The Manhattan District Attorney's Narcotics Eviction Program.

MENU TITLE: Manhattan Narcotics Eviction                          
Series: NIJ Program Focus
Published: May 1995
16 pages
42,654 bytes

The Manhattan District Attorney's Narcotics
Eviction Program

by Peter Finn

Highlights

Drug dealing in urban apartment buildings disrupts
the lives of law-abiding tenants and ties up
criminal justice system resources. In the past,
arresting and prosecuting drug traffickers have not
brought much relief since tenants' fear of
testifying led to failure to convict traffickers or
other drug traffickers quickly replaced those who
were sent to jail.

In 1987 Manhattan District Attorney Robert M.
Morgenthau heard about an unusual case in which
drug dealers in an apartment building were evicted
on the basis of the Real Property Actions and
Proceedings Law. Based on this case, he created the
Narcotics Eviction Program--a program that
systematically uses this civil statute to remove
drug dealers from residential and commercial
buildings. 

Between June 1988 and August 1994, the program
removed drug dealers from 2,005 apartments and
retail stores. The program's success stems from the
following characteristics of the program and its
operations:

o Witnesses can give the police anonymous tips
about drug dealing without having to testify in
court. As a result, witnesses have usually not been
afraid to provide evidence.

o Although the district attorney can undertake an
eviction proceeding if necessary, the program gives
landlords a strong incentive to take action
themselves because it furnishes them with police
laboratory analyses and search and seizure reports.
It also arranges for police witnesses to appear at
civil trial and provides a staff attorney or
paralegal to assist the landlord's attorney.

o Because the proceedings are civil, not criminal,
the judge may authorize an eviction based on a
preponderance of evidence that drug dealing is
occurring. No arrest is necessary to meet this
standard of proof--just evidence of an illegal drug
business. The summary nature of the court
proceeding means that trials are rarely delayed or
postponed and typically last only 15 minutes to an
hour.

o In most cases, the Manhattan drug dealers have
not been official tenants but have used rented
premises for drug trafficking with the
leaseholders' consent. Under the Narcotics Eviction
program, the leaseholder can still be evicted if
the evidence shows he or she knew that an illegal
business was being conducted from the apartment.
-------------------------------

For one and a half years, tenants in an apartment
building on Manhattan's Lower East Side complained
repeatedly to the police about members of a family
conducting illegal drug sales from their
apartment. Police arrested the tenant, a woman
living with her four children aged 15 to 21, for
possession of heroin and narcotics paraphernalia.
Police testified that they observed a handgun and
21 glassine envelopes of
heroin "cascading" out the apartment window. 

Inside her apartment, police seized an electronic
currency counting machine, 2 triple beam scales, a
bullet-proof vest, 20 to 30 pairs of sneakers
(used by drug runners), a flare gun, 2
walkie-talkies, and nearly $23,000 in cash. Yet
the family continued to use the apartment as a
base for selling drugs.

Eventually, the Manhattan District Attorney's
Narcotics Eviction Program petitioned the court to
evict the tenant under the authority of the Real
Property Actions and Proceedings Law, a State
civil statute. The tenant argued that she should
not be evicted because police did not find any
drugs or evidence of drug sales in her apartment.
Judge Peter Tom, however, authorized the eviction
because the civil statute does not require the
district attorney to prove that the tenant
committed a specific crime. The district attorney
only has to present evidence warranting the
conclusion that the premises are being used for an
illegal business. The family was evicted from the
apartment after trial, and the landlord re-rented
the unit to another tenant who left his neighbors
in peace.

In many towns and cities, drug dealing in
apartment buildings is a major problem that not
only disrupts the lives of law-abiding tenants but
also ties up criminal justice system resources.
Arresting and prosecuting drug traffickers in
these apartment buildings often fail to solve the
problem because the crime cannot be proved beyond
a reasonable doubt. Even if drug dealers are
convicted and jailed, the process may take over a
year. Because they are often not the tenant of
record, they may be quickly replaced by other drug
traffickers. However, as the vignette above
illustrates, using a civil, rather than criminal,
statute, the Manhattan District Attorney's
Narcotics Eviction Program can permanently rid
apartment buildings of drug dealers.

For years, police officers arrested drug dealers
only to watch them return or be replaced in the
apartment almost immediately. Now they can remove
drug dealers for good. 

