§ 480.10 Procedure.
1. After the grand jury votes to file an indictment charging a person
with a felony offense as that term is defined in section 480.00 of this
article, it may subsequently receive evidence that property is subject
to forfeiture under this article. If such evidence is legally sufficient
and provides reasonable cause to believe that such property is subject
to forfeiture under this article, the grand jury shall file together
with the indictment a special forfeiture information specifying the
property 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 has
consented to be prosecuted for a felony offense by superior court
information pursuant to article one hundred ninety-five of the criminal
procedure law, the prosecutor may, in addition to the superior court
information, file a special forfeiture information specifying the
property for which the forfeiture is sought and containing a plain and
concise factual statement which sets forth the basis for the forfeiture.
2. At any time before entry of a plea of guilty to an indictment or
commencement of a trial thereof, the prosecutor may file a superseding
special forfeiture information in the same court in accordance with the
provisions of subdivision one of this section. Upon the filing of such a
superseding forfeiture information the court must, upon application of
the defendant, order any adjournment of the proceedings which may, by
reason of such superseding special forfeiture information, be necessary
to accord the defendant adequate opportunity to prepare his defense of
the forfeiture action.
3. A motion to inspect and reduce made pursuant to section 210.20 of
the criminal procedure law may seek modification of a special forfeiture
information dismissing a claim with respect to any property interest
therein where the court finds the evidence before the grand jury was
legally insufficient to support a claim against such interest.
4. The prosecutor shall promptly file a copy of the special forfeiture
information, including the terms thereof, with the state division of
criminal justice services and with the local agency responsible for
criminal justice planning. Failure to file such information shall not be
grounds for any relief under this chapter.
5. In addition to information required to be disclosed pursuant to
article two hundred forty of the criminal procedure law, when forfeiture
is sought pursuant to this article, and following the defendant’s
arraignment on the special forfeiture information, the court shall order
discovery of any information not otherwise disclosed which is material
and reasonably necessary for preparation by the defendant with respect
to a forfeiture proceeding brought pursuant to this article. Such
material shall include those portions of the grand jury minutes and such
other information which pertain solely to the special forfeiture
information and shall not include information which pertains to the
criminal charges. Upon application of the prosecutor, the court may
issue a protective order pursuant to section 240.40 of the criminal
procedure law with respect to any information required to be disclosed
pursuant to this subdivision.
6. (a) Trial of forfeiture counts by jury or by the court. Evidence
which relates solely to the issue of forfeiture shall not be presented
during the trial on the underlying felony offense or specified felony
offense, and the defendant shall not be required to present such
evidence prior to the verdict on such offense. A defendant who does not
present evidence in his defense with respect to the trial of the
underlying offense is not precluded on account thereof from presenting
evidence during the trial of the forfeiture count or counts.
(b) Trial of forfeiture counts by the jury. After returning a verdict
of guilty of a felony offense or specified felony offense, or where the
defendant has pled guilty to a felony offense or a specified felony
offense and has not waived a jury trial of the forfeiture count or
counts pursuant to article three hundred twenty of the criminal
procedure law, the jury shall be given the forfeiture information and
shall hear any additional evidence which is relevant and legally
admissible upon the forfeiture count or counts. After hearing such
evidence, the jury shall then deliberate upon the forfeiture count or
counts, and based upon all the evidence admitted in connection with the
indictment or superior court information and the forfeiture information,
may, if satisfied by proof beyond a reasonable doubt that the property,
or a portion thereof, is subject to forfeiture pursuant to this article,
return a verdict directing that such property, or portion thereof, is
subject to forfeiture.
(c) Trial of forfeiture counts by the court. Where a defendant has
waived a jury trial of the forfeiture count or counts pursuant to
article three hundred twenty of the criminal procedure law, the court
shall hear all evidence upon the forfeiture information and may, if
satisfied by proof beyond a reasonable doubt that the property, or a
portion thereof, is subject to forfeiture under this article, render a
verdict determining that such property, or a portion thereof, is subject
to forfeiture under this article.
(d) 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 this article,
disproportionate to the defendant’s gain from the offense, or the
defendant’s interest in the property, or the defendant’s participation
in the conduct upon which the forfeiture is based. Upon such a finding,
the court may in the interest of justice set aside, modify, limit or
otherwise condition the verdict of forfeiture.
7. A final judgment or order of forfeiture issued pursuant to this
article shall authorize the prosecutor to seize all property directed to
be forfeited under this article upon such terms and conditions as the
court deems proper. If a property right is not exercisable or
transferable for value by the prosecutor, it shall expire and shall not
revert to the convicted person.
8. Where the forfeited property consists of real property, the court
may at any time prior to a verdict of forfeiture, enter an order
pursuant to subdivision four-a of section thirteen hundred eleven of the
civil practice law and rules.
9. No person shall forfeit any right, title, or interest in any
property under this article who has not been convicted of a felony
offense or specified felony offense, as the case may be. Any person
claiming an interest in property subject to forfeiture may institute a
special proceeding to determine that claim, before or after the trial,
pursuant to section thirteen hundred twenty-seven of the civil practice
law and rules; provided, however, that if such special proceeding is
initiated before trial on the forfeiture count or counts, it may, upon
written 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 for in subdivision seven of section
thirteen hundred eleven of the civil practice law and rules.
10. Testimony of the defendant or evidence derived therefrom
introduced in the trial of the forfeiture count may not be used by the
prosecution in any post-trial motion proceedings, appeals, or retrials
relating to the defendant’s criminal liability for the underlying
criminal offense unless the defendant has previously referred to such
evidence in such post-trial proceeding, appeal, or retrial relating to
the underlying offense and the evidence is presented by the prosecutor
in response thereto. Upon vacatur or reversal on appeal of a judgment of
conviction upon which a verdict of forfeiture is based, any verdict of
forfeiture which is based upon such conviction shall also be vacated or
reversed.
