Section 1311. Forfeiture actions

1. A civil action may be commenced by the
  appropriate claiming authority against a criminal defendant  to  recover
  the  property which constitutes the proceeds of a crime, the substituted
  proceeds of a crime, an instrumentality of a crime or the real  property
  instrumentality  of  a crime or to recover a money judgment in an amount
  equivalent in value to the property which constitutes the proceeds of  a
  crime,  the  substituted  proceeds  of  a crime, an instrumentality of a
  crime, or the real property instrumentality of a crime.  A civil  action
  may  be  commenced  against  a  non-criminal  defendant  to  recover the
  property which constitutes the proceeds  of  a  crime,  the  substituted
  proceeds of a crime, an instrumentality of a crime, or the real property
  instrumentality  of  a  crime  provided,  however,  that  a  judgment of
  forfeiture predicated upon clause (A) of subparagraph (iv) of  paragraph
  (b)  of  subdivision  three hereof shall be limited to the amount of the
  proceeds of the crime. Any action under this article must  be  commenced
  within  five  years  of  the commission of the crime and shall be civil,
  remedial, and in personam in nature and shall not  be  deemed  to  be  a
  penalty  or  criminal  forfeiture  for  any purpose. Except as otherwise
  specially provided by statute, the proceedings under this article  shall
  be  governed  by  this  chapter.  An  action under this article is not a
  criminal proceeding and may not be deemed to be a  previous  prosecution
  under article forty of the criminal procedure law.
    (a)  Actions  relating to post-conviction forfeiture crimes. An action
  relating to a post-conviction forfeiture crime must be grounded  upon  a
  conviction  of  a  felony  defined  in  subdivision  five of section one
  thousand three hundred ten of this article, or  upon  criminal  activity
  arising  from  a  common  scheme or plan of which such a conviction is a
  part, or upon a count of an indictment or information alleging a  felony
  which  was  dismissed  at  the  time  of a plea of guilty to a felony in
  satisfaction of such count. A court may not grant forfeiture until  such
  conviction  has  occurred.  However,  an  action may be commenced, and a
  court may grant a provisional remedy provided under this article,  prior
  to such conviction having occurred.  An action under this paragraph must
  be  dismissed  at  any  time after sixty days of the commencement of the
  action unless the conviction upon  which  the  action  is  grounded  has
  occurred,  or  an  indictment  or  information  upon  which the asserted
  conviction is to be based is pending in  a  superior  court.  An  action
  under  this  paragraph shall be stayed during the pendency of a criminal
  action which is related to it; provided, however, that such  stay  shall
  not  prevent  the  granting  or  continuance  of  any provisional remedy
  provided under this article or any other provisions of law.
    (b) Actions relating to pre-conviction forfeiture  crimes.  An  action
  relating  to a pre-conviction forfeiture crime need not be grounded upon
  conviction of a pre-conviction forfeiture crime, provided, however, that
  if the action is not grounded  upon  such  a  conviction,  it  shall  be
  necessary  in  the  action  for  the  claiming  authority  to  prove the
  commission of a pre-conviction forfeiture crime by clear and  convincing
  evidence.  An  action  under  this  paragraph shall be stayed during the
  pendency of a criminal action which is related  to  it;  provided,  that
  upon  motion  of  a  defendant  in the forfeiture action or the claiming
  authority, a court may, in the interest of justice and for  good  cause,
  and  with  the  consent of all parties, order that the forfeiture action
  proceed despite the pending criminal action; and provided that such stay
  shall not prevent the granting or continuance of any provisional  remedy
  provided under this article or any other provision of law.
    2.  All  defendants  in  a  forfeiture action brought pursuant to this
  article shall have the right to trial by jury on any issue of fact.

    3. In a forfeiture action  pursuant  to  this  article  the  following
  burdens of proof shall apply:
    (a) In a forfeiture action commenced by a claiming authority against a
  criminal  defendant, except for those facts referred to in paragraph (b)
  of subdivision nine of  section  one  thousand  three  hundred  ten  and
  paragaph  (b) of subdivision one of this section which must be proven by
  clear and convincing evidence, the burden shall  be  upon  the  claiming
  authority  to  prove  by  a  preponderance  of  the  evidence  the facts
  necessary to establish a claim for forfeiture.
