N.Y. Penal Law § 460.30: Enterprise corruption; forfeiture

§ 460.30 Enterprise corruption; forfeiture.

1. Any person convicted of enterprise corruption may be required

pursuant to this section to criminally forfeit to the state:

(a) any interest in, security of, claim against or property or

contractual right of any kind affording a source of influence over any

enterprise whose affairs he has controlled or in which he has

participated in violation of subdivision one of section 460.20 of this

article and for which he was convicted and the use of which interest,

security, claim or right by him contributed directly and materially to

the crime for which he was convicted unless such forfeiture is

disproportionate to the defendant's gain from his association or

employment with the enterprise, in which event the jury may recommend

forfeiture of a portion thereof;

(b) any interest, including proceeds, he has acquired or maintained in

an enterprise in violation of subdivision one of section 460.20 of this

article and for which he was convicted unless such forfeiture is

disproportionate to the conduct he engaged in and on which the

forfeiture is based, in which event the jury may recommend forfeiture of

a portion thereof; or

(c) any interest, including proceeds he has derived from an investment

of proceeds in an enterprise in violation of subdivision one of section

460.20 of this article and for which he was convicted unless such

forfeiture is disproportionate to the conduct he engaged in and on which

the forfeiture is based, in which event the jury may recommend

forfeiture of a portion thereof.

2. (a) Forfeiture may be ordered when the grand jury returning an

indictment charging a person with enterprise corruption has received

evidence legally sufficient to establish, and providing reasonable cause

to believe, that the property or other interest is subject to forfeiture

under this section. In that event, the grand jury shall file a special

information, not to be disclosed to the jury in the criminal action

prior to verdict on the criminal charges, specifying the property or

other interest for which forfeiture is sought and containing a plain and

concise factual statement which sets forth the basis for the forfeiture.

Alternatively, where the defendant has waived indictment and consented

to be prosecuted by superior court information pursuant to article one

hundred ninety-five of the criminal procedure law, the prosecutor may

file, in addition to the superior court information charging enterprise

corruption, a special information specifying the property or other

interest for which forfeiture is sought and containing a plain and

concise factual statement which sets forth the basis for the forfeiture.

(b) After returning a verdict of guilty on an enterprise corruption

count or counts, the jury shall be given the special information and

hear any additional evidence which is relevant and legally admissible

upon the forfeiture count or counts of the special information. After

hearing such evidence, the jury shall then deliberate upon the

forfeiture count or counts and, based upon all the evidence received in

connection with the indictment or superior court information and the

special information, may, if satisfied by proof beyond a reasonable

doubt that the property or other interest, or a portion thereof, is

subject to forfeiture under this section return a verdict determining

such property or other interest, or portion thereof, is subject to

forfeiture, provided, however, where a defendant has waived a jury trial

pursuant to article three hundred twenty of the criminal procedure law,

the court may hear and receive all of the evidence upon the indictment

or superior court information and the special information and render a

verdict upon the enterprise corruption count or counts and the

forfeiture count or counts.

(c) After the verdict of forfeiture, the court shall hear arguments

and may receive additional evidence upon a motion of the defendant that

the verdict of forfeiture (i) is against the weight of the evidence, or

(ii) is, with respect to a forfeiture pursuant to paragraph (a) of

subdivision one of this section, disproportionate to the defendant's

gain from his association or employment with the enterprise, or, with

respect to a forfeiture pursuant to paragraph (b) or (c) of subdivision

one of this section, disproportionate to the conduct he engaged in on

which the forfeiture is based. Upon such a finding the court may in the

interests of justice set aside, modify, limit or otherwise condition an

order of forfeiture.

3. (a) An order of criminal forfeiture shall authorize the prosecutor

to seize all property or other interest declared forfeited under this

section upon such terms and conditions as the court shall deem proper.

If a property right or other interest is not exercisable or transferable

for value by the prosecutor, it shall expire and shall not revert to the

convicted person. The court ordering any forfeiture may remit such

forfeiture or any portion thereof.

