the identity of such

person.

(ii) if the action relates to the proceeds of a crime, except as

provided in subparagraph (i) hereof, the burden shall be upon the

claiming authority to prove by a preponderance of the evidence the facts

necessary to establish a claim for forfeiture and that the non-criminal

defendant either (A) knew or should have known that the proceeds were

obtained through the commission of a crime, or (B) fraudulently obtained

his or her interest in the proceeds to avoid forfeiture.

(iii) if the action relates to the substituted proceeds of a crime,

except as provided in subparagraph (i) hereof, the burden shall be upon

the claiming authority to prove by a preponderance of the evidence the

facts necessary to establish a claim for forfeiture and that the

non-criminal defendant either (A) knew that the property sold or

exchanged to obtain an interest in the substituted proceeds was obtained

through the commission of a crime, or (B) fraudulently obtained his or

her interest in the substituted proceeds to avoid forfeiture.

(iv) if the action relates to an instrumentality of a crime, except as

provided for in subparagraph (i) hereof, the burden shall be upon the

claiming authority to prove by a preponderance of the evidence the facts

necessary to establish a claim for forfeiture and that the non-criminal

defendant either (A) knew that the instrumentality was or would be used

in the commission of a crime or (B) knowingly obtained his or her

interest in the instrumentality to avoid forfeiture.

(v) if the action relates to a real property instrumentality of a

crime, the burden shall be upon the claiming authority to prove those

facts referred to in subdivision four-b of section thirteen hundred ten

of this article by clear and convincing evidence. The claiming authority

shall also prove by a clear and convincing evidence that the

non-criminal defendant knew that such property was or would be used for

the commission of specified felony offenses, and either (A) knowingly

and unlawfully benefitted from such conduct or (B) voluntarily agreed to

the use of such property for the commission of such offenses by consent

freely given. For purposes of this subparagraph, a non-criminal

defendant knowingly and unlawfully benefits from the commission of a

specified felony offense when he derives in exchange for permitting the

use or occupancy of such real property by a person or persons committing

such specified offense a substantial benefit that would otherwise not

accrue as a result of the lawful use or occupancy of such real property.

"Benefit" means benefit as defined in subdivision seventeen of section

10.00 of the penal law.

(c) In a forfeiture action commenced by a claiming authority against a

non-criminal defendant the following rebuttable presumptions shall

apply:

(i) a non-criminal defendant who did not pay fair consideration for

the proceeds of a crime, the substituted proceeds of a crime or the

instrumentality of a crime shall be presumed to know that such property

was the proceeds of a crime, the substituted proceeds of a crime, or an

instrumentality of a crime.

(ii) a non-criminal defendant who obtains an interest in the proceeds

of a crime, substituted proceeds of a crime or an instrumentality of a

crime with knowledge of an order of provisional remedy relating to said

property issued pursuant to this article, shall be presumed to know that

such property was the proceeds of a crime, substituted proceeds of a

crime, or an instrumentality of a crime.

(iii) in an action relating to a post-conviction forfeiture crime, a

non-criminal defendant who the claiming authority proves by clear and

convincing evidence has criminal liability under section 20.00 of the

penal law for the crime of conviction or for criminal activity arising

from a common scheme or plan of which such crime is a part and who

possesses an interest in the proceeds, the substituted proceeds, or an

instrumentality of such criminal activity is presumed to know that such

property was the proceeds of a crime, the substituted proceeds of a

crime, or an instrumentality of a crime.

(iv) a non-criminal defendant who participated in or was aware of a

scheme to conceal or disguise the manner in which said non-criminal

obtained his or her interest in the proceeds of a crime, substituted

proceeds of a crime, or an instrumentality of a crime is presumed to

know that such property was the proceeds of a crime, the substituted

proceeds of a crime, or an instrumentality of a crime.

(d) In a forfeiture action commenced by a claiming authority against a

defendant, the following rebuttable presumption shall apply: all

currency or negotiable instruments payable to the bearer shall be

presumed to be the proceeds of a pre-conviction forfeiture crime when

such currency or negotiable instruments are (i) found in close proximity

to a controlled substance unlawfully possessed by the defendant in an

amount sufficient to constitute a violation of section 220.18 or 220.21

of the penal law, or (ii) found in close proximity to any quantity of a

controlled substance unlawfully possessed by such defendant in a room,

other than a public place, under circumstances evincing an intent to

unlawfully mix, compound, distribute, package or otherwise prepare for

sale such controlled substance.

(e) The presumption set forth pursuant to paragraph (d) of this

subdivision shall be rebutted by credible and reliable evidence which

tends to show that such currency or negotiable instrument payable to the

bearer is not the proceeds of a preconviction forfeiture crime. In an

action tried before a jury, the jury shall be so instructed. Any sworn

testimony of a defendant offered to rebut the presumption and any other

evidence which is obtained as a result of such testimony, shall be

inadmissible in any subsequent proceeding relating to the forfeiture

action, or in any other civil or criminal action, except in a

prosecution for a violation of article two hundred ten of the penal law.

