Additional Rules Governing Asset Forfeiture in the State of New York
While Article 13-A of the Civil Practice Law and Rules (CPLR) serves as the primary source of guidelines for asset forfeiture, there are additional statutes that may impact specific cases or circumstances. Steven L. Kessler and his associates aim to provide you with a thorough understanding of these regulations that govern the seizure and forfeiture of assets in New York. By familiarizing yourself with these statutes and seeking the guidance of an experienced asset forfeiture attorney like Mr. Kessler, you will be well-equipped to protect your rights and navigate the complex landscape of New York’s asset forfeiture laws.
To schedule a consultation with Steven L. Kessler to discuss the particulars of your New York asset forfeiture case, please call (888) 708-6009 today.
Public Health Law
Sections 3387 and 3388 of the New York Public Health Law are civil in rem forfeiture statutes that were enacted prior to the passage of Article 13-A. Section 3387 relates to the seizure and forfeiture of controlled substances, imitation controlled substances, and official New York State prescription forms. Section 3388 governs the seizure and forfeiture of vehicles, vessels, or aircraft unlawfully used to conceal, convey, or transport controlled substances. These seizures and forfeitures appear to be available under the provisions of Article 13-A as well, making the Public Health Law sections duplicative at best. In any event, sections 3387 and 3388 remain on the books.
Unlike Article 13-A, these Public Health Law forfeiture provisions are limited in scope. They proscribe transportation, possession, and concealment of controlled substances and the facilitation of those violations by means of any vehicle, vessel, or aircraft. Although the forfeiture proceedings authorized by sections 3387 and 3388 are civil in nature, the Appellate Division has classified them as punitive for purposes of Eighth Amendment analysis.
Penal Law Article 480
New York has a criminal forfeiture statute codified in Article 480 of the Penal Law. Forfeiture under the statute is limited to controlled substance felonies. Like civil forfeiture under Article 13-A, there can be no forfeiture unless there is a conviction. Unlike civil forfeiture, however, where the criminal charges are prosecuted in a separate proceeding, criminal forfeiture under Article 480 is part of the criminal case, although the forfeiture component of the case is not tried until after the criminal charges are resolved. And unlike civil forfeiture, the standard of proof required for criminal forfeiture is beyond a reasonable doubt, not a preponderance of the evidence. If the prosecutor satisfies that burden, however, the statute permits the forfeiture of the proceeds, substituted proceeds, instrumentalities, or real property instrumentalities of the crime, just as in civil forfeiture under Article 13-A.
The Administrative Code of the City of New York
The City of New York has its own civil forfeiture ordinance, codified in section 14-140 of the New York City Administrative Code. This provision has had a long and tortured history of being challenged in both federal and state court. After decades of court decisions declaring portions of the ordinance unconstitutional, the City eventually repaired some of its flaws in the Rules of the Property Clerk of the City of New York.
Highlights of the Property Clerk Rules include a requirement that the police put in writing why they are holding seized property, at least whether it is being held as “arrest evidence” or for ‘safekeeping’ or some other reason unrelated to the arrest resulting in the seizure. The Rules include procedures requiring the City to provide the owner with notice of how to seek the return of the seized property pending the outcome of forfeiture or criminal proceedings. The Rules also impose a deadline on the City for commencing forfeiture proceedings.
While still flawed and vague on key points, these rules are an improvement on what came before and provide the property owner with greater rights and more opportunities to secure the release of property seized by the City of New York.
Penal Law Article 460
Like many other states, New York followed the lead of Congress after it enacted the Racketeer Influence and Corrupt Organizations Act, or RICO, in 1970. New York’s version, enacted in 1986, is the Organized Crime Control Act, known by a less catchy acronym, OCCA. It is codified in Article 460 of the Penal Law.
While prosecutions under federal RICO quickly expanded to encompass a far broader range of criminal activity than organized crime, the New York legislature sought through careful drafting to limit OCCA’s applicability to organized criminal enterprises that could not be prosecuted under existing state law. These limitations include unique evidentiary and procedural requirements that impose additional burdens on the prosecutor both to commence an OCCA proceeding and to secure a conviction. The statute also seeks to ensure that ‘small fish’ are not joined in an OCCA case and that parties are severed from the prosecution when necessary to limit prejudice.
Further, unlike federal RICO, OCCA requires the prosecution, in proving the existence of a criminal enterprise, to prove that the defendants shared a “common purpose” in an “ascertainable structure” with a continuity and criminal purpose beyond individual criminal acts. Nevertheless, OCCA is intended, and has been applied, to reach legitimate businesses that satisfy the statute’s structural requirements.
Finally, both civil and criminal forfeiture are available in OCCA proceedings. While both require an enterprise corruption conviction, criminal forfeiture is sought within the OCCA proceeding itself, while a civil forfeiture OCCA claim is asserted in a separate civil proceeding pursuant to CPLR Article 13-B and is usually brought directly against the property alleged to be the proceeds or instrumentality of the criminal enterprise.
Other forfeiture provisions are scattered throughout the laws of the State of New York. They include Penal Law Article 410, authorizing the forfeiture of equipment used for the promotion of pornography; Penal Law Article 415, which permits forfeiture of vehicles, vessels, and aircraft used to transport or conceal gambling records; Penal Law Article 420, authorizing the forfeiture of equipment used in the production of unauthorized sound recordings; Section 477-a of the Tax Law, for forfeiture of vehicles used to transport contraband in violation of the tax laws, and provisions dealing with the forfeiture of stolen property, including section 450.10 of the Penal Law, sections 254 and 255 of the Personal Property Law and section 1310 of the Abandoned Property Law.
Steven L. Kessler can help you navigate your asset forfeiture case. Call (888) 708-6009 or fill out our online request form to schedule a consultation.