§ 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.
