SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

653 

KA 10-00800 

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ISAIAH MCCOY, DEFENDANT-APPELLANT. 

 

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (ROBERT TUCKER OF COUNSEL),

FOR DEFENDANT-APPELLANT. 

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Ontario County Court (Frederick G.

Reed, A.J.), rendered March 17, 2010. The judgment convicted

defendant, upon his plea of guilty, of criminal sale of a controlled

substance in the third degree and criminal possession of a controlled

substance in the third degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified as a matter of discretion in the interest of

justice by vacating the forfeiture of $5,000 and as modified the

judgment is affirmed. 

Memorandum: On appeal from a judgment convicting him upon his

guilty plea of criminal sale of a controlled substance in the third

degree (Penal Law § 220.39 [1]) and criminal possession of a

controlled substance in the third degree (§ 220.16 [1]), defendant

contends that County Court erred in allowing the People to condition

their plea offer upon his ability to provide $5,000 in forfeiture

funds for the City of Geneva Police Department. We agree, and we

therefore modify the judgment accordingly. 

Defendant was arrested after he sold cocaine to a police

informant for $80. The sale was observed by an undercover officer who

provided the informant with the buy money, and the police pulled over

defendant’s vehicle as he was driving away from the apartment where

the sale occurred. Before pulling over his vehicle, defendant threw

cocaine out the window. The police recovered that cocaine and charged

defendant with both the sale and possession of a controlled substance. 

Prior to defendant’s entry of a plea to counts one and two of the

indictment in satisfaction of the remaining counts, the prosecutor

stated the terms of the plea offer on the record. With respect to

sentencing, the prosecutor stated that, if defendant “could come up
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KA 10-00800 

with $5,000 in cash that he would forfeit,” he would be sentenced as a

second felony offender to concurrent terms of five years in prison and

three years of postrelease supervision. The prosecutor further

stated, “If he does not come up with the $5,000 cash,” or if he failed

to appear for sentencing or was re-arrested, “then all bets would be

off and [the court] might be inclined to give him 10 years in prison.” 

Defendant was also asked to forfeit the vehicle he was driving when he

was arrested. The court then asked defendant whether he wished to

accept the plea offer, and defendant responded in the affirmative. 

Before accepting the plea, the court noted that defendant’s aunt had

posted $5,000 in cash for defendant’s bail, and inquired whether that

“might be the source of the funds” to be forfeited. “That’s

possible,” defense counsel answered, “and if it is, I’ll prepare the

necessary paperwork to have that happen.” Defendant proceeded to

plead guilty. 

At sentencing, the bailor signed over the bail money to the

Geneva Police Department, and defendant executed a “Waiver and

Assignment” form (waiver form). In the waiver form, defendant

acknowledged that he may become liable for the forfeiture of $5,000

and his vehicle due to his “action,” and stated that, to avoid a

lawsuit filed against him pursuant to CPLR article 13, he agreed to

forfeit $5,000 and his vehicle to the Geneva Police Department. 

Defendant also agreed in the waiver form to waive his right to

challenge the forfeiture on appeal or in a collateral proceeding. 

Before imposing the agreed-upon sentence, the court expressed its

appreciation to defendant for making amends for his crime “by making

restitution, the waivers, so forth.” The court was apparently

referring to the forfeiture, inasmuch as the People did not request

restitution and defendant did not agree to pay it. According to the

presentence report, the only request for restitution came from the

arresting officer, who sought the return of the $80 obtained by

defendant from the informant in the controlled drug transaction. 

Nevertheless, the certificate of conviction states that defendant was

ordered to pay restitution of $5,000. On appeal, defendant asks us to

vacate the forfeiture of funds. He does not challenge the forfeiture

of his vehicle. 