How the Program Works
The eviction process involves three principal
steps: screening the case, notifying the landlord
and tenant, and going to court. The program asks
the landlord to begin eviction proceedings against
tenants who are using or allowing others to use
their apartment to sell drugs. If the landlord
refuses to act, the district attorney's office has
the authority under the Real Property Actions and
Proceedings Law to initiate eviction proceedings
in court as though it were the owner or landlord
of the premises (see "Statutory Basis for
Eviction").

Screening cases carefully. The Narcotics Eviction
Program learns about most cases by reviewing every
search warrant that the police in Manhattan
execute for suspected narcotics offenses. The
program also obtains referrals directly from the
police department, individual residents, tenant
organizations, and landlords and their attorneys.

Typically, the drugs seized must weigh at least an
eighth of an ounce--a felony level weight in New
York. According to Gary J. Galperin, the Assistant
District Attorney who runs the program, "We
consider pursuing a case if we find that drugs
were seized from a residential or commercial unit,
and the police records reveal evidence consistent
with the operation of a drug business. The Real
Property Actions and Proceedings Law does not
authorize government action for illegal personal
drug use."

Even if the police do not recover any drugs, the
program may still bring civil action if there is
other convincing evidence that the premises are
being used in connection with a narcotics
operation. Such evidence may include materials for
processing and packaging drugs or records of drug
transactions.

During the early years of the program, the
district attorney was criticized when the program
tried to evict tenants whom the public and the
tenants' attorneys regarded as innocent victims,
that is, people who did not agree to--much less
participate in--drug dealing.
An example of this was a case involving a
68-year-old woman and her two daughters. The
landlord argued that although the mother was not
selling drugs herself, she knew that her daughters
were trafficking and refused to stop them. The
judge ruled that the tenant may not have been
aware of the drug activity in view of her advanced
age, poor health, and apparent lack of
sophistication. In addition, the drugs were sold
in the early morning hours, and they were never
left in open view of the mother. As a result of
these considerations, the judge allowed the tenant
to remain on condition that her daughters not
return to the apartment.

On other occasions, evictions have been challenged
because the targeted individual was too old or too
young, would become homeless, or had lived in the
apartment for many years. Although these
challenges have all been unsuccessful, the program
has been sensitive to these criticisms, going so
far as to help innocent victims find other
suitable housing. Therefore, concerns about the
eviction of innocent victims are heard less
frequently today. According to Gary Galperin, "the
office is careful to proceed only when the
participation, knowledge, or acquiescence of every
tenant is clear" in order to avoid evicting
blameless people or even subjecting them to a
lawsuit.

Indeed, the program has initiated eviction
proceedings in less than half of all the cases it
has screened--2,150 out of 5,305 cases to date. As
a result, tenants who have been sued have rarely
been able to refute the charges brought against
them in court. For example, when a woman claimed
she used a triple beam scale for cooking in order
"to weigh the proper amount of paprika and basil,"
the judge responded, "That's just not credible."

Notifying tenants and landlords. The Narcotics
Eviction Program first calls the landlord and then
sends the landlord and the landlord's attorney a
letter informing them of the suspected drug
dealing. The letter notes that a police search
warrant produced evidence that the premises were
being used for selling narcotics and requests that
the landlord commence eviction proceedings.
Included with each letter are a copy of the
statute, the search warrant or court complaint, a
description of incriminating property recovered in
the search, and the police laboratory report on
any drugs that were seized.

About 2 weeks later, if the landlord or landlord's
attorney has not contacted the program, a
paralegal telephones to make sure the landlord and
the landlord's attorney have received the
materials and begun eviction proceedings in court.
If not, the program sends a second letter warning
that if the landlord does not confirm by a
specific date that eviction proceedings have
begun, the district attorney's office will
"commence eviction proceedings as the petitioner"
with both the tenant and landlord as respondents--
the targets of the civil action. The second letter
warns that if the court rules in the program's
favor, the judge may fine the landlord $5,000 and
order reimbursement of the district attorney's
costs for the case. In most cases, the landlord
agrees after the first or second letter to
initiate eviction proceedings (see "From the
Landlord's Perspective").