In an action tried before a jury, at the commencement of the trial, or

at such other time as the court reasonably directs, the claiming

authority shall provide notice to the court and to the defendant of its

intent to request that the court charge such presumption.

3-a. Conviction of a person in a criminal action upon an accusatory

instrument which includes one or more of the felonies specified in

subdivision four-b of section thirteen hundred ten of this article, of

any felony other than such felonies, shall not preclude a defendant, in

any subsequent proceeding under this article where that conviction is at

issue, from adducing evidence that the conduct underlying the conviction

would not establish the elements of any of the felonies specified in

such subdivision other than the one to which the criminal defendant pled

guilty. If the defendant does adduce such evidence, the burden shall be

upon the claiming authority to prove, by clear and convincing evidence,

that the conduct underlying the criminal conviction would establish the

elements of the felony specified in such subdivision. Nothing contained

in this subdivision shall affect the validity of a settlement of any

forfeiture action negotiated between the claiming authority and a

criminal defendant contemporaneously with the taking of a plea of guilty

in a criminal action to any felony defined in article two hundred twenty

of the penal law, or to a felony conspiracy to commit the same.

4. The court in which a forfeiture action is pending may dismiss said

action in the interests of justice upon its own motion or upon an

application as provided for herein.

(a) At any time during the pendency of a forfeiture action, the

claiming authority who instituted the action, or a defendant may (i)

apply for an order dismissing the complaint and terminating the

forfeiture action in the interest of justice, or (ii) may apply for an

order limiting the forfeiture to an amount equivalent in value to the

value of property constituting the proceeds or substituted proceeds of a

crime in the interest of justice.

(b) Such application for the relief provided in paragraph (a) hereof

must be made in writing and upon notice to all parties. The court may,

in its discretion, direct that notice be given to any other person

having an interest in the property.

(c) An application for the relief provided for in paragraph (a) hereof

must be brought exclusively in the superior court in which the

forfeiture action is pending.

(d) The court may grant the relief provided in paragraph (a) hereof if

it finds that such relief is warranted by the existence of some

compelling factor, consideration or circumstance demonstrating that

forfeiture of the property of any part thereof, would not serve the ends

of justice. Among the factors, considerations and circumstances the

court may consider, among others, are:

(i) the seriousness and circumstances of the crime to which the

property is connected relative to the impact of forfeiture of property

upon the person who committed the crime; or

(ii) the adverse impact of a forfeiture of property upon innocent

persons; or

(iii) the appropriateness of a judgment of forfeiture in an action

relating to pre-conviction forfeiture crime where the criminal

proceeding based on the crime to which the property is allegedly

connected results in an acquittal of the criminal defendant or a

dismissal of the accusatory instrument on the merits; or

(iv) in the case of an action relating to an instrumentality, whether

the value of the instrumentality substantially exceeds the value of the

property constituting the proceeds or substituted proceeds of a crime.

(e) The court must issue a written decision stating the basis for an

order issued pursuant to this subdivision.

4-a. (a) The court in which a forfeiture action relating to real

property is pending may, upon its own motion or upon the motion of the

claiming authority which instituted the action, the defendant, or any

other person who has a lawful property interest in such property, enter

an order:

(i) appointing an administrator pursuant to section seven hundred

seventy-eight of the real property actions and proceedings law when the

owner of a dwelling is a defendant in such action, and when persons who

are not defendants in such action lawfully occupy one or more units

within such dwelling, in order to maintain and preserve the property on

behalf of such persons or any other person or entity who has a lawful

property interest in such property, or in order to remedy any other

condition which is dangerous to life, health or safety; or

(ii) otherwise limiting, modifying or dismissing the forfeiture action

in order to preserve or protect the lawful property interest of any

non-criminal defendant or any other person who is not a criminal

defendant, or the lawful property interest of a defendant which is not

subject to forfeiture; or

(iii) where such action involves interest in a residential leasehold

or a statutory tenancy, directing that upon entry of a judgment of

forfeiture, the lease or statutory tenancy will be modified as a matter

of law to terminate only the interest of the defendant or defendants,

and to continue the occupancy or tenancy of any other person or persons

who lawfully reside in such demised premises, with such rights as such

parties would otherwise have had if the defendant's interest had not

been forfeited pursuant to this article.

(b) For purposes of this subdivision the term "owner" has the same

meaning as prescribed for that term in section seven hundred eighty-one

of the real property actions and proceedings law and the term "dwelling"

shall mean any building or structure or portion thereof which is

principally occupied in whole or part as the home, residence or sleeping

place of one or more human beings.

5. An action for forfeiture shall be commenced by service pursuant to

this chapter of a summons with notice or summons and verified complaint.

No person shall forfeit any right, title, or interest in any property

who is not a defendant in the action. The claiming authority shall also

file a copy of such papers with the state division of criminal justice

services; provided, however, failure to file such papers shall not be

grounds for any relief by a defendant in this section.

6. On the motion of any party to the forfeiture action, and for good

cause shown, a court may seal any papers, including those pertaining to

any provisional remedy, which relate to the forfeiture action until such

time as the property which is the subject of the forfeiture action has

been levied upon. A motion to seal such papers may be made ex parte and

in camera.