    (b) In a forfeiture action commenced by a claiming authority against a
  non-criminal defendant:
    (i) in an action relating to a pre-conviction  forfeiture  crime,  the
  burden  shall  be  upon  the  claiming  authority  to prove by clear and
  convincing evidence the commission of the crime by a  person,  provided,
  however,  that  it  shall not be necessary to prove the identity of such
  person.
    (ii) if the action relates to the  proceeds  of  a  crime,  except  as
  provided  in  subparagraph  (i)  hereof,  the  burden  shall be upon the
  claiming authority to prove by a preponderance of the evidence the facts
  necessary to establish a claim for forfeiture and that the  non-criminal
  defendant  either  (A)  knew or should have known that the proceeds were
  obtained through the commission of a crime, or (B) fraudulently obtained
  his or her interest in the proceeds to avoid forfeiture.
    (iii) if the action relates to the substituted proceeds  of  a  crime,
  except  as provided in subparagraph (i) hereof, the burden shall be upon
  the claiming authority to prove by a preponderance of the  evidence  the
  facts  necessary  to  establish  a  claim  for  forfeiture  and that the
  non-criminal defendant  either  (A)  knew  that  the  property  sold  or
  exchanged to obtain an interest in the substituted proceeds was obtained
  through  the  commission of a crime, or (B) fraudulently obtained his or
  her interest in the substituted proceeds to avoid forfeiture.
    (iv) if the action relates to an instrumentality of a crime, except as
  provided for in subparagraph (i) hereof, the burden shall  be  upon  the
  claiming authority to prove by a preponderance of the evidence the facts
  necessary  to establish a claim for forfeiture and that the non-criminal
  defendant either (A) knew that the instrumentality was or would be  used
  in  the  commission  of  a  crime  or  (B) knowingly obtained his or her
  interest in the instrumentality to avoid forfeiture.
    (v) if the action relates to a  real  property  instrumentality  of  a
  crime,  the  burden  shall be upon the claiming authority to prove those
  facts referred to in subdivision four-b of section thirteen hundred  ten
  of this article by clear and convincing evidence. The claiming authority
  shall   also   prove  by  a  clear  and  convincing  evidence  that  the
  non-criminal defendant knew that such property was or would be used  for
  the  commission  of  specified felony offenses, and either (A) knowingly
  and unlawfully benefitted from such conduct or (B) voluntarily agreed to
  the use of such property for the commission of such offenses by  consent
  freely   given.  For  purposes  of  this  subparagraph,  a  non-criminal
  defendant knowingly and unlawfully benefits from  the  commission  of  a
  specified  felony offense when he derives in exchange for permitting the
  use or occupancy of such real property by a person or persons committing
  such specified offense a substantial benefit that  would  otherwise  not
  accrue as a result of the lawful use or occupancy of such real property.
  "Benefit"  means  benefit as defined in subdivision seventeen of section
  10.00 of the penal law.
    (c) In a forfeiture action commenced by a claiming authority against a
  non-criminal  defendant  the  following  rebuttable  presumptions  shall
  apply:

    (i)  a  non-criminal  defendant who did not pay fair consideration for
  the proceeds of a crime, the substituted proceeds  of  a  crime  or  the
  instrumentality  of a crime shall be presumed to know that such property
  was the proceeds of a crime, the substituted proceeds of a crime, or  an
  instrumentality of a crime.
    (ii)  a non-criminal defendant who obtains an interest in the proceeds
  of a crime, substituted proceeds of a crime or an instrumentality  of  a
  crime  with knowledge of an order of provisional remedy relating to said
  property issued pursuant to this article, shall be presumed to know that
  such property was the proceeds of a crime,  substituted  proceeds  of  a
  crime, or an instrumentality of a crime.
    (iii)  in  an action relating to a post-conviction forfeiture crime, a
  non-criminal defendant who the claiming authority proves  by  clear  and
  convincing  evidence  has  criminal liability under section 20.00 of the
  penal law for the crime of conviction or for criminal  activity  arising
  from  a  common  scheme  or  plan  of which such crime is a part and who
  possesses an interest in the proceeds, the substituted proceeds,  or  an
  instrumentality  of such criminal activity is presumed to know that such
  property was the proceeds of a crime,  the  substituted  proceeds  of  a
  crime, or an instrumentality of a crime.