As a preliminary matter, we note that no order or judgment of

forfeiture was issued by the court. In addition, there is no

indication in the record that the People filed the waiver form with

the clerk of the court along with “an affidavit from the claiming

authority that written notice of the stipulation or settlement

agreement, including the terms of such,” was given to the office of

victim services, the state division of criminal justice services and

the state division of substance abuse services, as required by CPLR

1311 (11) (a). It thus does not appear that the People complied with

the civil forfeiture procedures set forth in CPLR article 13-A, nor

did the People comply with the criminal forfeiture procedures set

forth in Penal Law article 480.

Apart from the procedural irregularities, however, is the absence

of any apparent nexus between defendant’s crimes and the forfeited
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KA 10-00800 

funds. Pursuant to CPLR article 13-A, a district attorney or attorney

general, as “the appropriate claiming authorit[ies],” may recover from

a criminal defendant money or property that constitutes the proceeds,

substituted proceeds, or an instrumentality of a crime or the real

property instrumentality of a crime (CPLR 1311 [1]; see Kuriansky v

Bed-Stuy Health Care Corp., 135 AD2d 160, 164, affd 73 NY2d 875; Hynes

v Iadarola, 221 AD2d 131, 133-134; see also Penal Law § 480.05 [1]). 

Under CPLR 1311 (1) (a), the proceeds of “criminal activity arising

from a common scheme or plan of which [the defendant’s criminal]

conviction is a part” are also subject to forfeiture (CPLR 1311 [1]

[a]). “CPLR article 13-A is based on the ‘fundamental equitable

principle’ . . . that ‘[n]o one shall be permitted to profit by [that

person’s] own fraud, or to take advantage of [that person’s] own

wrong, or to found any claim upon [that person’s] own iniquity, or to

acquire property by [that person’s] own crime’ ” (Hynes, 221 AD2d at

133-134). 

Here, the forfeited funds were not the proceeds of the crimes

with which defendant was charged, nor is there any indication that the

funds were derived from uncharged criminal activity in which defendant

engaged. Defendant did not possess the funds when he was arrested

and, in fact, it appears from the record that the forfeited funds did

not belong to him but to the person who posted bail on his behalf. 

Notably, the People do not contend otherwise. Rather, they rely

solely on the waiver form, contending that defendant thereby waived

his right to appeal with respect to the forfeiture. We reject that

contention. In our view, it cannot be said that defendant voluntarily

signed the waiver form given that the People, with the court’s

imprimatur, essentially threatened to double his sentence if he failed

to do so. We thus conclude that the waiver of the right to challenge

the forfeiture on appeal is invalid (see generally People v Lopez, 6

NY3d 248, 256). 

With respect to the merits, we conclude under the circumstances

of this case that the forfeiture should be vacated and the funds

returned to the bailor. The conditioning of defendant’s sentence upon

his ability to procure funds for forfeiture creates an unacceptable

appearance of impropriety, i.e., that funds were extorted from

defendant or the person who posted his bail by threatening defendant

with a more severe sentence. It may also appear that defendant was

allowed to “buy” a more lenient sentence by donating money to the

local police department. 

We recognize that forfeiture may be a lawful component of a

negotiated plea agreement under certain circumstances not present here

(see People v Abruzzese, 30 AD3d 219, lv denied 7 NY3d 784; People v

Sczepankowski, 293 AD2d 212, lv denied 99 NY2d 564). In Abruzzese and

Sczepankowski, however, the money forfeited was seized from the

defendants when they were arrested. Here, as noted, the forfeited

funds have no apparent relation to defendant’s crimes, which in turn

gives rise to the aforementioned appearance of impropriety. We

therefore vacate the forfeiture, without prejudice to the People’s

commencement of an action for forfeiture pursuant to CPLR article 13-A

within the applicable statute of limitations (see CPLR 1311 [1]). 
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KA 10-00800 

Finally, we reject defendant’s remaining contention that the

sentence is unduly harsh or severe. 

Entered: June 29, 2012 Frances E. Cafarell

Clerk of the Court