7. Remission. In addition to any other relief provided under this

chapter, at any time within one year after the entry of a judgment of

forfeiture, any person, claiming an interest in the property subject to

forfeiture who did not receive actual notice of the forfeiture action

may petition the judge before whom the forfeiture action was held for a

remission or mitigation of the forfeiture and restoration of the

property or the proceeds of any sale resulting from the forfeiture, or

such part thereof, as may be claimed by him. The court may restore said

property upon such terms and conditions as it deems reasonable and just

if (i) the petitioner establishes that he or she was without actual

knowledge of the forfeiture action or any related proceeding for a

provisional remedy and did not know or should not have known that the

forfeited property was connected to a crime or fraudulently conveyed and

(ii) the court determines that restoration of the property would serve

the ends of justice.

8. The total amount that may be recovered by the claiming authority

against all criminal defendants in a forfeiture action or actions

involving the same crime shall not exceed the value of the proceeds of

the crime or substituted proceeds of the crime, whichever amount is

greater, and, in addition, the value of any forfeited instrumentality

used in the crime. Any such recovery against criminal defendants for the

value of the proceeds of the crime or substituted proceeds of the crime

shall be reduced by an amount which equals the value of the same

proceeds of the same crime or the same substituted proceeds of the same

crime recovered against all non-criminal defendants. Any such recovery

for the value of an instrumentality of a crime shall be reduced by an

amount which equals the value of the same instrumentality recovered

against any non-criminal defendant.

The total amount that may be recovered against all non-criminal

defendants in a forfeiture action or actions involving the same crime

shall not exceed the value of the proceeds of the crime or the

substituted proceeds of the crime, whichever amount is greater, and, in

addition, the value of any forfeited instrumentality used in the crime.

Any such recovery against non-criminal defendants for the value of the

proceeds of the crime or substituted proceeds of the crime shall be

reduced by an amount which equals the value of the proceeds of the crime

or substituted proceeds of the crime recovered against all criminal

defendants. A judgment against a non-criminal defendant pursuant to

clause (A) of subparagraph (iv) of paragraph (b) of subdivision three of

this section shall be limited to the amount of the proceeds of the

crime. Any recovery for the value of an instrumentality of the crime

shall be reduced by an amount equal to the value of the same

instrumentality recovered against any criminal defendant.

9. Any defendant in a forfeiture action who knowingly and

intentionally conceals, destroys, dissipates, alters, removes from the

jurisdiction, or otherwise disposes of, property specified in a

provisional remedy ordered by the court or in a judgment of forfeiture

in knowing contempt of said order or judgment shall be subject to

criminal liability and sanctions under sections 80.05 and 215.80 of the

penal law.

10. The proper venue for trial of an action for forfeiture is:

(a) In the case of an action for post-conviction forfeiture commenced

after conviction, the county where the conviction occurred.

(b) In all other cases, the county where a criminal prosecution could

be commenced under article twenty of the criminal procedure law, or, in

the case of an action commenced by the office of prosecution, special

narcotics courts of the city of New York, under section one hundred

seventy-seven-b of the judiciary law.

11. (a) Any stipulation or settlement agreement between the parties to

a forfeiture action shall be filed with the clerk of the court in which

the forfeiture action is pending. No stipulation or settlement agreement

shall be accepted for filing unless it is accompanied by an affidavit

from the claiming authority that written notice of the stipulation or

settlement agreement, including the terms of such, has been given to the

office of victim services, the state division of criminal justice

services.

(b) No judgment or order of forfeiture shall be accepted for filing

unless it is accompanied by an affidavit from the claiming authority

that written notice of judgment or order, including the terms of such,

has been given to the office of victim services, the state division of

criminal justice services.

(c) Any claiming authority or claiming agent which receives any

property pursuant to chapter thirteen of the food and drug laws (21

U.S.C. §801 et seq.) of the United States and/or chapter four of the

customs duties laws (19 U.S.C. §1301 et seq.) of the United States

and/or chapter 96 of the crimes and criminal procedure laws (18 U.S.C.

§1961 et seq.) of the United States shall provide an affidavit to the

commissioner of the division of criminal justice services stating the

estimated present value of the property received.

(d) Any stipulation, settlement agreement, judgement, order or

affidavit required to be given to the state division of criminal justice

services pursuant to this subdivision shall include the defendant's name

and such other demographic data as required by the state division of

criminal justice services.

12. Property acquired in good faith by an attorney as payment for the

reasonable and bona fide fees of legal services or reimbursement of

reasonable and bona fide expenses related to the representation of a

defendant in connection with a civil or criminal forfeiture proceeding

or a related criminal matter, shall be exempt from a judgment of

forfeiture. For purposes of this subdivision and subdivision four of

section one thousand three hundred twelve of this article, "bona fide"

means that the attorney who acquired such property had no reasonable

basis to believe that the fee transaction was a fraudulent or sham

transaction designed to shield property from forfeiture, hide its

existence from governmental investigative agencies, or was conducted for

any purpose other than for legitimate legal representation.