§ 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.