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Article 480 - NY Penal Law

CRIMINAL FORFEITURE - FELONY CONTROLLED SUBSTANCE OFFENSES

Section Description
480.00 Definitions.
480.05 Felony controlled substance offenses; forfeiture.
480.10 Procedure.
480.20 Disposal of property.
480.25 Election of remedies.
480.30 Provisional remedies.
480.35 Rebuttable presumption.
S 480.00 Definitions.
  The following definitions are applicable to this article.
  1. "Felony offense" means only a felony defined in article two hundred
twenty of this chapter, or an attempt or conspiracy to commit any such
felony, provided such attempt or conspiracy is punishable as a felony,
or solicitation of any such felony provided such solicitation is
punishable as a felony.
  2. "Property" means real property, personal property, money,
negotiable instruments, securities, or anything of value or an interest
in a thing of value.
  3. "Proceeds" means any property obtained by a defendant through the
commission of a felony controlled substance offense, and includes any
appreciation in value of such property.
  4. "Substituted proceeds" means any property obtained by a defendant
by the sale or exchange of proceeds of a felony controlled substance
offense, and any gain realized by such sale or exchange.
  5. "Instrumentality of a felony controlled substance offense" means
any property, other than real property and any buildings, fixtures,
appurtenances, and improvements thereon, whose use contributes directly
and materially to the commission of a felony controlled substance
offense.
  6. "Real property instrumentality of a crime" means an interest in
real property the use of which contributes directly and materially to
the commission of a specified felony offense.
  7. "Specified felony offense" means:
  (a) a conviction of a person for a violation of section 220.18,
220.21, 220.41, or 220.43 of this chapter, or where the accusatory
instrument charges one or more of such offenses, conviction upon a plea
of guilty to any of the felonies for which such plea is otherwise
authorized by law or a conviction of a person for conspiracy to commit a
violation of section 220.18, 220.21, 220.41, or 220.43 of the penal law,
where the controlled substances which are the object of the conspiracy
are located in the real property which is the subject of the forfeiture
action; or
  (b) three or more violations of any of the felonies defined in section
220.09, 220.16, 220.18, 220.21, 220.31, 220.34, 220.39, 220.41, 220.43,
or 221.55 of this chapter, which violations do not constitute a single
criminal offense as defined in subdivision one of section 40.10 of the
criminal procedure law, or a single criminal transaction, as defined in
paragraph (a) of subdivision two of section 40.10 of the criminal
procedure law, and at least one of which resulted in a conviction of
such offense, or where the accusatory instrument charges one or more of
such felonies, conviction upon a plea of guilty to a felony for which
such plea is otherwise authorized by law; or
  (c) a conviction of a person for a violation of section 220.09,
220.16, 220.34, 220.39, or 221.30 of this chapter, or where the
accusatory instrument charges any such felony, conviction upon a plea of
guilty to a felony for which the plea is otherwise authorized by law,
together with evidence which: (i) provides substantial indicia that the
defendant used the real property to engage in a continual, ongoing
course of conduct involving the unlawful mixing, compounding,
manufacturing, warehousing, or packaging of controlled substances or
where the conviction is for a violation of section 221.30 of this
chapter, marijuana as part of an illegal trade or business for gain; and
(ii) establishes, where the conviction is for possession of a controlled
substance or where the conviction is for a violation of section 221.30
of this chapter, marijuana, that such possession was with the intent to
sell it.

S 480.05 Felony controlled substance offenses; forfeiture.
  1. When any person is convicted of a felony offense, the following
property is subject to forfeiture pursuant to this article:
  (a) any property constituting the proceeds or substituted proceeds of
such offense, unless the forfeiture is disproportionate to the
defendant`s gain from or participation in the offense, in which event
the trier of fact may direct forfeiture of a portion thereof; and
  (b) any property constituting an instrumentality of such offense,
other than a real property instrumentality of a crime, unless such
forfeiture is disproportionate to the defendant`s gain from or
participation in the offense, in which event the trier of fact may
direct forfeiture of a portion thereof.
  2. When any person is convicted of a specified offense, the real
property instrumentality of such specified offense is subject to
forfeiture pursuant to this article, unless such forfeiture is
disproportionate to the defendant`s gain from or participation in the
offense, in which event the trier of fact may direct forfeiture of a
portion thereof.
  3. 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, "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
legitimate.

S 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.
  5. In addition to information required to be disclosed pursuant to
article two hundred forty 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 240.40 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.

S 480.20 Disposal of property.
  All property which is forfeited pursuant to this article shall be
disposed of in accordance with the provisions of section thirteen
hundred forty-nine of the civil practice law and rules. All reports
required to be filed pursuant to article thirteen-A of such law and
rules by a claiming authority shall be filed by the prosecutor in a
forfeiture action brought pursuant to this article.

S 480.25 Election of remedies.
  The imposition of a judgment or order of forfeiture pursuant to this
article with respect to a defendant`s interest in property shall
preclude the imposition of a judgment or order of forfeiture with
respect to such interest in property pursuant to the provisions of any
other state or local law based upon the same criminal conduct.

S 480.30 Provisional remedies.
  1. The provisional remedies authorized by article thirteen-A of the
civil practice law and rules shall be available in an action for
criminal forfeiture pursuant to this article to the extent and under the
same terms, conditions and limitations as provided in article thirteen-A
of such law and rules, except as specifically provided herein.
  2. Upon the filing of an indictment and special forfeiture
information, or a superior court information and special forfeiture
information, seeking forfeiture pursuant to this article, all further
proceedings with respect to provisional remedies shall be heard by the
judge or justice in the criminal part to which the criminal action is
assigned.
  3. For purposes of this section, the indictment and special forfeiture
information or superior court information and special forfeiture
information seeking criminal forfeiture shall constitute the summons
with notice or summons and verified complaint referred to in article
thirteen-A of the civil practice law and rules.

S 480.35 Rebuttable presumption.
  1. In a criminal forfeiture proceeding commenced pursuant to this
article, the following rebuttable presumption shall apply: all currency
or negotiable instruments payable to the bearer shall be presumed to be
the proceeds of a felony offense 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
or marihuana unlawfully possessed by such defendant in a room, other
than a public place, under circumstances evincing an intent to
unlawfully mix, compound, package, distribute or otherwise prepare for
sale such controlled substance or marihuana.
  2. The presumption established by this section shall be rebutted by
credible and reliable evidence which tends to show that such currency or
negotiable instruments payable to the bearer is not the proceeds of a
felony offense. 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
this chapter. In an action tried before a jury, at the commencement of
the trial, or at such other time as the court reasonably directs, the
prosecutor shall provide notice to the court and to the defendant of its
intent to request that the court charge such presumption.

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