    (iv)  a  non-criminal  defendant who participated in or was aware of a
  scheme to conceal or disguise the  manner  in  which  said  non-criminal
  obtained  his  or  her  interest in the proceeds of a crime, substituted
  proceeds of a crime, or an instrumentality of a  crime  is  presumed  to
  know  that  such  property  was the proceeds of a crime, the substituted
  proceeds of a crime, or an instrumentality of a crime.
    (d) In a forfeiture action commenced by a claiming authority against a
  defendant,  the  following  rebuttable  presumption  shall  apply:   all
  currency  or  negotiable  instruments  payable  to  the  bearer shall be
  presumed to be the proceeds of a pre-conviction  forfeiture  crime  when
  such currency or negotiable instruments are (i) found in close proximity
  to  a  controlled  substance unlawfully possessed by the defendant in an
  amount sufficient to constitute a violation of section 220.18 or  220.21
  of  the penal law, or (ii) found in close proximity to any quantity of a
  controlled substance or marihuana unlawfully possessed by such defendant
  in a room, other than a public place, under  circumstances  evincing  an
  intent  to  unlawfully  mix,  compound, distribute, package or otherwise
  prepare for sale such controlled substance or marihuana.
    (e) The presumption set  forth  pursuant  to  paragraph  (d)  of  this
  subdivision  shall  be  rebutted by credible and reliable evidence which
  tends to show that such currency or negotiable instrument payable to the
  bearer is not the proceeds of a preconviction forfeiture  crime.  In  an
  action  tried  before a jury, the jury shall be so instructed. Any sworn
  testimony of a defendant offered to rebut the presumption and any  other
  evidence  which  is  obtained  as  a  result of such testimony, shall be
  inadmissible in any subsequent proceeding  relating  to  the  forfeiture
  action,  or  in  any  other  civil  or  criminal  action,  except  in  a
  prosecution for a violation of article two hundred ten of the penal law.
  In an action tried before a jury, at the commencement of the  trial,  or
  at  such  other  time  as  the  court  reasonably  directs, the claiming
  authority shall provide notice to the court and to the defendant of  its
  intent to request that the court charge such presumption.
    3-a.  Conviction  of  a person in a criminal action upon an accusatory
  instrument which includes one or  more  of  the  felonies  specified  in
  subdivision  four-b  of section thirteen hundred ten of this article, of
  any felony other than such felonies, shall not preclude a defendant,  in
  any subsequent proceeding under this article where that conviction is at
  issue, from adducing evidence that the conduct underlying the conviction

  would  not  establish  the  elements of any of the felonies specified in
  such subdivision other than the one to which the criminal defendant pled
  guilty. If the defendant does adduce such evidence, the burden shall  be
  upon  the claiming authority to prove, by clear and convincing evidence,
  that the conduct underlying the criminal conviction would establish  the
  elements  of the felony specified in such subdivision. Nothing contained
  in this subdivision shall affect the validity of  a  settlement  of  any
  forfeiture  action  negotiated  between  the  claiming  authority  and a
  criminal defendant contemporaneously with the taking of a plea of guilty
  in a criminal action to any felony defined in article two hundred twenty
  or section 221.30 or 221.55 of the penal law, or to a felony  conspiracy
  to commit the same.
    4.  The court in which a forfeiture action is pending may dismiss said
  action in the interests of justice  upon  its  own  motion  or  upon  an
  application as provided for herein.
    (a)  At  any  time  during  the  pendency  of a forfeiture action, the
  claiming authority who instituted the action, or  a  defendant  may  (i)
  apply  for  an  order  dismissing  the  complaint  and  terminating  the
  forfeiture action in the interest of justice, or (ii) may apply  for  an
  order  limiting  the  forfeiture to an amount equivalent in value to the
  value of property constituting the proceeds or substituted proceeds of a
  crime in the interest of justice.
    (b) Such application for the relief provided in paragraph  (a)  hereof
  must  be  made in writing and upon notice to all parties. The court may,
  in its discretion, direct that notice  be  given  to  any  other  person
  having an interest in the property.
    (c) An application for the relief provided for in paragraph (a) hereof
  must  be  brought  exclusively  in  the  superior  court  in  which  the
  forfeiture action is pending.
