N.Y. Penal Law § 480.10: Procedure

§ 480.10 Procedure.

1. After the grand jury votes to file an indictment charging a person

with a felony offense as that term is defined in section 480.00 of this

article, it may subsequently receive evidence that property is subject

to forfeiture under this article. If such evidence is legally sufficient

and provides reasonable cause to believe that such property is subject

to forfeiture under this article, the grand jury shall file together

with the indictment a special forfeiture information specifying the

property 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 has

consented to be prosecuted for a felony offense by superior court

information pursuant to article one hundred ninety-five of the criminal

procedure law, the prosecutor may, in addition to the superior court

information, file a special forfeiture information specifying the

property for which the forfeiture is sought and containing a plain and

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

2. At any time before entry of a plea of guilty to an indictment or

commencement of a trial thereof, the prosecutor may file a superseding

special forfeiture information in the same court in accordance with the

provisions of subdivision one of this section. Upon the filing of such a

superseding forfeiture information the court must, upon application of

the defendant, order any adjournment of the proceedings which may, by

reason of such superseding special forfeiture information, be necessary

to accord the defendant adequate opportunity to prepare his defense of

the forfeiture action.

3. A motion to inspect and reduce made pursuant to section 210.20 of

the criminal procedure law may seek modification of a special forfeiture

information dismissing a claim with respect to any property interest

therein where the court finds the evidence before the grand jury was

legally insufficient to support a claim against such interest.

4. The prosecutor shall promptly file a copy of the special forfeiture

information, including the terms thereof, with the state division of

criminal justice services and with the local agency responsible for

criminal justice planning. Failure to file such information shall not be

grounds for any relief under this chapter. The prosecutor shall also

report such demographic data as required by the state division of

criminal justice services when filing a copy of the special forfeiture

information with the state division of criminal justice services.

5. In addition to information required to be disclosed pursuant to

article two hundred forty-five of the criminal procedure law, when

forfeiture is sought pursuant to this article, and following the

defendant's arraignment on the special forfeiture information, the court

shall order discovery of any information not otherwise disclosed which

is material and reasonably necessary for preparation by the defendant

with respect to a forfeiture proceeding brought pursuant to this

article. Such material shall include those portions of the grand jury

minutes and such other information which pertain solely to the special

forfeiture information and shall not include information which pertains

to the criminal charges. Upon application of the prosecutor, the court

may issue a protective order pursuant to section 245.70 of the criminal

procedure law with respect to any information required to be disclosed

pursuant to this subdivision.

6. (a) Trial of forfeiture counts by jury or by the court. Evidence

which relates solely to the issue of forfeiture shall not be presented

during the trial on the underlying felony offense or specified felony

offense, and the defendant shall not be required to present such

evidence prior to the verdict on such offense. A defendant who does not

present evidence in his defense with respect to the trial of the

underlying offense is not precluded on account thereof from presenting

evidence during the trial of the forfeiture count or counts.

(b) Trial of forfeiture counts by the jury. After returning a verdict

of guilty of a felony offense or specified felony offense, or where the

defendant has pled guilty to a felony offense or a specified felony

offense and has not waived a jury trial of the forfeiture count or

counts pursuant to article three hundred twenty of the criminal

procedure law, the jury shall be given the forfeiture information and

shall hear any additional evidence which is relevant and legally

admissible upon the forfeiture count or counts. After hearing such

evidence, the jury shall then deliberate upon the forfeiture count or

counts, and based upon all the evidence admitted in connection with the

indictment or superior court information and the forfeiture information,

may, if satisfied by proof beyond a reasonable doubt that the property,

or a portion thereof, is subject to forfeiture pursuant to this article,

return a verdict directing that such property, or portion thereof, is

subject to forfeiture.

(c) Trial of forfeiture counts by the court. Where a defendant has

waived a jury trial of the forfeiture count or counts pursuant to

article three hundred twenty of the criminal procedure law, the court

shall hear all evidence upon the forfeiture information and may, if

satisfied by proof beyond a reasonable doubt that the property, or a

portion thereof, is subject to forfeiture under this article, render a

verdict determining that such property, or a portion thereof, is subject

to forfeiture under this article.

(d) 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 this article,

disproportionate to the defendant's gain from the offense, or the

defendant's interest in the property, or the defendant's participation

in the conduct upon which the forfeiture is based. Upon such a finding,

the court may in the interest of justice set aside, modify, limit or

otherwise condition the verdict of forfeiture.

7. A final judgment or order of forfeiture issued pursuant to this

article shall authorize the prosecutor to seize all property directed to

be forfeited under this article upon such terms and conditions as the

court deems proper. If a property right is not exercisable or

transferable for value by the prosecutor, it shall expire and shall not

revert to the convicted person.

8. Where the forfeited property consists of real property, the court

may at any time prior to a verdict of forfeiture, enter an order

pursuant to subdivision four-a of section thirteen hundred eleven of the

civil practice law and rules.

9. No person shall forfeit any right, title, or interest in any

property under this article who has not been convicted of a felony

offense or specified felony offense, as the case may be. Any person

claiming an interest in property subject to forfeiture may institute a

special proceeding to determine that claim, before or after the trial,

pursuant to section thirteen hundred twenty-seven of the civil practice

law and rules; provided, however, that if such special proceeding is

initiated before trial on the forfeiture count or counts, it may, upon

written 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 for in subdivision seven of section

thirteen hundred eleven of the civil practice law and rules.

10. Testimony of the defendant or evidence derived therefrom

introduced in the trial of the forfeiture count may not be used by the

prosecution in any post-trial motion proceedings, appeals, or retrials

relating to the defendant's criminal liability for the underlying

criminal offense unless the defendant has previously referred to such

evidence in such post-trial proceeding, appeal, or retrial relating to

the underlying offense and the evidence is presented by the prosecutor

in response thereto. Upon vacatur or reversal on appeal of a judgment of

conviction upon which a verdict of forfeiture is based, any verdict of

forfeiture which is based upon such conviction shall also be vacated or

reversed.