Whereas the program expects private landlords to
use their own attorneys to handle evictions,
program staff handle all cases involving the New
York City Housing Authority's 55,000 subsidized
rental units in Manhattan. The authority has been
very pleased with the results (see "Housing
Authority Welcomes the Program's Assistance"). The
Narcotics Eviction Program also handles cases for
cooperative landlords who cannot afford to hire a
lawyer or who justifiably fear retaliation by drug
dealers.

The landlord or district attorney's office also
gives the tenant ample notice of the proceedings
and an opportunity to contest them. Two separate
attempts are made to hand-serve a notice. If no
one is home the second time, a notice is posted on
the apartment door and then mailed certified and
first class. The judge is scrupulous about making
sure this procedure is followed and dismisses
cases in which the petitioner has not provided
proper notice.

Going to court. At the initial court appearance,
the judge discusses the case with the tenant,
landlord, and program attorney or paralegal
(available to assist the landlord's attorney when
the district attorney is not prosecuting the
case). The judge identifies any issues that are in
dispute and then adjourns the case for trial. The
judge gives the tenant the opportunity to hire a
private attorney or obtain counsel from a legal
services agency.

At trial, the landlord or the program's assistant
district attorney must prove by a preponderance of
evidence that an illegal business is being
conducted in the apartment. If, as is usually the
case, the tenant of record is not the accused drug
dealer, the landlord or district attorney must
also prove that the tenant knew about the illegal
activity and did not try to stop it.

The Narcotics Eviction Program always provides a
police officer who has entered the apartment to
testify that incriminating evidence was found
during the search. However, according to Galperin,
"We almost never provide the names of undercover
police officers or ask them to testify in order
not to compromise their safety or their value in
future criminal investigations by blowing their
cover." Similarly, neighbors are rarely asked to
testify because police witnesses and documents
usually provide sufficient evidence of an illegal
business.

More often than not, the tenant fails to appear in
court, and the trial becomes an uncontested
hearing. Even if the tenant does not show up, the
judge still holds a hearing and requires testimony
from the police witness and the property owner.
Then, if the evidence is sufficient, the judge
signs a "judgment of possession," which returns
the apartment to the control of the landlord. The
landlord then arranges for a city marshal to
execute the eviction.

Because immediate action is needed when drug
dealers are operating in an apartment building,
State statute authorizes the judge to conduct
these cases as a summary proceeding. The judge
rarely allows postponements unless a tenant's
attorney demonstrates ample need for delay. Less
discovery is permitted in these proceedings than
in criminal or other civil proceedings; the judge
does not allow any "fishing expeditions." As a
result, most trials take only 15 minutes to an
hour.

The total time from case acceptance to the removal
of a drug dealer is usually 3 to 5 months. Judge
Eileen Bransten says, "If there is a finding that
drugs are being sold from an apartment, that means
that the innocent tenants in the apartment
building are suffering and that drug dealing could
spread if left unchecked. So drug eviction cases
should be dealt with quickly, which a summary
proceeding contemplates, so that the other tenants
can live in a drug-free environment. In these
cases, justice done quickly and fairly is justice
done
for all."

How the Program Got Started
Community activity was the impetus for starting
the Narcotics Eviction Program. In 1986, when the
owner of a three-story brownstone on Manhattan
Avenue died without a will or heirs, the city's
public administrator assumed responsibility for
the building. According to Judge Tom, who heard
the case, "drug dealers ended up taking over the
building, and the entire neighborhood
degenerated." Neighbors complained to the police,
who made several raids and numerous arrests, but
the dealers would just return the next day, as
soon as they were released on bail, or other
dealers would take their place.

Although notified of the drug activity, the public
administrator failed to take action. As a result,
26 homeowners and tenants who lived within 200
feet of the building hired their own attorney,
subpoenaed police officers to testify, and asked
Judge Tom to use the Real Property Actions and
Proceedings Law to evict all the occupants and
board up the building. The judge agreed and placed
a lien on the building and ordered that proceeds
of any future sale of the property be used to
repay the neighbors' costs and attorney fees. 
About the same time that this case was being
decided, the Manhattan District Attorney's office
came under criticism from the community for not
doing enough to get rid of drug traffickers
operating out of apartments. Staff reported that
even with aggressive police enforcement, the same
or other drug traffickers often returned to the
apartment. Morgenthau asked, "Why can't we evict
these people?" With the recent neighbor-
initiated case still fresh in mind, he came up
with the idea of using the Real Property Actions
and Proceedings Law on a systematic basis to
remove drug dealers.

