District Attorneys can forfeit “proceeds” of crime and “instrumentalities” of crime except for real property in New York State’s Civil Asset Forfeiture Law. State prosecutors can only forfeit real property in certain drug cases. This is important to understand because this law means that state prosecutors do not hold the power to go after your home. Forfeiting “proceeds” refers to property that is an instrumentality of crime such as cash from a crime, real property, personal property, bank accounts, real estate, currency, and anything such as stocks, vehicles, clothing, electronics, jewelry.
New York State has no mechanism for criminal forfeiture other than New York Penal Law Article 480 which applies to convictions for felonies defined in Penal Law Article 220, or a felony of soliciting, conspiring, or attempting to commit such felony. Article 480 requires a much higher standard of proof beyond a reasonable doubt compared to Article 13-A which requires the prosecution to prove forfeitability at trial by a preponderance of the evidence.
New York’s Organized Crime Control Act of 1986 or OOCA is the other criminal forfeiture statute. OOCA defines the crime of Enterprise Corruption and provides for criminal and civil forfeiture. OOCA forfeiture requires the prosecution to prove its forfeiture case beyond a reasonable doubt. It permits the court to substitute its own factual findings to the jury. The prosecutor must present evidence to the jury that provides reasonable cause to believe the property is subject to forfeiture. The jury will make the decision to seek forfeiture of the property.
The court may order the prosecution to provide discovery related to the forfeiture aspects of the case, including the disclosure of relevant parts of the grand jury minutes under the current criminal forfeiture scheme. Criminal forfeiture statutes are rarely used by prosecutors. None of the state criminal forfeiture statutes provide for the forfeiture of the proceeds of misdemeanor offenses or the forfeiture of real property instrumentalities of non-drug-related felony offenses.
To conclude, prosecutors can demand forfeiture only by attaching a forfeiture stipulation as a condition of a plea offer. The District Attorney received forfeiture only in exchange for agreeing not to file a civil lawsuit pursuant to CPLC 13-A. Assistance District Attorneys are required to file a separate civil lawsuit against criminal defendants who chose not to take a plea. A District Attorney cannot forfeit your assets if you have been charged with a misdemeanor. A District Attorney’s office also cannot seize your real property if you use that property to commit a crime.
If you require the assistance of a New York criminal attorney who will fight for your rights, do not hesitate to reach out to our firm today to discuss our services and how we can provide for you and your case.
Kevin T. Conway has over 30 years of experience as a Spring Valley criminal attorney handling DUI, DWI, traffic violations, violent crimes, sex crimes, illegal gun possession, shoplifting, and juvenile crimes. Attorney Conway is also experienced in commercial law matters, zoning law, and estate planning. If you need a Rockland County criminal lawyer, contact our Spring Valley office for a free consultation.
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