    (d) The court may grant the relief provided in paragraph (a) hereof if
  it finds that  such  relief  is  warranted  by  the  existence  of  some
  compelling  factor,  consideration  or  circumstance  demonstrating that
  forfeiture of the property of any part thereof, would not serve the ends
  of justice. Among the  factors,  considerations  and  circumstances  the
  court may consider, among others, are:
    (i)  the  seriousness  and  circumstances  of  the  crime to which the
  property is connected relative to the impact of forfeiture  of  property
  upon the person who committed the crime; or
    (ii)  the  adverse  impact  of  a forfeiture of property upon innocent
  persons; or
    (iii) the appropriateness of a judgment of  forfeiture  in  an  action
  relating   to   pre-conviction   forfeiture  crime  where  the  criminal
  proceeding based on  the  crime  to  which  the  property  is  allegedly
  connected  results  in  an  acquittal  of  the  criminal  defendant or a
  dismissal of the accusatory instrument on the merits; or
    (iv) in the case of an action relating to an instrumentality,  whether
  the  value of the instrumentality substantially exceeds the value of the
  property constituting the proceeds or substituted proceeds of a crime.
    (e) The court must issue a written decision stating the basis  for  an
  order issued pursuant to this subdivision.
    4-a.  (a)  The  court  in  which  a forfeiture action relating to real
  property is pending may, upon its own motion or upon the motion  of  the
  claiming  authority  which  instituted the action, the defendant, or any
  other person who has a lawful property interest in such property,  enter
  an order:
    (i)  appointing  an  administrator  pursuant  to section seven hundred
  seventy-eight of the real property actions and proceedings law when  the
  owner  of a dwelling is a defendant in such action, and when persons who

  are not defendants in such action lawfully  occupy  one  or  more  units
  within  such dwelling, in order to maintain and preserve the property on
  behalf of such persons or any other person or entity who  has  a  lawful
  property  interest  in  such  property,  or in order to remedy any other
  condition which is dangerous to life, health or safety; or
    (ii) otherwise limiting, modifying or dismissing the forfeiture action
  in order to preserve or protect the  lawful  property  interest  of  any
  non-criminal  defendant  or  any  other  person  who  is  not a criminal
  defendant, or the lawful property interest of a defendant which  is  not
  subject to forfeiture; or
    (iii)  where  such action involves interest in a residential leasehold
  or a statutory tenancy, directing that  upon  entry  of  a  judgment  of
  forfeiture,  the lease or statutory tenancy will be modified as a matter
  of law to terminate only the interest of the  defendant  or  defendants,
  and  to continue the occupancy or tenancy of any other person or persons
  who lawfully reside in such demised premises, with such rights  as  such
  parties  would  otherwise  have  had if the defendant's interest had not
  been forfeited pursuant to this article.
    (b) For purposes of this subdivision the term  "owner"  has  the  same
  meaning  as prescribed for that term in section seven hundred eighty-one
  of the real property actions and proceedings law and the term "dwelling"
  shall mean any  building  or  structure  or  portion  thereof  which  is
  principally occupied in whole or part as the home, residence or sleeping
  place of one or more human beings.
    5.  An action for forfeiture shall be commenced by service pursuant to
  this chapter of a summons with notice or summons and verified complaint.
  No person shall forfeit any right, title, or interest  in  any  property
  who is not a defendant in the action.  The claiming authority shall also
  file  a  copy of such papers with the state division of criminal justice
  services; provided, however, failure to file such papers  shall  not  be
  grounds for any relief by a defendant in this section.
    6.  On  the motion of any party to the forfeiture action, and for good
  cause shown, a court may seal any papers, including those pertaining  to
  any provisional remedy, which relate to the forfeiture action until such
  time  as  the property which is the subject of the forfeiture action has
  been levied upon. A motion to seal such papers may be made ex parte  and
  in camera.
    7.  Remission.  In  addition  to  any other relief provided under this
  chapter, at any time within one year after the entry of  a  judgment  of
  forfeiture,  any person, claiming an interest in the property subject to
  forfeiture who did not receive actual notice of  the  forfeiture  action
  may  petition the judge before whom the forfeiture action was held for a
  remission or  mitigation  of  the  forfeiture  and  restoration  of  the
  property  or  the proceeds of any sale resulting from the forfeiture, or
  such part thereof, as may be claimed by him. The court may restore  said
  property  upon such terms and conditions as it deems reasonable and just
  if (i) the petitioner establishes that he  or  she  was  without  actual
  knowledge  of  the  forfeiture  action  or  any related proceeding for a
  provisional remedy and did not know or should not have  known  that  the
  forfeited property was connected to a crime or fraudulently conveyed and
  (ii)  the  court determines that restoration of the property would serve
  the ends of justice.