Two features of the Real Property Actions and
Proceedings Law were particularly appealing.
First, it permitted the district attorney to share
certain police reports with landlords to
facilitate evictions. In the past, when
law-abiding tenants complained about drug-dealing
neighbors, landlords--including the New York City
Housing Authority--were usually unable or
unwilling to remove the drug dealers. Part of the
problem was that landlords had no legal access to
police reports to present in court as evidence of
illegal activity in their properties. Since most
tenants refused to testify because they were
afraid the drug dealers would retaliate against
them, this left the landlords with little, if any,
evidence of illegal activity to present in court.
Second, because this previously neglected statute
authorized a summary court proceeding, there would
be no time-consuming hearings and few appeals. The
requirements of due process would be met, however,
because cases would be brought to court only after
the tenant was given written notice. In addition,
the tenant could come to court with an attorney,
evidence would be presented in open court, and
there would be opportunity for cross-examination.
The court later agreed with this position.1 

What began as an experiment with a single,
part-time assistant prosecutor and one paralegal
has now evolved into a program with six assistant
district attorneys who devote about one-quarter of
their time to the program. A bureau chief and a
deputy spend about half their time with the
program, and five paralegals work between half-
and full-time. There is also a full-time
secretary. The program's operating budget is about
$300,000 a year, most of which comes from the
district attor-ney's budget. Additional funding
comes from State and Federal Government grants.

Measuring the Program's Success
The success of the Narcotics Eviction Program can
be measured in several ways. The program has been
able to remove drug traffickers in 98 percent of
the cases it has taken to court. No successful
legal challenges have been made to the Real
Property Actions and Proceedings Law or to the
program's application of the statute. Another
measure of success is the fact that drug dealers'
businesses are being disrupted, improving the
quality of life for law-abiding tenants. 
High rate of evictions. Between June 1988 and
August 1994, the program was responsible for
removing drug dealers from 2,005 locations. Most
cases involved residential units, but many
involved retail establishments (see "Fruit Stand
Sales"). In over half of these cases, the tenant
left before court action became necessary. In the
remaining cases, the court issued evictions. On
104 occasions, the program allowed the tenant to
remain on condition of good behavior, typically
because the prosecutor handling the case was
convinced that the tenant of record was not
involved in illegal activity, and the drug dealer
had already been permanently removed.

The program has withdrawn 1 percent of its cases
after filing, usually because a prosecutor
discovered there was insufficient evidence to
proceed. The court has dismissed another 20
eviction attempts (1 percent of the program's
cases) because of insufficient evidence that an
illegal business was being conducted or because
the landlord (or program attorney) did not prove
to the judge's satisfaction that the tenant was
aware of the criminal activity.

Passing constitutional muster. No successful legal
challenges have been made to the Real Property
Actions and Proceedings Law or to the Narcotics
Eviction Program's application of the statute.
Constitutional law experts have identified certain
eviction practices that might provide the basis
for a successful legal challenge. Examples of
these practices include targeting transactions
that do not constitute a business (personal use or
giving drugs to a friend) and not giving the
tenant notice and an opportunity to be heard
before an order of eviction. Such practices have
been studiously avoided by the program. 

Although some might believe that moving against a
tenant both criminally and civilly violates the
Constitution's prohibition against double
jeopardy, legal scholars believe that eviction
would not be double punishment. Proponents of the
program argue that removing someone from an
apartment constitutes an administrative remedy
that serves reasonable regulatory goals of
removing a public nuisance and remedying a
violation of the tenant's rental agreement. Only
the criminal case results in actual punishment for
the drug dealer.

On August 10, 1994, a New York State appellate
court agreed with program proponents when it ruled
that evicting a tenant under the statute was not a
violation of double jeopardy, even though the
evidence in the civil case was based on the same
facts that had already been used to convict the
tenant of a criminal narcotics offense.2 
Putting drug dealers out of business. After an
eviction, the program encourages neighbors to
report any new drug trafficking that occurs in the
re-rented apartment. A few dealers do try to
return. According to Detective James Gilmore, on
one occasion "as we were coming down the stairs
with the marshals after sealing an apartment, the
dealers were already coming back in through the
fire escape and the back window, so we have to
watch the rear of the building when we do an
eviction." Gary Galperin notes that on rare
occasions the program has had to force out a
second set of dealers from the same apartment
after the first group was removed. However, most
dealers have left permanently.

