NY CPLR § 1311 (2021)
2021 New York Laws CVP - Civil Practice Law and Rules Article 13-A - Proceeds of a Crime-Forfeiture 1311 - Forfeiture Actions.

§  1311. Forfeiture actions. 1. A civil action may be commenced by the appropriate claiming authority against a criminal defendant  to  recover the  property which constitutes the proceeds of a crime, the substituted proceeds of a crime, an instrumentality of a crime or the real  property instrumentality  of  a  crime. A civil action may be commenced against a non-criminal defendant to recover the  property  which  constitutes  the proceeds   of   a  crime,  the  substituted  proceeds  of  a  crime,  an instrumentality of a crime, or the real property  instrumentality  of  a crime  provided,  however, that a judgment of forfeiture predicated upon clause (A) of subparagraph (iv) of paragraph (b) of subdivision three of this section shall be limited to the  amount  of  the  proceeds  of  the crime. Any action under this article must be commenced within five years of  the  commission  of  the  crime and shall be civil, remedial, and in personam in nature and shall not be deemed to be a penalty  or  criminal forfeiture  for  any purpose.  Except as otherwise specially provided by statute, the proceedings under this article shall be  governed  by  this chapter.  An  action under this article is not a criminal proceeding and may not be deemed to be a previous prosecution under  article  forty  of the criminal procedure law.  (a)  Actions  relating to post-conviction forfeiture crimes. An action relating to a post-conviction forfeiture crime must be grounded  upon  a conviction  of  a  felony  defined  in  subdivision  five of section one thousand three hundred ten of  this  article  or  upon  a  count  of  an indictment  or  information alleging a felony which was dismissed at the time of a plea of guilty to a felony in satisfaction of  such  count.  A court  may  not  grant  forfeiture  until  such conviction has occurred. However, an action may be commenced, and a court may grant a provisional remedy provided under this article,  prior  to  such  conviction  having occurred.  An  action under this paragraph must be dismissed at any time after sixty days of the commencement of the action unless the conviction upon which the action is grounded has  occurred,  or  an  indictment  or information upon which the asserted conviction is to be based is pending in  a  superior  court.  An  action under this paragraph shall be stayed during the pendency of  a  criminal  action  which  is  related  to  it; provided,  however,  that  such  stay  shall not prevent the granting or continuance of any provisional remedy provided under this article or any other provisions of law.  (b) Actions relating to pre-conviction forfeiture  crimes.  An  action relating  to a pre-conviction forfeiture crime need not be grounded upon conviction of a pre-conviction forfeiture crime, provided, however, that if the action is not grounded  upon  such  a  conviction,  it  shall  be necessary  in  the  action  for  the  claiming  authority  to  prove the commission of a pre-conviction forfeiture crime by clear and  convincing evidence.  An  action  under  this  paragraph shall be stayed during the pendency of a criminal action which is related  to  it;  provided,  that upon  motion  of  a  defendant  in the forfeiture action or the claiming authority, a court may, in the interest of justice and for  good  cause, and  with  the  consent of all parties, order that the forfeiture action proceed despite the pending criminal action; and provided that such stay shall not prevent the granting or continuance of any provisional  remedy provided under this article or any other provision of law.   2.  All  defendants  in  a  forfeiture action brought pursuant to this article shall have the right to trial by jury on any issue of fact.   3. In a forfeiture action  pursuant  to  this  article  the  following burdens of proof shall apply:  (a) In a forfeiture action commenced by a claiming authority against a criminal  defendant, except for those facts referred to in paragraph (b) of subdivision nine of  section  one  thousand  three  hundred  ten  and  paragaph  (b) of subdivision one of this section which must be proven by clear and convincing evidence, the burden shall  be  upon  the  claiming authority  to  prove  by  a  preponderance  of  the  evidence  the facts necessary to establish a claim for forfeiture.  (b) In a forfeiture action commenced by a claiming authority against a non-criminal defendant:  (i)  in  an  action relating to a pre-conviction forfeiture crime, the burden shall be upon the  claiming  authority  to  prove  by  clear  and convincing  evidence  the commission of the crime by a person, provided, however, that it shall not be necessary to prove the  identity  of  such person.  (ii)  if  the  action  relates  to  the proceeds of a crime, except as provided in subparagraph (i)  hereof,  the  burden  shall  be  upon  the claiming authority to prove by a preponderance of the evidence the facts necessary  to establish a claim for forfeiture and that the non-criminal defendant either (A) knew or should have known that  the  proceeds  were obtained through the commission of a crime, or (B) fraudulently obtained his or her interest in the proceeds to avoid forfeiture.  (iii)  if  the  action relates to the substituted proceeds of a crime, except as provided in subparagraph (i) hereof, the burden shall be  upon the  claiming  authority to prove by a preponderance of the evidence the facts necessary to  establish  a  claim  for  forfeiture  and  that  the non-criminal  defendant  either  (A)  knew  that  the  property  sold or exchanged to obtain an interest in the substituted proceeds was obtained through the commission of a crime, or (B) fraudulently obtained  his  or her interest in the substituted proceeds to avoid forfeiture.  (iv) if the action relates to an instrumentality of a crime, except as provided  for  in  subparagraph (i) hereof, the burden shall be upon the claiming authority to prove by a preponderance of the evidence the facts necessary to establish a claim for forfeiture and that the  non-criminal defendant  either (A) knew that the instrumentality was or would be used in the commission of a crime  or  (B)  knowingly  obtained  his  or  her interest in the instrumentality to avoid forfeiture.  (v)  if  the  action  relates  to a real property instrumentality of a crime, the burden shall be upon the claiming authority  to  prove  those facts  referred to in subdivision four-b of section thirteen hundred ten of this article by clear and convincing evidence. The claiming authority shall  also  prove  by  a  clear  and  convincing  evidence   that   the non-criminal  defendant knew that such property was or would be used for the commission of specified felony offenses, and  either  (A)  knowingly and unlawfully benefitted from such conduct or (B) voluntarily agreed to the  use of such property for the commission of such offenses by consent freely  given.  For  purposes  of  this  subparagraph,  a   non-criminal defendant  knowingly  and  unlawfully  benefits from the commission of a specified felony offense when he derives in exchange for permitting  the use or occupancy of such real property by a person or persons committing such  specified  offense  a substantial benefit that would otherwise not accrue as a result of the lawful use or occupancy of such real property. "Benefit" means benefit as defined in subdivision seventeen  of  section 10.00 of the penal law.  (c) In a forfeiture action commenced by a claiming authority against a non-criminal  defendant  the  following  rebuttable  presumptions  shall apply:  (i) a non-criminal defendant who did not pay  fair  consideration  for the  proceeds  of  a  crime,  the substituted proceeds of a crime or the instrumentality of a crime shall be presumed to know that such  property was  the proceeds of a crime, the substituted proceeds of a crime, or an instrumentality of a crime.  (ii) a non-criminal defendant who obtains an interest in the  proceeds of  a  crime, substituted proceeds of a crime or an instrumentality of a crime with knowledge of an order of provisional remedy relating to  said property issued pursuant to this article, shall be presumed to know that such  property  was  the  proceeds of a crime, substituted proceeds of a crime, or an instrumentality of a crime.  (iii) in an action relating to a post-conviction forfeiture  crime,  a non-criminal  defendant  who  the claiming authority proves by clear and convincing evidence has criminal liability under section  20.00  of  the penal  law  for the crime of conviction or for criminal activity arising from a common scheme or plan of which such  crime  is  a  part  and  who possesses  an  interest in the proceeds, the substituted proceeds, or an instrumentality of such criminal activity is presumed to know that  such property  was  the  proceeds  of  a crime, the substituted proceeds of a crime, or an instrumentality of a crime.  (iv) a non-criminal defendant who participated in or was  aware  of  a scheme  to  conceal  or  disguise  the manner in which said non-criminal obtained his or her interest in the proceeds  of  a  crime,  substituted proceeds  of  a  crime,  or an instrumentality of a crime is presumed to know that such property was the proceeds of  a  crime,  the  substituted proceeds of a crime, or an instrumentality of a crime.  (d) In a forfeiture action commenced by a claiming authority against a defendant,   the  following  rebuttable  presumption  shall  apply:  all currency or negotiable  instruments  payable  to  the  bearer  shall  be presumed  to  be  the proceeds of a pre-conviction forfeiture crime 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  unlawfully possessed by such defendant in a room, other than a public place, under circumstances  evincing  an  intent  to unlawfully  mix,  compound, distribute, package or otherwise prepare for sale such controlled substance.  (e) The presumption set  forth  pursuant  to  paragraph  (d)  of  this subdivision  shall  be  rebutted by credible and reliable evidence which tends to show that such currency or negotiable instrument payable to the bearer is not the proceeds of a preconviction forfeiture  crime.  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 the penal law. In an action tried before a jury, at the commencement of the  trial,  or at  such  other  time  as  the  court  reasonably  directs, the claiming authority shall provide notice to the court and to the defendant of  its intent to request that the court charge such presumption.   3-a.  Conviction  of  a person in a criminal action upon an accusatory instrument which includes one or  more  of  the  felonies  specified  in subdivision  four-b  of section thirteen hundred ten of this article, of any felony other than such felonies, shall not preclude a defendant,  in any subsequent proceeding under this article where that conviction is at issue, from adducing evidence that the conduct underlying the conviction would  not  establish  the  elements of any of the felonies specified in such subdivision other than the one to which the criminal defendant pled guilty. If the defendant does adduce such evidence, the burden shall  be upon  the claiming authority to prove, by clear and convincing evidence, that the conduct underlying the criminal conviction would establish  the  elements  of the felony specified in such subdivision. Nothing contained in this subdivision shall affect the validity of  a  settlement  of  any forfeiture  action  negotiated  between  the  claiming  authority  and a criminal defendant contemporaneously with the taking of a plea of guilty in a criminal action to any felony defined in article two hundred twenty of the penal law, or to a felony conspiracy to commit the same.   4.  The court in which a forfeiture action is pending may dismiss said action in the interests of justice  upon  its  own  motion  or  upon  an application as provided for herein.  (a)  At  any  time  during  the  pendency  of a forfeiture action, the claiming authority who instituted the action, or  a  defendant  may  (i) apply  for  an  order  dismissing  the  complaint  and  terminating  the forfeiture action in the interest of justice, or (ii) may apply  for  an order  limiting  the  forfeiture to an amount equivalent in value to the value of property constituting the proceeds or substituted proceeds of a crime in the interest of justice.  (b) Such application for the relief provided in paragraph  (a)  hereof must  be  made in writing and upon notice to all parties. The court may, in its discretion, direct that notice  be  given  to  any  other  person having an interest in the property.  (c) An application for the relief provided for in paragraph (a) hereof must  be  brought  exclusively  in  the  superior  court  in  which  the forfeiture action is pending.  (d) The court may grant the relief provided in paragraph (a) hereof if it finds that  such  relief  is  warranted  by  the  existence  of  some compelling  factor,  consideration  or  circumstance  demonstrating that forfeiture of the property of any part thereof, would not serve the ends of justice. Among the  factors,  considerations  and  circumstances  the court may consider, among others, are:  (i)  the  seriousness  and  circumstances  of  the  crime to which the property is connected relative to the impact of forfeiture  of  property upon the person who committed the crime; or  (ii)  the  adverse  impact  of  a forfeiture of property upon innocent persons; or  (iii) the appropriateness of a judgment of  forfeiture  in  an  action relating   to   pre-conviction   forfeiture  crime  where  the  criminal proceeding based on  the  crime  to  which  the  property  is  allegedly connected  results  in  an  acquittal  of  the  criminal  defendant or a dismissal of the accusatory instrument on the merits; or  (iv) in the case of an action relating to an instrumentality,  whether the  value of the instrumentality substantially exceeds the value of the property constituting the proceeds or substituted proceeds of a crime.  (e) The court must issue a written decision stating the basis  for  an order issued pursuant to this subdivision.   4-a.  (a)  The  court  in  which  a forfeiture action relating to real property is pending may, upon its own motion or upon the motion  of  the claiming  authority  which  instituted the action, the defendant, or any other person who has a lawful property interest in such property,  enter an order:  (i)  appointing  an  administrator  pursuant  to section seven hundred seventy-eight of the real property actions and proceedings law when  the owner  of a dwelling is a defendant in such action, and when persons who are not defendants in such action lawfully  occupy  one  or  more  units within  such dwelling, in order to maintain and preserve the property on behalf of such persons or any other person or entity who  has  a  lawful property  interest  in  such  property,  or in order to remedy any other condition which is dangerous to life, health or safety; or  (ii) otherwise limiting, modifying or dismissing the forfeiture action in order to preserve or protect the  lawful  property  interest  of  any non-criminal  defendant  or  any  other  person  who  is  not a criminal defendant, or the lawful property interest of a defendant which  is  not subject to forfeiture; or  (iii)  where  such action involves interest in a residential leasehold or a statutory tenancy, directing that  upon  entry  of  a  judgment  of forfeiture,  the lease or statutory tenancy will be modified as a matter of law to terminate only the interest of the  defendant  or  defendants, and  to continue the occupancy or tenancy of any other person or persons who lawfully reside in such demised premises, with such rights  as  such parties  would  otherwise  have  had if the defendant's interest had not been forfeited pursuant to this article.  (b) For purposes of this subdivision the term  "owner"  has  the  same meaning  as prescribed for that term in section seven hundred eighty-one of the real property actions and proceedings law and the term "dwelling" shall mean any  building  or  structure  or  portion  thereof  which  is principally occupied in whole or part as the home, residence or sleeping place of one or more human beings.   5.  An action for forfeiture shall be commenced by service pursuant to this chapter of a summons with notice or summons and verified complaint. No person shall forfeit any right, title, or interest  in  any  property who  is not a defendant in the action. The claiming authority shall also file a copy of such papers with the state division of  criminal  justice services;  provided,  however,  failure to file such papers shall not be grounds for any relief by a defendant in this section.   6. On the motion of any party to the forfeiture action, and  for  good cause  shown, a court may seal any papers, including those pertaining to any provisional remedy, which relate to the forfeiture action until such time as the property which is the subject of the forfeiture  action  has been  levied upon. A motion to seal such papers may be made ex parte and in camera.   7. Remission. In addition to any  other  relief  provided  under  this chapter,  at  any  time within one year after the entry of a judgment of forfeiture, any person, claiming an interest in the property subject  to forfeiture  who  did  not receive actual notice of the forfeiture action may petition the judge before whom the forfeiture action was held for  a remission  or  mitigation  of  the  forfeiture  and  restoration  of the property or the proceeds of any sale resulting from the  forfeiture,  or such  part thereof, as may be claimed by him. The court may restore said property upon such terms and conditions as it deems reasonable and  just if  (i)  the  petitioner  establishes  that he or she was without actual knowledge of the forfeiture action  or  any  related  proceeding  for  a provisional  remedy  and  did not know or should not have known that the forfeited property was connected to a crime or fraudulently conveyed and (ii) the court determines that restoration of the property  would  serve the ends of justice.   8.  