N.Y. CPLR § 1311

NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only CPLR § 1311 Forfeiture actions. 1 § 1311. Forfeiture actions. 1. A civil action may be commenced by theappropriate claiming authority against a criminal defendant to recoverthe property which constitutes the proceeds of a crime, the substitutedproceeds of a crime, an instrumentality of a crime or the real propertyinstrumentality of a crime. A civil action may be commenced against anon-criminal defendant to recover the property which constitutes theproceeds of a crime, the substituted proceeds of a crime, aninstrumentality of a crime, or the real property instrumentality of acrime provided, however, that a judgment of forfeiture predicated uponclause (A) of subparagraph (iv) of paragraph (b) of subdivision three ofthis section shall be limited to the amount of the proceeds of thecrime. Any action under this article must be commenced within five yearsof the commission of the crime and shall be civil, remedial, and inpersonam in nature and shall not be deemed to be a penalty or criminalforfeiture for any purpose. Except as otherwise specially provided bystatute, the proceedings under this article shall be governed by thischapter. An action under this article is not a criminal proceeding andmay not be deemed to be a previous prosecution under article forty ofthe criminal procedure law.(a) Actions relating to post-conviction forfeiture crimes. An actionrelating to a post-conviction forfeiture crime must be grounded upon aconviction of a felony defined in subdivision five of section onethousand three hundred ten of this article or upon a count of anindictment or information alleging a felony which was dismissed at thetime of a plea of guilty to a felony in satisfaction of such count. Acourt may not grant forfeiture until such conviction has occurred.However, an acti ing a felony which was dismissed at thetime of a plea of guilty to a felony in satisfaction of such count. Acourt may not grant forfeiture until such conviction has occurred.However, an action may be commenced, and a court may grant a provisionalremedy provided under this article, prior to such conviction havingoccurred. An action under this paragraph must be dismissed at any timeafter sixty days of the commencement of the action unless the convictionupon which the action is grounded has occurred, or an indictment orinformation upon which the asserted conviction is to be based is pendingin a superior court. An action under this paragraph shall be stayedduring the pendency of a criminal action which is related to it;provided, however, that such stay shall not prevent the granting orcontinuance of any provisional remedy provided under this article or anyother provisions of law.(b) Actions relating to pre-conviction forfeiture crimes. An actionrelating to a pre-conviction forfeiture crime need not be grounded uponconviction of a pre-conviction forfeiture crime, provided, however, thatif the action is not grounded upon such a conviction, it shall benecessary in the action for the claiming authority to prove thecommission of a pre-conviction forfeiture crime by clear and convincingevidence. An action under this paragraph shall be stayed during thependency of a criminal action which is related to it; provided, thatupon motion of a defendant in the forfeiture action or the claimingauthority, a court may, in the interest of justice and for good cause,and with the consent of all parties, order that the forfeiture actionproceed despite the pending criminal action; and provided that such stayshall not prevent the granting or continuance of any provisional remedyprovided under this article or any other provision of law.2. All defendants in a forfeiture action brought pursuant to thisarticle sha prevent the granting or continuance of any provisional remedyprovided under this article or any other provision of law.2. All defendants in a forfeiture action brought pursuant to thisarticle shall have the right to trial by jury on any issue of fact.3. In a forfeiture action pursuant to this article the followingburdens of proof shall apply:(a) In a forfeiture action commenced by a claiming authority against acriminal defendant, except for those facts referred to in paragraph (b)of subdivision nine of section one thousand three hundred ten andparagaph (b) of subdivision one of this section which must be proven byclear and convincing evidence, the burden shall be upon the claimingauthority to prove by a preponderance of the evidence the factsnecessary to establish a claim for forfeiture.(b) In a forfeiture action commenced by a claiming authority against anon-criminal defendant:(i) in an action relating to a pre-conviction forfeiture crime, theburden shall be upon the claiming --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only authority to prove by clear andconvincing evidence the commission of the crime by a person, provided,however, that it shall not be necessary to prove the identity of suchperson.