§ 480.10 Procedure.
1. After the grand jury votes to file an indictment charging a person
with a felony offense as that term is defined in section 480.00 of this
article, it may subsequently receive evidence that property is subject to
forfeiture under this article. If such evidence is legally sufficient and
provides reasonable cause to believe that such property is subject to
forfeiture under this article, the grand jury shall file together with the
indictment a special forfeiture information specifying the property for
which forfeiture is sought and containing a plain and concise factual
statement which sets forth the basis for the forfeiture. Alternatively,
where the defendant has waived indictment and has consented to be
prosecuted for a felony offense by superior court information pursuant to
article one hundred ninety-five of the criminal procedure law, the
prosecutor may, in addition to the superior court information, file a
special forfeiture information specifying the property for which the
forfeiture is sought and containing a plain and concise factual statement
which sets forth the basis for the forfeiture.
2. At any time before entry of a plea of guilty to an indictment or
commencement of a trial thereof, the prosecutor may file a superseding
special forfeiture information in the same court in accordance with the
provisions of subdivision one of this section. Upon the filing of such a
superseding forfeiture information the court must, upon application of the
defendant, order any adjournment of the proceedings which may, by reason of
such superseding special forfeiture information, be necessary to accord the
defendant adequate opportunity to prepare his defense of the forfeiture
action.
3. A motion to inspect and reduce made pursuant to section 210.20 of the
criminal procedure law may seek modification of a special forfeiture
information dismissing a claim with respect to any property interest
therein where the court finds the evidence before the grand jury was
legally insufficient to support a claim against such interest.
4. The prosecutor shall promptly file a copy of the special forfeiture
information, including the terms thereof, with the state division of
criminal justice services and with the local agency responsible for
criminal justice planning. Failure to file such information shall not be
grounds for any relief under this chapter.
5. In addition to information required to be disclosed pursuant to
article two hundred forty of the criminal procedure law, when forfeiture is
sought pursuant to this article, and following the defendant's arraignment
on the special forfeiture information, the court shall order discovery of
any information not otherwise disclosed which is material and reasonably
necessary for preparation by the defendant with respect to a forfeiture
proceeding brought pursuant to this article. Such material shall include
those portions of the grand jury minutes and such other information which
pertain solely to the special forfeiture information and shall not include
information which pertains to the criminal charges. Upon application of the
prosecutor, the court may issue a protective order pursuant to section
240.40 of the criminal procedure law with respect to any information
required to be disclosed pursuant to this subdivision.
6. (a) Trial of forfeiture counts by jury or by the court. Evidence which
relates solely to the issue of forfeiture shall not be presented during the
trial on the underlying felony offense or specified felony offense, and the
defendant shall not be required to present such evidence prior to the
verdict on such offense. A defendant who does not present evidence in his
defense with respect to the trial of the underlying offense is not
precluded on account thereof from presenting evidence during the trial of
the forfeiture count or counts.
(b) Trial of forfeiture counts by the jury. After returning a verdict of
guilty of a felony offense or specified felony offense, or where the
defendant has pled guilty to a felony offense or a specified felony offense
and has not waived a jury trial of the forfeiture count or counts pursuant
to article three hundred twenty of the criminal procedure law, the jury
shall be given the forfeiture information and shall hear any additional
evidence which is relevant and legally admissible upon the forfeiture count
or counts. After hearing such evidence, the jury shall then deliberate
upon the forfeiture count or counts, and based upon all the evidence
admitted in connection with the indictment or superior court information
and the forfeiture information, may, if satisfied by proof beyond a
reasonable doubt that the property, or a portion thereof, is subject to
forfeiture pursuant to this article, return a verdict directing that such
property, or portion thereof, is subject to forfeiture.
(c) Trial of forfeiture counts by the court. Where a defendant has waived
a jury trial of the forfeiture count or counts pursuant to article three
hundred twenty of the criminal procedure law, the court shall hear all
evidence upon the forfeiture information and may, if satisfied by proof
beyond a reasonable doubt that the property, or a portion thereof, is
subject to forfeiture under this article, render a verdict determining that
such property, or a portion thereof, is subject to forfeiture under this
article.
(d) After the verdict of forfeiture, the court shall hear arguments and
may receive additional evidence upon a motion of the defendant that the
verdict of forfeiture (i) is against the weight of the evidence, or (ii)
is, with respect to a forfeiture pursuant to this article, disproportionate
to the defendant's gain from the offense, or the defendant's interest in
the property, or the defendant's participation in the conduct upon which
the forfeiture is based. Upon such a finding, the court may in the interest
of justice set aside, modify, limit or otherwise condition the verdict of
forfeiture.
7. A final judgment or order of forfeiture issued pursuant to this
article shall authorize the prosecutor to seize all property directed to be
forfeited under this article upon such terms and conditions as the court
deems proper. If a property right is not exercisable or transferable for
value by the prosecutor, it shall expire and shall not revert to the
convicted person.
8. Where the forfeited property consists of real property, the court may
at any time prior to a verdict of forfeiture, enter an order pursuant to
subdivision four-a of section thirteen hundred eleven of the civil practice
law and rules.
9. No person shall forfeit any right, title, or interest in any property
under this article who has not been convicted of a felony offense or
specified felony offense, as the case may be. Any person claiming an
interest in property subject to forfeiture may institute a special
proceeding to determine that claim, before or after the trial, pursuant to
section thirteen hundred twenty-seven of the civil practice law and rules;
provided, however, that if such special proceeding is initiated before
trial on the forfeiture count or counts, it may, upon written motion of the
prosecutor, and in the court's discretion, be postponed by the court until
completion of the trial. In addition, any person claiming an interest in
property subject to forfeiture may petition for remission as provided for
in subdivision seven of section thirteen hundred eleven of the civil
practice law and rules.
10. Testimony of the defendant or evidence derived therefrom introduced
in the trial of the forfeiture count may not be used by the prosecution in
any post-trial motion proceedings, appeals, or retrials relating to the
defendant's criminal liability for the underlying criminal offense unless
the defendant has previously referred to such evidence in such post-trial
proceeding, appeal, or retrial relating to the underlying offense and the
evidence is presented by the prosecutor in response thereto. Upon vacatur
or reversal on appeal of a judgment of conviction upon which a verdict of
forfeiture is based, any verdict of forfeiture which is based upon such
conviction shall also be vacated or reversed.
NYSentencing