Of course, these drug dealers may set up shop in
another apartment building or neighborhood and
create an intolerable situation for a new set of
neighbors. According to Judge Tom, however, the
drug dealers "lose their business, not just their
apartment," because they have to reestablish
operations in a new location where they usually
have to compete with other well-established drug
dealers protecting their own turf. Drug users in
the new neighborhood may also be unwilling to do
business with a relocated drug trafficker because
they are unfamiliar with the particular brand of
drug the new dealer sells.

Improving the quality of life for law-abiding
tenants. Perhaps the best measure of the program's
success comes from tenants and neighbors whose
safety and tranquility have been restored after a
drug trafficker operating in their building has
been forced out. 

A tenant's quality of life is often severely
eroded by drug trafficking in the building. Drug
dealers and their customers can monopolize
elevators, race noisily up and down stairs, create
a ruckus throughout the night, and resort to
violence against other drug dealers and customers.
In addition, drug traffickers attract addicts and
thieves who cause further disruption, instill fear
in other tenants, and transform the entire
neighborhood into an unsightly danger zone.

The Narcotics Eviction Program helps people who
have the fewest options for improving their living
conditions. Most of the tenants affected by these
disruptions do not have the money to move to a
drug-free neighborhood. When the program removes
drug dealers from public housing units, these
apartments become available to some of the city's
more than 200,000 families on the 5-year waiting
list to enter subsidized housing.

Keys to the Program's Success
Without the support of the Manhattan District
Attorney, the police, and the community, the
program might have been doomed to failure. But the
close collaboration of these players who have used
a civil remedy and a special court to handle the
evictions has ensured the program's success.
Support from the top. Manhattan District Attorney
Robert Morgenthau has always given the program his
full support. When he initiated the program, he
announced it personally, and he has treated it as
a flagship program ever since. Why? The program is
"effective in responding to a serious community
problem," he said. "If we can close down the whole
drug-dealing operation, we can have a significant
impact. No other individual step we take addresses
the drug-trafficking problem as effectively in a
building where people live, and there's nothing
more important than recapturing housing stock so
that people can live safely in their homes."

At every opportunity, Mr. Morgenthau mentions the
program's success--at city council meetings, in
public speaking engagements, and during
police-community fellowship breakfasts. When the
Federal Office of National Drug Control Policy
(ONDCP) announced the availability of drug
enforcement grants, Morgenthau chose to submit an
application to expand the Narcotics Eviction
Program. ONDCP awarded a grant for $490,000. He
has provided the program with additional assistant
district attorneys, paralegals, and computers.
Close collaboration with the police. It is
sometimes difficult to arrange for police officers
to testify at trials when they are on special
assignment or task forces that limit their
availability during normal court hours. The
program, however, calls the precinct commander to
arrange for hard-to-reach officers to testify. The
program can also request officers from community
policing units to visit apartments after
successful evictions to determine whether drug
activity has resumed.

The program is careful not to jeopardize criminal
prosecution of drug dealers targeted for removal.
Because criminal defendants have the right to
obtain certain testimony given in a civil eviction
case and possibly use it in their defense, the
program occasionally postpones its civil case
until the criminal case is completed. The program
may also delay or even drop the civil case if a
tenant who appears to be permitting drug dealing
in his or her apartment turns out to be a
confidential informant in a criminal prosecution
or is cooperating with the police in connection
with an investigation (for example, of drug
dealing on the next block).

Support from the community. Robert Morgenthau has
said that "community interaction has been and will
continue to be an integral part of the Narcotics
Eviction Program." For example, Manhattan has 12
community boards that meet monthly to vote on land
use, sanitation, schooling, and criminal matters.
Someone from the district attorney's Community
Affairs Unit attends every board meeting and is
able to provide an update on program activities
with the community. Board members, in turn, bring
information about drug-trafficking operations to
the attention of the district attorney's
representative.

