By Steven L. Kessler

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Publication date: April 1999

New York Criminal and Civil Forfeitures is an invaluable publication for all New York attorneys. Steven L. Kessler practices white-collar criminal law in New York. Prior to entering private practice, Mr. Kessler was head of the Asset Forfeiture Unit of the Bronx District Attorney's Office in New York, where he supervised and litigated all phases of forfeiture and related matters. He has written and lectured extensively on topics relating to forfeiture. Mr. Kessler is also the author of Civil and Criminal Forfeiture: Federal and State Practice (Clark Boardman Callaghan).

This new publication presents an in-depth guide and analysis of the state forfeiture and RICO laws used by state and local law enforcement authorities to confiscate and forfeit the assets of individuals and corporations. Sections on the Public Health Law, Vehicle and Traffic Law, and Penal Law are discussed, along with the effect of plea bargaining, the use of precommencement subpoenas, burdens of proof and presumptions, forfeiture for felony aggravated unlicensed operate of a motor vehicle, and the forfeiture of real property as an instrumentality of a crime in felony narcotics and marijuana cases. Sample forms of both prosecutors and defense counsel are also included.

New York Criminal and Civil Forfeitures

Table of Contents

16.01 Introduction

16.02 Nature of the Statute: CPLR Article 13-A

1. Generally

2. Definition of Terms: Section 1310

a. The Forfeiture Action: Preconviction or Postconviction

b. The Forfeiture Defendant: Criminal or Noncriminal

c. The Forfeited Property

d. Forfeiture of Real Property As an Instrumentality of a Crime in Felony Narcotics and Marijuana Cases

3. Scope of the Action: Section 1310

a. Jurisdiction and Preliminary Issues

b. Effect of Plea Bargaining

c. Summary Judgement

d. Recoverable Property

e. Use of Precommencement Subpoenas: Section 1311-a

4. Provisional Remedies: Sections 1313-1348

a. Scope of Provisional Remedies

b. Elements of Provisional Remedies

i. Attachment

ii. Preliminary Injunction/Temporary Restraining Order

iii. Temporary Receivership

iv. Notice of Pendency

c. Other Considerations

5. Burden of Proof and Presumptions

6. "Interest of Justice" Relief: Section 1311(4)

7. Prosecutorial Liability

8. Limitations on Recovery

9. Disposition o Forfeited Assets: Section 1349

10. Constitutional Isssues and Article 13-A

16.03 Penal Law Article 480

16.04 Public Health Law Sections 3387 & 3388

16.05 Administrative Code Section 14-140

1. Introduction: A 14-140 Story

2. The Statue and Constitutional Issues

3. Rules of Construction

16.06 Penal Law Article 460: "Baby Rico"

1. Introduction

2. Historical Background

3. OCCA's Legislative Hisotry and Some Basic Procedures

4. Essential Statutory Provisions

a. The Requisite Elements

i. Legitimate and Criminal Enterprise

ii. Pattern

iii. Participation

iv. Criminal Activity

b. Statutory Limitations

5. Forfeiture under OCCA

a. Civil Versus Criminal Forfeiture

b. Criminal Forfeiture

c. Civil Forfeiture

6. Case Law under OCCA

7. Conclusion

16.07 Vehicle and Traffic Law Section 511-b

1. Forfeiture for Felony Aggravated Unlicensed

Operation of a Motor Vehicle

a. Seizure and Custody of Vehicles

b. Notice to Owner

c. Responsible Official

d. Forfeiture Procedure

e. Application of CPLR Article 13-A

f. Release of Vehicle

g. Additional Requirements

h. Stolen or Leased Vehicles

i. Release of Vehicle Where Forfeiture Proceedings Have Been Commenced

j. Failure to Demand Return of Vehicle Constitutes Abandonment

k. Termination of Criminal Proceedings Defined

l. Notice Service Requirement

m. Service Upon Claimants/Owners and Lienholders

n. Assertion of Ownership of Security Interest-Procedure

o. Burden of Proof Where Intervenor Asserts Security Interest

p. Forfeiture -- Affirmative Defenses

q. Dismissal in the Interests of Justice

r. Determination of Motion to Dismiss

s. Disposition of Forfeited Vehicles

t. Lienholders and Other Third Parties' Interest Limited

u. Failure to Notify Claimant--Two-Year Statute of Limitations

v. Action for Wrongful Seizure--Two-Year Statute of Limitations

16.08 Eviction Proceedings Under Real Property Law Section 231(j) & Real Property Actions & Proceedings Law, Sections 711(5) and 715

16.09 Forms

16.10 Statutes

Hardcover looseleaf binder

Compact 5 1/2" x 8 1/2" page size--Approximately 500 pages

Comprehensive Easy Reference Guide

Only $39.95

Order today from Gould Publications 800-847-6502