(ii) if the action relates to the proceeds of a crime, except asprovided in subparagraph (i) hereof, the burden shall be upon theclaiming authority to prove by a preponderance of the evidence the factsnecessary to establish a claim for forfeiture and that the non-criminaldefendant either (A) knew or should have known that the proceeds wereobtained through the commission of a crime, or (B) fraudulently obtainedhis 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 uponthe claiming authority to oceeds 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 uponthe claiming authority to prove by a preponderance of the evidence thefacts necessary to establish a claim for forfeiture and that thenon-criminal defendant either (A) knew that the property sold orexchanged to obtain an interest in the substituted proceeds was obtainedthrough the commission of a crime, or (B) fraudulently obtained his orher interest in the substituted proceeds to avoid forfeiture.(iv) if the action relates to an instrumentality of a crime, except asprovided for in subparagraph (i) hereof, the burden shall be upon theclaiming authority to prove by a preponderance of the evidence the factsnecessary to establish a claim for forfeiture and that the non-criminaldefendant either (A) knew that the instrumentality was or would be usedin the commission of a crime or (B) knowingly obtained his or herinterest in the instrumentality to avoid forfeiture.(v) if the action relates to a real property instrumentality of acrime, the burden shall be upon the claiming authority to prove thosefacts referred to in subdivision four-b of section thirteen hundred tenof this article by clear and convincing evidence. The claiming authorityshall also prove by a clear and convincing evidence that thenon-criminal defendant knew that such property was or would be used forthe commission of specified felony offenses, and either (A) knowinglyand unlawfully benefitted from such conduct or (B) voluntarily agreed tothe use of such property for the commission of such offenses by consentfreely given. For purposes of this subparagraph, a non-criminaldefendant knowingly and unlawfully benefits from the commission of aspecified felony offense when he derives in exchange for permitting theuse or occupancy of such real property by a person o efendant knowingly and unlawfully benefits from the commission of aspecified felony offense when he derives in exchange for permitting theuse or occupancy of such real property by a person or persons committingsuch specified offense a substantial benefit that would otherwise notaccrue as a result of the lawful use or occupancy of such real property."Benefit" means benefit as defined in subdivision seventeen of section10.00 of the penal law.(c) In a forfeiture action commenced by a claiming authority against anon-criminal defendant the following rebuttable presumptions shallapply:(i) a non-criminal defendant who did not pay fair consideration forthe proceeds of a crime, the substituted proceeds of a crime or theinstrumentality of a crime shall be presumed to know that such propertywas the proceeds of a crime, the substituted proceeds of a crime, or aninstrumentality of a crime.(ii) a non-criminal defendant who obtains an interest in the proceedsof a crime, substituted proceeds of a crime or an instrumentality of acrime with knowledge of an order of provisional remedy relating to saidproperty issued pursuant to this article, shall be presumed to know thatsuch property was the proceeds of a crime, substituted proceeds of acrime, or an instrumentality of a crime.(iii) in an action relating to a post-conviction forfeiture crime, anon-criminal defendant who the claiming authority proves by clear andconvincing evidence has criminal liability under section 20.00 of thepenal law for the crime of conviction or for criminal activity arisingfrom a common scheme or plan of which such crime is a part and whopossesses an interest in the proceeds, the substituted proceeds, or aninstrumentality of such criminal activity is presumed to know that suchproperty was the proceeds of a crime, the substituted proceeds of acrime, or an instrumentality of a crime.(iv) a non-criminal defendant who parti minal activity is presumed to know that suchproperty was the proceeds of a crime, the substituted proceeds of acrime, or an instrumentality of a crime.(iv) a non-criminal defendant who participated in or was aware of ascheme to conceal or disguise the manner in which said non-criminalobtained his or her interest in the proceeds of a crime, substitutedproceeds of a crime, or an instrumentality of a crime is presumed toknow that such property was the proceeds of a crime, the substitutedproceeds of a crime, or an instrumentality of a crime.(d) In a forfeiture action commenced by a claiming authority against adefendant, the following rebuttable presumption shall apply: allcurrency or negotiable instruments payable to the bearer shall bepresumed to be the proceeds of a pre-conviction forfeiture CPLR § 1311 Page 2 --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only crime whensuch currency or negotiable instruments are (i) found in close proximityto a controlled substance unlawfully possessed by the defendant in anamount sufficient to constitute a violation of section 220.18 or 220.21of the penal law, or (ii) found in close proximity to any quantity of acontrolled substance unlawfully possessed by such defendant in a room,other than a public place, under circumstances evincing an intent tounlawfully mix, compound, distribute, package or otherwise prepare forsale such controlled substance.