Program prosecutors and paralegals attend tenant
association and community meetings in which they
describe the program and explain how residents can
work with the program and police to try to rid
apartments or storefronts of drug operations.
According to a tenant association president, "The
word has gotten out that we don't have to testify
if we report the drug dealers."
Using a civil remedy. As First Assistant District
Attorney Barbara Jones puts it, "Using the Real
Property Actions and Proceedings Law was a way to
learn that there are other methods of getting at
criminals. There are civil remedies, and we have
to be prepared to try them."

In addition, the civil approach offers both a
tempting carrot and a powerful stick for the
landlord. The carrot: Eviction enables landlords
to raise the rent of a new tenant (rent control
and rent stabilization procedures in New York City
make it very difficult to increase the rents of
existing tenants). The stick: The civil court can
fine landlords $5,000 for refusing to act, and
landlords can be referred to the U.S. Attorney for
a forfeiture proceeding if they do not make a good
faith effort to force out drug dealers (see
"Federal Forfeiture Proceedings").

Using a special court. To expedite evictions, New
York City appointed one presiding judge to a
special part of the Manhattan civil court to
handle cases brought under the Narcotics Eviction
Program. As a result, cases are scheduled for
trial within 2-4 weeks after the first court
appearance. According to Gary Galperin, "This
special court is especially sensitive to the
welfare of law-abiding neighbors as well as the
rights of tenants whose eviction we're seeking."
Because of the disruption dealers create for
law-abiding tenants, the clerk's office gives
priority to scheduling Narcotics Eviction Program
cases for initial court dates. The clerk's office
also gives priority among the hundreds of cases it
processes each week to issuing program eviction
warrants.

High praise from the community. Perhaps the best
endorsement of the Narcotics Eviction Program
comes from the community members whose safety and
tranquility have been restored after a drug
trafficker's departure. Irving Hirsch, the
program's first head, likes to tell about the time
when two police officers were leaving an apartment
building right after they had evicted a
drug-dealing family. The officers, he said, were
pleasantly surprised when several other tenants
opened their apartment doors to applaud and give
them the thumbs-up sign.

According to the president of one tenant
organization, tenants are very verbal about how
delighted they are, "Our tenants said that whereas
once they were afraid to have a picnic on the
playground in their housing complex, now they feel
safer and are finally able to have one. We all
feel a little more relaxed because we know
something is being done. We're not just being fed
words and promises."
Notes
1 N.Y. County District Attorney's Office v.
Oquendo, 147 Misc.2d 125 (N.Y.C. Civ. Ct., N.Y.Co.
1990).
2 City of New York v. Wright, 162 Misc.2d 572
(App. Term, 1st Dept. 1994).

---------
Federal Forfeiture Proceedings 

When a landlord refuses to try to remove drug
dealers from a given building, the Narcotics
Eviction Program refers the case to the U.S.
Attorney for the Southern District of New York.
Usually, these referrals involve large apartment
buildings in which drug dealing is taking place in
several units. These uncooperative landlords may
consider the $5,000 fine allowed under the Real
Property Actions and Proceedings Law trivial, or
they may be receiving payoffs from the drug
dealers.

New York State's civil forfeiture statute does not
permit the State to seize buildings. However, a
Federal civil forfeiture statute (21 U.S.C. Section
881) enables the U.S. Attorney's Asset Forfeiture
Unit to force out drug dealers by seizing property
that is being used to commit a felony.
The Asset Forfeiture Unit selects its cases after
thorough investigation to ensure that there is
ample evidence to win a suit. As a result, a
Federal magistrate who was initially concerned that
the U.S. Attorney would not have enough evidence to
justify forfeiture of a property could report that
"In all the cases I have heard, the evidence has
always been overwhelming." 

The U.S. Attorney in New York focuses on buildings
in which several tenants are engaged in drug
dealing and the trafficking is disturbing other
residents. For instance, in one operation, 100 law
enforcement officers participated in the virtual
military takeover of a building in which drug
dealers were using 19 of 40 apartments to sell
drugs.

Pursuing the case. When the forfeiture unit decides
to pursue a case, the U.S. Attorney presents a
complaint to a Federal magistrate offering probable
cause to support civil forfeiture under Section
881. The U.S. Attorney then posts the court summons
and complaint at the building in question and mails
them to the landlord.