    8. The total amount that may be recovered by  the  claiming  authority
  against  all  criminal  defendants  in  a  forfeiture  action or actions
  involving the same crime shall not exceed the value of the  proceeds  of
  the  crime  or  substituted  proceeds  of the crime, whichever amount is
  greater, and, in addition, the value of  any  forfeited  instrumentality
  used  in  the crime.   Any such recovery against criminal defendants for

  the value of the proceeds of the crime or substituted  proceeds  of  the
  crime  shall  be reduced by an amount which equals the value of the same
  proceeds of the same crime or the same substituted proceeds of the  same
  crime  recovered  against all non-criminal defendants. Any such recovery
  for the value of an instrumentality of a crime shall be  reduced  by  an
  amount  which  equals  the  value  of the same instrumentality recovered
  against any non-criminal defendant.
    The total amount  that  may  be  recovered  against  all  non-criminal
  defendants  in  a  forfeiture action or actions involving the same crime
  shall not exceed  the  value  of  the  proceeds  of  the  crime  or  the
  substituted  proceeds of the crime, whichever amount is greater, and, in
  addition, the value of any forfeited instrumentality used in the  crime.
  Any  such  recovery against non-criminal defendants for the value of the
  proceeds of the crime or substituted proceeds  of  the  crime  shall  be
  reduced by an amount which equals the value of the proceeds of the crime
  or  substituted  proceeds  of  the  crime recovered against all criminal
  defendants. A judgment against  a  non-criminal  defendant  pursuant  to
  clause (A) of subparagraph (iv) of paragraph (b) of subdivision three of
  this  section  shall  be  limited  to  the amount of the proceeds of the
  crime. Any recovery for the value of an  instrumentality  of  the  crime
  shall  be  reduced  by  an  amount  equal  to  the  value  of  the  same
  instrumentality recovered against any criminal defendant.
    9.  Any  defendant  in  a  forfeiture   action   who   knowingly   and
  intentionally  conceals,  destroys, dissipates, alters, removes from the
  jurisdiction,  or  otherwise  disposes  of,  property  specified  in   a
  provisional  remedy  ordered by the court or in a judgment of forfeiture
  in knowing contempt of said  order  or  judgment  shall  be  subject  to
  criminal  liability and sanctions under sections 80.05 and 215.80 of the
  penal law.
    10. The proper venue for trial of an action for forfeiture is:
    (a) In the case of an action for post-conviction forfeiture  commenced
  after conviction, the county where the conviction occurred.
    (b)  In all other cases, the county where a criminal prosecution could
  be commenced under article twenty of the criminal procedure law, or,  in
  the  case  of  an action commenced by the office of prosecution, special
  narcotics courts of the city of New  York,  under  section  one  hundred
  seventy-seven-b of the judiciary law.
    11. (a) Any stipulation or settlement agreement between the parties to
  a  forfeiture action shall be filed with the clerk of the court in which
  the forfeiture action is pending. No stipulation or settlement agreement
  shall be accepted for filing unless it is accompanied  by  an  affidavit
  from  the  claiming  authority that written notice of the stipulation or
  settlement agreement, including the terms of such, has been given to the
  state crime victims  board,  the  state  division  of  criminal  justice
  services,  and  in the case of a forfeiture based on a felony defined in
  article two hundred twenty or section 221.30 or 221.55 of the penal law,
  to the state division of substance abuse services.
    (b) No judgment or order of forfeiture shall be  accepted  for  filing
  unless  it  is  accompanied  by an affidavit from the claiming authority
  that written notice of judgment or order, including the terms  of  such,
  has  been  given to the state crime victims board, the state division of
  criminal justice services, and in the case of a forfeiture  based  on  a
  felony defined in article two hundred twenty or section 221.30 or 221.55
  of the penal law, to the state division of substance abuse services.
    (c)  Any  claiming  authority  or  claiming  agent  which receives any
  property pursuant to chapter thirteen of the  food  and  drug  laws  (21
  U.S.C.  §801  et  seq.)  of the United States and/or chapter four of the
  customs duties laws (19 U.S.C. §1301  et  seq.)  of  the  United  States
  and/or  chapter  96 of the crimes and criminal procedure laws (18 U.S.C.