(e) The presumption set forth pursuant to paragraph (d) of thissubdivision shall be rebutted by credible and reliable evidence whichtends to show that such currency or negotiable instrument payable to thebearer is not the proceeds of a preconviction forfeiture crime. In anaction tried before a jury, the jury shall be so instructed. Any sworntestimony of a defendant offered to rebut the presumption and any otherevidence which is obtained as eiture crime. In anaction tried before a jury, the jury shall be so instructed. Any sworntestimony of a defendant offered to rebut the presumption and any otherevidence which is obtained as a result of such testimony, shall beinadmissible in any subsequent proceeding relating to the forfeitureaction, or in any other civil or criminal action, except in aprosecution 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, orat such other time as the court reasonably directs, the claimingauthority shall provide notice to the court and to the defendant of itsintent to request that the court charge such presumption.3-a. Conviction of a person in a criminal action upon an accusatoryinstrument which includes one or more of the felonies specified insubdivision four-b of section thirteen hundred ten of this article, ofany felony other than such felonies, shall not preclude a defendant, inany subsequent proceeding under this article where that conviction is atissue, from adducing evidence that the conduct underlying the convictionwould not establish the elements of any of the felonies specified insuch subdivision other than the one to which the criminal defendant pledguilty. If the defendant does adduce such evidence, the burden shall beupon the claiming authority to prove, by clear and convincing evidence,that the conduct underlying the criminal conviction would establish theelements of the felony specified in such subdivision. Nothing containedin this subdivision shall affect the validity of a settlement of anyforfeiture action negotiated between the claiming authority and acriminal defendant contemporaneously with the taking of a plea of guiltyin a criminal action to any felony defined in article two hundred twentyof the penal law, or to a felony conspiracy to commit the same.4. The court in which a forfeiture acti a plea of guiltyin a criminal action to any felony defined in article two hundred twentyof the penal law, or to a felony conspiracy to commit the same.4. The court in which a forfeiture action is pending may dismiss saidaction in the interests of justice upon its own motion or upon anapplication as provided for herein.(a) At any time during the pendency of a forfeiture action, theclaiming authority who instituted the action, or a defendant may (i)apply for an order dismissing the complaint and terminating theforfeiture action in the interest of justice, or (ii) may apply for anorder limiting the forfeiture to an amount equivalent in value to thevalue of property constituting the proceeds or substituted proceeds of acrime in the interest of justice.(b) Such application for the relief provided in paragraph (a) hereofmust be made in writing and upon notice to all parties. The court may,in its discretion, direct that notice be given to any other personhaving an interest in the property.(c) An application for the relief provided for in paragraph (a) hereofmust be brought exclusively in the superior court in which theforfeiture action is pending.(d) The court may grant the relief provided in paragraph (a) hereof ifit finds that such relief is warranted by the existence of somecompelling factor, consideration or circumstance demonstrating thatforfeiture of the property of any part thereof, would not serve the endsof justice. Among the factors, considerations and circumstances thecourt may consider, among others, are:(i) the seriousness and circumstances of the crime to which theproperty is connected relative to the impact of forfeiture of propertyupon the person who committed the crime; or(ii) the adverse impact of a forfeiture of property upon innocentpersons; or(iii) the appropriateness of a judgment of forfeiture in an actionrelating to pre-conviction forfeiture crime whe r(ii) the adverse impact of a forfeiture of property upon innocentpersons; or(iii) the appropriateness of a judgment of forfeiture in an actionrelating to pre-conviction forfeiture crime where the criminalproceeding based on the crime to which the property is allegedlyconnected results in an acquittal of the criminal defendant or adismissal of the accusatory instrument CPLR § 1311 Page 3 --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only on the merits; or(iv) in the case of an action relating to an instrumentality, whetherthe value of the instrumentality substantially exceeds the value of theproperty constituting the proceeds or substituted proceeds of a crime.