§ 460.30 Enterprise corruption; forfeiture.
1. Any person convicted of enterprise corruption may be required pursuant
to this section to criminally forfeit to the state:
(a) any interest in, security of, claim against or property or
contractual right of any kind affording a source of influence over any
enterprise whose affairs he has controlled or in which he has participated
in violation of subdivision one of section 460.20 of this article and for
which he was convicted and the use of which interest, security, claim or
right by him contributed directly and materially to the crime for which he
was convicted unless such forfeiture is disproportionate to the defendant's
gain from his association or employment with the enterprise, in which event
the jury may recommend forfeiture of a portion thereof;
(b) any interest, including proceeds, he has acquired or maintained in an
enterprise in violation of subdivision one of section 460.20 of this
article and for which he was convicted unless such forfeiture is
disproportionate to the conduct he engaged in and on which the forfeiture
is based, in which event the jury may recommend forfeiture of a portion
thereof; or
(c) any interest, including proceeds he has derived from an investment of
proceeds in an enterprise in violation of subdivision one of section 460.20
of this article and for which he was convicted unless such forfeiture is
disproportionate to the conduct he engaged in and on which the forfeiture
is based, in which event the jury may recommend forfeiture of a portion
thereof.
2. (a) Forfeiture may be ordered when the grand jury returning an
indictment charging a person with enterprise corruption has received
evidence legally sufficient to establish, and providing reasonable cause to
believe, that the property or other interest is subject to forfeiture under
this section. In that event, the grand jury shall file a special
information, not to be disclosed to the jury in the criminal action prior
to verdict on the criminal charges, specifying the property or other
interest 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 consented to
be prosecuted by superior court information pursuant to article one hundred
ninety-five of the criminal procedure law, the prosecutor may file, in
addition to the superior court information charging enterprise corruption,
a special information specifying the property or other interest for which
forfeiture is sought and containing a plain and concise factual statement
which sets forth the basis for the forfeiture.
(b) After returning a verdict of guilty on an enterprise corruption count
or counts, the jury shall be given the special information and hear any
additional evidence which is relevant and legally admissible upon the
forfeiture count or counts of the special information. After hearing such
evidence, the jury shall then deliberate upon the forfeiture count or
counts and, based upon all the evidence received in connection with the
indictment or superior court information and the special information, may,
if satisfied by proof beyond a reasonable doubt that the property or other
interest, or a portion thereof, is subject to forfeiture under this section
return a verdict determining such property or other interest, or portion
thereof, is subject to forfeiture, provided, however, where a defendant has
waived a jury trial pursuant to article three hundred twenty of the
criminal procedure law, the court may hear and receive all of the evidence
upon the indictment or superior court information and the special
information and render a verdict upon the enterprise corruption count or
counts and the forfeiture count or counts.
(c) 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 paragraph (a) of subdivision
one of this section, disproportionate to the defendant's gain from his
association or employment with the enterprise, or, with respect to a
forfeiture pursuant to paragraph (b) or (c) of subdivision one of this
section, disproportionate to the conduct he engaged in on which the
forfeiture is based. Upon such a finding the court may in the interests of
justice set aside, modify, limit or otherwise condition an order of
forfeiture.
3. (a) An order of criminal forfeiture shall authorize the prosecutor to
seize all property or other interest declared forfeited under this section
upon such terms and conditions as the court shall deem proper. If a
property right or other interest is not exercisable or transferable for
value by the prosecutor, it shall expire and shall not revert to the
convicted person. The court ordering any forfeiture may remit such
forfeiture or any portion thereof.
(b) No person shall forfeit any right, title or interest in any property
or enterprise under this article who has not been convicted of a violation
of section 460.20 of this article. Any person other than the convicted
person claiming an interest in forfeited property or other interest may
bring a special proceeding to determine that claim, before or after trial,
pursuant to section thirteen hundred twenty-seven of the civil practice law
and rules, provided, however, that if such an action is brought before
trial, it may, upon 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 in subdivision seven of section
thirteen hundred eleven of such law and rules.
4. All property and other interests which are criminally forfeited
following the commencement of an action under this article, whether by
plea, verdict or other agreement, shall be disposed of in accordance with
the provisions of section thirteen hundred forty-nine of the civil practice
law and rules. In any case where one or more of the counts upon which a
person is convicted specifically includes as a criminal act a violation of
any offense defined in article two hundred twenty of this chapter, the
court shall determine what portion of that property or interest derives
from or relates to such criminal act, and direct that distribution of that
portion be conducted in the manner prescribed for actions grounded upon
offenses in violation of article two hundred twenty.
5. Any person convicted of a violation of section 460.20 of this article
through which he derived pecuniary value, or by which he caused personal
injury or property damage or other loss, may be sentenced to pay a fine not
in excess of three times the gross value he gained or three times the gross
loss he caused, whichever is greater. Moneys so collected shall be paid as
restitution to victims of the crime for medical expenses actually incurred,
loss of earnings or property loss or damage caused thereby. Any excess
after restitution shall be paid to the state treasury. In any case where
one or more of the counts upon which a person is convicted specifically
includes as a criminal act a violation of any offense defined in article
two hundred twenty of this chapter, the court shall determine what
proportion of the entire pattern such criminal acts constitute and
distribute such portion in the manner prescribed by section three hundred
forty-nine of the civil practice law and rules for forfeiture actions
grounded upon offenses in violation of article two hundred twenty. When the
court imposes a fine pursuant to this subdivision, the court shall make a
finding as to the amount of the gross value gained or the gross loss
caused. If the record does not contain sufficient evidence to support such
a finding the court may conduct a hearing upon the issue. In imposing a
fine, the court shall consider the seriousness of the conduct, whether the
amount of the fine is disproportionate to the conduct in which he engaged,
its impact on victims and the enterprise corrupted by that conduct, as well
as the economic circumstances of the convicted person, including the effect
of the imposition of such a fine upon his immediate family.
6. The imposition of an order of criminal forfeiture pursuant to
subdivision one of this section, a judgment of civil forfeiture pursuant to
article thirteen-A of the civil practice law and rules, or a fine pursuant
to subdivision five of this section or paragraph (b) of subdivision one of
section 80.00 of this chapter, shall preclude the imposition of any other
such order or judgment of forfeiture or fine based upon the same criminal
conduct, provided however that where an order of criminal forfeiture is
imposed pursuant to subdivision one of this section, an action pursuant to
article thirteen-A of the civil practice law and rules may nonetheless be
brought, and an order imposed in that action, for forfeiture of the
proceeds of a crime or the substituted proceeds of a crime where such
proceeds are not subject to criminal forfeiture pursuant to subdivision one
of this section. The imposition of a fine pursuant to subdivision five of
this section or paragraph (b) of subdivision one of section 80.00 of this
chapter, shall preclude the imposition of any other fine pursuant to any
other provision of this chapter.
7. Other than as provided in subdivision six, the imposition of a
criminal penalty, forfeiture or fine under this section shall not preclude
the application of any other criminal penalty or civil remedy under this
article or under any other provision of law.
8. Any payment made as restitution to victims pursuant to this section
shall not limit, preclude or impair any liability for damages in any civil
action or proceeding for an amount in excess of such payment.
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