(b) No person shall forfeit any right, title or interest in any

property or enterprise under this article who has not been convicted of

a violation of section 460.20 of this article. Any person other than the

convicted person claiming an interest in forfeited property or other

interest may bring a special proceeding to determine that claim, before

or after trial, pursuant to section thirteen hundred twenty-seven of the

civil practice law and rules, provided, however, that if such an action

is brought before trial, it may, upon motion of the prosecutor, and in

the court's discretion, be postponed by the court until completion of

the trial. In addition, any person claiming an interest in property

subject to forfeiture may petition for remission as provided in

subdivision seven of section thirteen hundred eleven of such law and

rules.

4. All property and other interests which are criminally forfeited

following the commencement of an action under this article, whether by

plea, verdict or other agreement, shall be disposed of in accordance

with the provisions of section thirteen hundred forty-nine of the civil

practice law and rules. In any case where one or more of the counts upon

which a person is convicted specifically includes as a criminal act a

violation of any offense defined in article two hundred twenty of this

chapter, the court shall determine what portion of that property or

interest derives from or relates to such criminal act, and direct that

distribution of that portion be conducted in the manner prescribed for

actions grounded upon offenses in violation of article two hundred

twenty.

5. Any person convicted of a violation of section 460.20 of this

article through which he derived pecuniary value, or by which he caused

personal injury or property damage or other loss, may be sentenced to

pay a fine not in excess of three times the gross value he gained or

three times the gross loss he caused, whichever is greater. Moneys so

collected shall be paid as restitution to victims of the crime for

medical expenses actually incurred, loss of earnings or property loss or

damage caused thereby. Any excess after restitution shall be paid to the

state treasury. In any case where one or more of the counts upon which a

person is convicted specifically includes as a criminal act a violation

of any offense defined in article two hundred twenty of this chapter,

the court shall determine what proportion of the entire pattern such

criminal acts constitute and distribute such portion in the manner

prescribed by section three hundred forty-nine of the civil practice law

and rules for forfeiture actions grounded upon offenses in violation of

article two hundred twenty. When the court imposes a fine pursuant to

this subdivision, the court shall make a finding as to the amount of the

gross value gained or the gross loss caused. If the record does not

contain sufficient evidence to support such a finding the court may

conduct a hearing upon the issue. In imposing a fine, the court shall

consider the seriousness of the conduct, whether the amount of the fine

is disproportionate to the conduct in which he engaged, its impact on

victims and the enterprise corrupted by that conduct, as well as the

economic circumstances of the convicted person, including the effect of

the imposition of such a fine upon his immediate family.

6. The imposition of an order of criminal forfeiture pursuant to

subdivision one of this section, a judgment of civil forfeiture pursuant

to article thirteen-A of the civil practice law and rules, or a fine

pursuant to subdivision five of this section or paragraph (b) of

subdivision one of section 80.00 of this chapter, shall preclude the

imposition of any other such order or judgment of forfeiture or fine

based upon the same criminal conduct, provided however that where an

order of criminal forfeiture is imposed pursuant to subdivision one of

this section, an action pursuant to article thirteen-A of the civil

practice law and rules may nonetheless be brought, and an order imposed

in that action, for forfeiture of the proceeds of a crime or the

substituted proceeds of a crime where such proceeds are not subject to

criminal forfeiture pursuant to subdivision one of this section. The

imposition of a fine pursuant to subdivision five of this section or

paragraph (b) of subdivision one of section 80.00 of this chapter, shall

preclude the imposition of any other fine pursuant to any other

provision of this chapter.

7. Other than as provided in subdivision six, the imposition of a

criminal penalty, forfeiture or fine under this section shall not

preclude the application of any other criminal penalty or civil remedy

under this article or under any other provision of law.

8. Any payment made as restitution to victims pursuant to this section

shall not limit, preclude or impair any liability for damages in any

civil action or proceeding for an amount in excess of such payment.