(e) The court must issue a written decision stating the basis for anorder issued pursuant to this subdivision.4-a. (a) The court in which a forfeiture action relating to realproperty is pending may, upon its own motion or upon the motion of theclaiming authority which instituted the action, the defendant, or anyother person who has a lawful property interest in such property, enteran order:(i) appointing an administrator pursuant to section seven hundredseventy-eight of the real property actions and proceedings law when theowner of a dwelling is a defendant in such action, and when persons whoare not defendants in such action lawfully occupy one or more unitswithin such dwelling, in order to maintain and preserve the property onbehalf of such persons or any other person or entity who has a lawfulproperty interest in such property, or in order to remedy any othercondition which is dangerous to life, health or safety; or(ii) otherwise limiting, modifying or dismissing the forfeiture actionin order to preserve or protect the lawful property interest of anynon-criminal defendant or any other person who is not a criminaldefendant, or the lawful property interest of feiture actionin order to preserve or protect the lawful property interest of anynon-criminal defendant or any other person who is not a criminaldefendant, or the lawful property interest of a defendant which is notsubject to forfeiture; or(iii) where such action involves interest in a residential leaseholdor a statutory tenancy, directing that upon entry of a judgment offorfeiture, the lease or statutory tenancy will be modified as a matterof law to terminate only the interest of the defendant or defendants,and to continue the occupancy or tenancy of any other person or personswho lawfully reside in such demised premises, with such rights as suchparties would otherwise have had if the defendant's interest had notbeen forfeited pursuant to this article.(b) For purposes of this subdivision the term "owner" has the samemeaning as prescribed for that term in section seven hundred eighty-oneof the real property actions and proceedings law and the term "dwelling"shall mean any building or structure or portion thereof which isprincipally occupied in whole or part as the home, residence or sleepingplace of one or more human beings.5. An action for forfeiture shall be commenced by service pursuant tothis chapter of a summons with notice or summons and verified complaint.No person shall forfeit any right, title, or interest in any propertywho is not a defendant in the action. The claiming authority shall alsofile a copy of such papers with the state division of criminal justiceservices; provided, however, failure to file such papers shall not begrounds for any relief by a defendant in this section.6. On the motion of any party to the forfeiture action, and for goodcause shown, a court may seal any papers, including those pertaining toany provisional remedy, which relate to the forfeiture action until suchtime as the property which is the subject of the forfeiture action hasbeen levi y papers, including those pertaining toany provisional remedy, which relate to the forfeiture action until suchtime as the property which is the subject of the forfeiture action hasbeen levied upon. A motion to seal such papers may be made ex parte andin camera.7. Remission. In addition to any other relief provided under thischapter, at any time within one year after the entry of a judgment offorfeiture, any person, claiming an interest in the property subject toforfeiture who did not receive actual notice of the forfeiture actionmay petition the judge before whom the forfeiture action was held for aremission or mitigation of the forfeiture and restoration of theproperty or the proceeds of any sale resulting from the forfeiture, orsuch part thereof, as may be claimed by him. The court may restore saidproperty upon such terms and conditions as it deems reasonable and justif (i) the petitioner establishes that he or she was without actualknowledge of the forfeiture action or any related proceeding for aprovisional remedy and did not know or should not have known that theforfeited property was connected to a crime or fraudulently conveyed and(ii) the court determines that restoration of the property would servethe ends of justice.8. The total amount that may be recovered by the claiming authorityagainst all criminal defendants in a forfeiture action or actionsinvolving the same crime shall not exceed the value of the proceeds ofthe crime or substituted proceeds of the crime, whichever amount isgreater, and, in addition, the value of any forfeited instrumentalityused in the crime. Any such recovery against criminal defendants for thevalue of the proceeds of the crime or substituted proceeds of the crimeshall be reduced by an amount which equals the value of the sameproceeds of the same crime or the same substituted