New York State Asset Forfeiture

Under New York State law, District Attorneys can forfeit “proceeds” of crime and “instrumentalities” of crime. However, in New York, state prosecutors cannot forfeit real property, except in certain drug cases. That means that they are relatively powerless to go after your home. At the very least, it is enormously difficult for state prosecutors to do so and the law provides a weapon in your asset forfeiture attorney’s or seizure defense lawyer’s arsenal in defense of such an attempt.

The term “proceeds” refers to ill-gotten gains and can be cash from a crime, bank accounts, real property (land), and personal property (everything else, including jewelry, stocks, vehicles, electronics, and clothing). Property that is an instrumentality of crime, in the New York State lingo, or that facilitates a crime, in the Federal lingo, is basically the same thing: anything that makes the crime easier to commit. This could also include vehicles, real estate, currency, or other property.

Penal Law Article 480 & New York’s Organized Crime Control Act of 1986

Currently, other than in certain drug and organized crime cases, New York State has no real mechanism for criminal forfeiture. In New York State, the main criminal forfeiture statute is found in New York Penal Law Article 480, which applies to convictions for felonies defined in Penal Law Article 220, or a felony of soliciting, attempting, or conspiring to commit such felony. Unlike Article 13-A and all of the Federal forfeiture statutes, which appropriately require the prosecution to prove forfeitability at trial by a preponderance of the evidence, Article 480 requires the much higher standard of proof beyond a reasonable doubt.

The other main criminal forfeiture statute is found in New York’s Organized Crime Control Act of 1986 (“OCCA”), which defines the crime of Enterprise Corruption. OCCA provides for both criminal and civil forfeiture, including the use of Article 13-A provisional remedies in the criminal case. Like Article 480 forfeitures, however, criminal OCCA forfeiture requires the prosecution to prove its forfeiture case beyond a reasonable doubt. The statute also permits the court, in the interest of justice, to substitute its own factual findings for those of the jury. Indeed, the court is empowered to set aside a jury verdict or to limit it as it sees fit. In both current criminal forfeiture schemes, the prosecutor must present evidence to the grand jury that provides reasonable cause to believe that property is subject to forfeiture, and the grand jury must ultimately make the decision to seek forfeiture of the property. (By contrast, neither Article 13-A nor the Federal scheme have any requirement of grand jury review.) Finally, under the current criminal forfeiture scheme, the court may also order the prosecution to provide discovery related to the forfeiture aspects of the case, including the disclosure of relevant parts of the grand jury minutes. The end result, predictably, is that these criminal forfeiture statutes are rarely, if ever, used by prosecutors around the state. Furthermore, none of the state criminal forfeiture statutes provide for the forfeiture of the proceeds of misdemeanor offenses or the forfeiture of real property instrumentalities of non-drug-related felony offenses. Federal statutes do. In many situations, District Attorney’s offices routinely ask the Federal government to adopt seizures from misdemeanants (e.g., trademark counterfeiting).

As part of a New York State criminal case and except in certain circumstances, the only way the prosecutor can demand forfeiture is by attaching a forfeiture stipulation as a condition of a plea offer and, even in those circumstances, the District Attorney receives forfeiture only in exchange for agreeing not to file a civil lawsuit pursuant to CPLR 13-A. Because there is generally no criminal forfeiture, Assistant District Attorneys are instead required to file a separate, civil, lawsuit against criminal defendants who do not take a plea. In the case, for example, of a $10,000 seizure from a drug dealer, if there is no negotiated disposition to the criminal case – which could include a stipulation agreeing to a forfeiture in lieu of a civil action – the prosecution might choose not to use scarce resources on a civil lawsuit. Furthermore, a District Attorney’s office cannot forfeit your assets if you have been charged with a misdemeanor, and they cannot seize your real property if you use that property to commit a crime.

Call the New York asset forfeiture lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.

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