Most landlords, realizing they stand to lose their
property for good, negotiate a settlement. In the
typical settlement, the U.S. Attorney, having
already seized the property, enters into a 5-year
agreement with the landlord, who agrees to evict
the drug-dealing tenants, correct municipal code
violations, make improvements in lighting and
security, and refurbish the units as a condition of
getting the property back. The U.S. Marshal keeps
the rent money in an escrow account until the
property is returned. However, the property owner
must pay for the expenses of the entire seizure--in
one case, including payment of an armed guard at
the building for 3 months.

Occasionally, the landlord refuses to cooperate or
has abandoned the property. In such instances, the
U.S. Attorney takes legal ownership of the building
and enters into occupancy agreements with the
tenants, with the U.S. Marshal in effect becoming
the landlord. The marshal sells the property, and
the proceeds of the sale are deposited in the
Federal Asset Forfeiture Fund along with property
from other forfeiture cases nationwide involving
the U.S. Department of Justice. Much of this money-
-$12.6 million in 1993--is returned to U.S.
Attorneys around the country and to Federal and
local law enforcement agencies that participate in
forfeiture cases.

Since 1987, the unit has completed the seizure of
117 properties, including 8 commercial
establishments. Of these seized properties, 7 were
returned after settlement discussions, and 6 were
forfeited after trial. The remaining 104 properties
were either forfeited after the owners failed to
respond or are still in settlement discussions. As
of the end of 1993, the New York Asset Forfeiture
Unit had 101 active civil forfeiture cases
involving properties being used for drug dealing.
Advantages of Federal approach. A significant
advantage of the U.S. Attorney's civil approach is
the comparative ease and speed with which the
Government can rid private residential apartments
of drug dealing. What used to take 1-3 years in a
criminal prosecution now usually takes about 6
weeks. The lower burden of proof in large part
explains this speed. Although U.S.C. Section 881
requires the commission of an illegal act, the U.S.
Attorney does not have to convict anyone of a crime
in order to obtain a civil forfeiture.
Another advantage of civil forfeiture is that a
building can be taken over regardless of the
current status of the owner. Even if the owner is
dead, has fled, or cannot otherwise be reached, the
property remains forfeitable because the property
itself, and not any individual, is the defendant in
the suit.

According to a Federal judge who has heard several
forfeiture cases, "Extraordinary remedies are
needed in cases of drug dealing. Some people slip
through the criminal justice system, and this type
of repeat behavior is not being addressed because
no court looks at the totality of the offender's
record. Besides, the offender can be jailed after a
criminal trial and another family member simply
continues the business." Civil forfeiture can often
overcome these obstacles and put a stop to the
rampant drug trafficking in large apartment
buildings.
------------

Fruit Stand Sales

Employees of a deli supermarket were selling drugs
from a fruit stand on the sidewalk just outside the
store, keeping the drugs hidden under some melons.
Although the police had arrested one store
employee, the problem was not eliminated. The
supermarket owner was usually inside the store and
claimed he knew nothing about what was going on at
his fruit stand outside. The community was very
concerned and wanted action.
The Narcotics Eviction Program arranged a
settlement in which the court issued a warrant of
eviction but stayed its execution. The owner agreed
that if any more drug dealing occurred within 10
feet of the store perimeter, the district attorney
would seek to have the stay lifted and the owner
evicted. The police have since made a number of
undercover buys, observed numerous sales occurring
within the 10-feet limit, and made several arrests.
As a result, the program is seeking eviction.
-------

Housing Authority Welcomes the Program's
Assistance

More than 20 years ago, the New York City Housing
Authority entered into a consent decree with tenant
groups that requires the housing authority to
conduct an administrative hearing for those tenants
it attempts to evict on the grounds of undesirable
behavior--even tenants who have been convicted and
imprisoned. Because the hearing is lengthy, it
prevents the housing authority from complying with
the district attorney's request to evict tenants in
a timely manner.

Although the Narcotics Eviction Program officially
sues the housing authority in every case involving
public housing, the program never seeks penalties
or reimbursement fees from the authority. The
housing authority cooperates willingly with the
program to remove drug-trafficking tenants. In
fact, when the program began, the chairman of the
housing authority said he was delighted that the
district attorney was taking action to remove
drug-dealing tenants in his buildings. According to
Lawrence Roth, special counsel to the authority,
"The DA has blazed trails in this area in using the
Real Property Actions and Proceedings Law on a
systematic scale. We think the DA's done so in an
exemplary fashion."

