New York State Law
Penal Law
Consolidated Laws of New York's Penal code
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, 220.43, or 220.77 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, 220.43, or 220.77 of this chapter, 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, 220.77, 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. Top of Page
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