The  total  amount that may be recovered by the claiming authority against all criminal  defendants  in  a  forfeiture  action  or  actions involving  the  same crime shall not exceed the value of the proceeds of the crime or substituted proceeds of  the  crime,  whichever  amount  is greater,  and,  in  addition, the value of any forfeited instrumentality used in the crime. Any such recovery against criminal defendants for the value of the proceeds of the crime or substituted proceeds of the  crime shall  be  reduced  by  an  amount  which  equals  the value of the same proceeds of the same crime or the same substituted proceeds of the  same crime  recovered  against all non-criminal defendants. Any such recovery for the value of an instrumentality of a crime shall be  reduced  by  an  amount  which  equals  the  value  of the same instrumentality recovered against any non-criminal defendant.   The  total  amount  that  may  be  recovered  against all non-criminal defendants in a forfeiture action or actions involving  the  same  crime shall  not  exceed  the  value  of  the  proceeds  of  the  crime or the substituted proceeds of the crime, whichever amount is greater, and,  in addition,  the value of any forfeited instrumentality used in the crime. Any such recovery against non-criminal defendants for the value  of  the proceeds  of  the  crime  or  substituted proceeds of the crime shall be reduced by an amount which equals the value of the proceeds of the crime or substituted proceeds of the  crime  recovered  against  all  criminal defendants.  A  judgment  against  a  non-criminal defendant pursuant to clause (A) of subparagraph (iv) of paragraph (b) of subdivision three of this section shall be limited to the  amount  of  the  proceeds  of  the crime.  Any  recovery  for  the value of an instrumentality of the crime shall  be  reduced  by  an  amount  equal  to  the  value  of  the  same instrumentality recovered against any criminal defendant.   9.   Any   defendant   in   a  forfeiture  action  who  knowingly  and intentionally conceals, destroys, dissipates, alters, removes  from  the jurisdiction,   or  otherwise  disposes  of,  property  specified  in  a provisional remedy ordered by the court or in a judgment  of  forfeiture in  knowing  contempt  of  said  order  or  judgment shall be subject to criminal liability and sanctions under sections 80.05 and 215.80 of  the penal law.   10. The proper venue for trial of an action for forfeiture is:  (a)  In the case of an action for post-conviction forfeiture commenced after conviction, the county where the conviction occurred.  (b) In all other cases, the county where a criminal prosecution  could be  commenced under article twenty of the criminal procedure law, or, in the case of an action commenced by the office  of  prosecution,  special narcotics  courts  of  the  city  of New York, under section one hundred seventy-seven-b of the judiciary law.   11. (a) Any stipulation or settlement agreement between the parties to a forfeiture action shall be filed with the clerk of the court in  which the forfeiture action is pending. No stipulation or settlement agreement shall  be  accepted  for filing unless it is accompanied by an affidavit from the claiming authority that written notice of  the  stipulation  or settlement agreement, including the terms of such, has been given to the office  of  victim  services,  the  state  division  of criminal justice services.  (b) No judgment or order of forfeiture shall be  accepted  for  filing unless  it  is  accompanied  by an affidavit from the claiming authority that written notice of judgment or order, including the terms  of  such, has  been  given to the office of victim services, the state division of criminal justice services.  (c) Any claiming  authority  or  claiming  agent  which  receives  any property  pursuant  to  chapter  thirteen  of the food and drug laws (21 U.S.C. §801 et seq.) of the United States and/or  chapter  four  of  the customs  duties  laws  (19  U.S.C.  §1301  et seq.) of the United States and/or chapter 96 of the crimes and criminal procedure laws  (18  U.S.C. §1961  et  seq.)  of the United States shall provide an affidavit to the commissioner of the division of criminal justice  services  stating  the estimated present value of the property received.  (d)   Any  stipulation,  settlement  agreement,  judgement,  order  or affidavit required to be given to the state division of criminal justice services pursuant to this subdivision shall include the defendant's name and such other demographic data as required by  the  state  division  of criminal justice services.    12.  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  and  subdivision  four  of section  one  thousand three hundred twelve of this article, "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 for legitimate legal representation.