Because the Narcotics Eviction Program has been so
successful, the housing authority is seeking a
Federal court ruling on whether the consent decree
prevents it from initiating eviction proceedings on
its own based on the Real Property Actions and
Proceedings Law. If the court rules that the
consent decree does not permit such action, the
authority plans to seek a modification of the
consent decree to permit the use of the civil
statute.
--------------

From the Landlord's Perspective

"One day," according to Steven Green, the owner of
a Manhattan apartment building, "the DA called me
and said there had been a drug-related arrest on my
property, and a week later I got a form letter with
all the details telling me what would happen if I
failed to evict the tenants. Actually, I already
suspected the tenant was dealing, and the letter
confirmed it. But I wasn't going to take any action
because the landlord-tenant courts are extremely
pro-tenant--you just can't get an eviction for a
tenant who continues to pay the rent. But the DA's
letter made clear I could get the dealers out
without a lot of time and money.

"So I sent the material to my attorney, who went to
court. We went to a special court that hears these
cases quickly. And the DA, not my attorney, made
the arrangements for the police officer to show up
to act as my witness.

"The dealer didn't show up at the court hearing,
but he did stay in the apartment until the very
last minute--until the marshal showed up--so he
could continue making money right up to the end. I
had to pay for my attorney's time, for the marshal,
and for the new locks, but the whole thing, from
the time I got the DA's letter to the eviction,
lasted only from January 4 to March 31. So it
really worked out well."
------------
Statutory Basis for Eviction

Section 715 of the New York State Real Property
Actions and Proceedings Law is the legal basis for
the District Attorney's Narcotics Eviction Program
to evict tenants from apartments or commercial
spaces where drug dealing is occurring. This law
was enacted in 1868 to abate "bawdy house"
activity, and Section 715 was amended in 1947 to
include "any illegal trade, business or
manufacture." Pertinent sections state:

An owner or tenant...of any premises within two
hundred feet from other...real property used or
occupied in whole or in part as a bawdy house...or
for any illegal trade, business or
manufacture...,or any duly authorized enforcement
agency of the state or of a subdivision
thereof...may serve personally upon the owner or
landlord of the premises so used or occupied, or
upon his agent, a written notice requiring the
owner or landlord to make an application for the
removal of the person so using or occupying the
same. If the owner or landlord or his agent does
not make such application within five days
thereafter; or, having made it, does not in good
faith diligently prosecute it, the person,
corporation or enforcement agency giving the notice
may bring a proceeding under this article for such
removal as though the petitioner were the owner or
landlord of the premises.... Proof of the ill
repute of the demised premises...or of those
resorting thereto shall constitute presumptive
evidence of the unlawful use of the demised
premises required to be stated in the petition for
removal. Both the person in possession of the
property and the owner or landlord shall be made
respondents in the proceeding. 

The statute covers other illegal businesses besides
drug dealing. The Narcotics Eviction Program has
used the law against prostitution, gambling,
weapons trafficking, and other criminal operations.
However, this report spotlights only the program's
principal focus--drug dealing.
----------
About This Study

This Program Focus was written by Peter Finn,
research associate at Abt Associates Inc. More
information on the issues of civil remedies as an
approach to enforcement is available in the Issues
and Practices report Using Civil Remedies for
Criminal Behavior: Rationale, Case Studies, and
Constitutional Issues, NCJ 151757, which can be
obtained from the National Criminal Justice
Reference Service. (Call 800-851-3420 or e-mail
askncjrs@ncjrs.aspensys.com) For further
information about the Narcotics Eviction Program,
contact Gary J. Galperin, Esq., Chief, or Ralph
Fabrizio, Esq., Deputy Chief, Special Projects
Bureau/Narcotics Eviction Program, Manhattan
District Attorney's Office, One Hogan Place, New
York, NY 10013, (212) 335-4370.

Findings and conclusions reported here are those of
the author and do not necessarily reflect the
official position or policies of the U.S.
Department of Justice.

The National Institute of Justice is a component of
the Office of Justice Programs, which also includes
the Bureau of Justice Assistance, Bureau of Justice
Statistics, Office of Juvenile Justice and
Delinquency Prevention, and the Office for Victims
of Crime.

NCJ 153146        May 1995