proceeds of the samecrime recovered against all non-criminal defend he crimeshall be reduced by an amount which equals the value of the sameproceeds of the same crime or the same substituted proceeds of the samecrime recovered against all non-criminal defendants. Any such recoveryfor the value of an instrumentality of a crime shall be reduced by anamount which equals the value of the same instrumentality recoveredagainst any CPLR § 1311 Page 4 --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only non-criminal defendant.The total amount that may be recovered against all non-criminaldefendants in a forfeiture action or actions involving the same crimeshall not exceed the value of the proceeds of the crime or thesubstituted proceeds of the crime, whichever amount is greater, and, inaddition, the value of any forfeited instrumentality used in the crime.Any such recovery against non-criminal defendants for the value of theproceeds of the crime or substituted proceeds of the crime shall bereduced by an amount which equals the value of the proceeds of the crimeor substituted proceeds of the crime recovered against all criminaldefendants. A judgment against a non-criminal defendant pursuant toclause (A) of subparagraph (iv) of paragraph (b) of subdivision three ofthis section shall be limited to the amount of the proceeds of thecrime. Any recovery for the value of an instrumentality of the crimeshall be reduced by an amount equal to the value of the sameinstrumentality recovered against any criminal defendant.9. Any defendant in a forfeiture action who knowingly andintentionally conceals, destroys, dissipates, alters, removes from thejurisdiction, or otherwise disposes of, property specified in aprovisional remedy ordered by the court or in a judgment of forfeiturein knowing contempt of said order or judgment shall be subject tocriminal liability and sanctions under sections 80.05 and 215 ional remedy ordered by the court or in a judgment of forfeiturein knowing contempt of said order or judgment shall be subject tocriminal liability and sanctions under sections 80.05 and 215.80 of thepenal law.10. The proper venue for trial of an action for forfeiture is:(a) In the case of an action for post-conviction forfeiture commencedafter conviction, the county where the conviction occurred.(b) In all other cases, the county where a criminal prosecution couldbe commenced under article twenty of the criminal procedure law, or, inthe case of an action commenced by the office of prosecution, specialnarcotics courts of the city of New York, under section one hundredseventy-seven-b of the judiciary law.11. (a) Any stipulation or settlement agreement between the parties toa forfeiture action shall be filed with the clerk of the court in whichthe forfeiture action is pending. No stipulation or settlement agreementshall be accepted for filing unless it is accompanied by an affidavitfrom the claiming authority that written notice of the stipulation orsettlement agreement, including the terms of such, has been given to theoffice of victim services, the state division of criminal justiceservices.(b) No judgment or order of forfeiture shall be accepted for filingunless it is accompanied by an affidavit from the claiming authoritythat written notice of judgment or order, including the terms of such,has been given to the office of victim services, the state division ofcriminal justice services.(c) Any claiming authority or claiming agent which receives anyproperty pursuant to chapter thirteen of the food and drug laws (21U.S.C. §801 et seq.) of the United States and/or chapter four of thecustoms duties laws (19 U.S.C. §1301 et seq.) of the United Statesand/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 thec aws (19 U.S.C. §1301 et seq.) of the United Statesand/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 thecommissioner of the division of criminal justice services stating theestimated present value of the property received.(d) Any stipulation, settlement agreement, judgement, order oraffidavit required to be given to the state division of criminal justiceservices pursuant to this subdivision shall include the defendant's nameand such other demographic data as required by the state division ofcriminal justice services.12. Property acquired in good faith by an attorney as payment for thereasonable and bona fide fees of legal services or reimbursement ofreasonable and bona fide expenses related to the representation of adefendant in connection with a civil or criminal forfeiture proceedingor a related criminal matter, shall be exempt from a judgment offorfeiture. For purposes of this subdivision and subdivision four ofsection one thousand three hundred twelve of this article, "bona fide"means that the attorney who acquired such property had no reasonablebasis to believe that the fee transaction was a fraudulent or shamtransaction designed to shield property from forfeiture, hide itsexistence from governmental investigative agencies, or was conducted forany purpose other than for legitimate legal representation. CPLR § 1311 Page 5