Asset forfeiture is a ruthless process, through which state and federal government confiscate – and seek, to permanently take – private property, such as cash, bank accounts, estate properties, vehicles, or other personal property. The government takes away everything from a person. There are hundreds, thousands, of federal and state statutes which can result in asset forfeiture. These statutes allow the government to seize property by proving there’s a connection between the property/assets and illegal activity. If there is even a level of “probable cause,” it’s enough for the government to take over the property/assets. The link doesn’t have to be significant. The property doesn’t have to be directly linked to the illegal activity.
Our NYC asset forfeiture lawyers can help, regardless of the complexity of your case.
There are two types of asset forfeiture. State and Federal. The state forfeiture will be done via a District Attorney or an Attorney General. Federal asset forfeiture is done via the United States Attorney’s Office. The federal law has 3 types of situations: criminal, in rem(civil), and administrative. In New York, the federal asset forfeitures are handled by the Assistant United states Attorney Generals from the Southern District of New York, Eastern District of New York, Northern District of New York, and Western District of New York.
Criminal forfeiture is the most common form of federal asset forfeiture. This is when the federal government tells you that if you’re convicted of a crime you’re charged with – then you have to forfeit property of yours. If the government is going after a specific property, they must name the property in question. They also need to seek a money judgement, which is a judgement against you for a certain sum of money – which represents the amount of money you made from the crime. These proceedings are determined by Rule 32.2 of the Federal Rules of Criminal Procedure. Federal laws, which regulate criminal forfeiture, require a US District judge, to order the forfeiture. That means the forfeiture is decided as a part of the sentencing. It typically requires a lower burden of proof than the criminal case. As a result, you need the very best asset forfeiture lawyer when in Federal Court. If a case goes to trial, the forfeiture will probably be handled by another trial.
In order to start a forfeiture procedure, a Federal prosecutor has to give notice to the defendant of the intention to forfeit property. That notice has to be included in the indictment. If the trial is on the criminal case, then forfeiture is mentioned until after a verdict is passed. At that time, there will be a separate forfeiture proceeding. If the defendant is convicted, then the government has to show in the second proceeding that there is a link between the crime and the property the government is requesting be forfeit.
If the property belongs to another owner, the government cannot confiscate it. Third parties are excluded from participating in a federal crimine case, which means if you own property which is being forfeited as a part of someone else’s criminal case – then you have to wait until the end of the case for the ancillary proceeding. During this proceeding, you can assert your right to get the property back
Under NY State Law, District Attorneys can forfeit proceeds of crime. In New York, state prosecutors cannot forfeit real property – except in drug cases. That means they cannot go after your home. It is extremely difficult for a state prosecutor to do so, and the law is on your side in this case. The prosecutor can go after ill-gotten gains, such as cash, bank accounts, real property, personal property, etc. Property which is an instrument of the crime. That means vehicles, real estate, currency, etc, is fair game for forfeiture.
Under New York law, DA’s can forfeit proceeds of criminal enterprises. In addition to the proceeds of the crime – the instrumentalities of the crime can be forfeit as well. That’s why you need a New York asset forfeiture lawyer to help protect you. In New York, state prosecutors cannot forfeit your real property – except in drug cases. That means, they cannot go after your home. If they are, then our NY state asset forfeiture attorneys can help. It’s very difficult for state prosecutors to do so, and the law is on your side when it comes to such forfeiture attempts, or seizure attempts.
Proceeds of crime refers to gains – such as cash, property, or other assets, which were gained as a result of the crime. Property, which is considered an instrumentality of crime, refers to assets which were used to facilitate the crime. For example, vehicles, real estate, or money, which was actively being used – is an example. According to Joel Farar, a personal injury attorney in Los Angeles, asset forfeiture is usually permanent – unless you prove otherwise.
New York has no true mechanism for criminal forfeiture. In NY, the main criminal forfeiture statute is in NY penal law Article 480, which discusses convictions for felonies as defined in article 220 of the penal law. Unlike Article 13-A, and all the other federal forfeiture statutes, which require the prosecution to prove forefeitability at trial based on evidence, Article 480 requires a much higher standard of proof.
The other main forfeiture statute, is found in New York’s OCCA of 1986, which defines the enterprise corruption crimes. OCCA discusses both criminal and civicl forfeiture, including article 13-a provisional remedies in criminal cases. Like Article 480 forfeitures, criminal OCCA forfeitures mandate that the prosecution prove it’s forfeiture case beyond a reasonable doubt. The statute also permits the court, to use it’s own findings instead of the juries. The court is empowered to ignore a jury verdict, or limit it – as it sees fit. In both criminal forfeiture schemes, the prosecutor has to present evidence to the grand jury which provides beyond a reasonable doubt that the property should be subject to forfeiture. The grand jury has to make the decision to pursue forfeiture of the property. In contrast, Article 13-a, nor the federal scheme, have any such requirements of grand jury review. Under the current criminal forfeiture scheme, the court can also order to the prosecution to provide any discovery/work product related to the forfeiture aspect of the case. The end result is that the criminal forfeiture statute is rarely used by Prosecutors in the state of New York. None of the state criminal forfeiture statues provide for forfeiture of proceeds of misdemeanor offenses, or forfeiture of the instruments pertaining to non-drug felony offenses. However, federal statutes are the opposite. In many situations, the DA’s office will ask the Federal government to take the seizures from misdemeanor crimes.
As part of the NY criminal case process, the only way a prosecutor can demand forfeiture is by attaching a forfeiture stipulation as a condition for the plea offer. In those cases, the DA can only receive forfeiture in exchange for agreeing not to file a civil lawsuit pursuant to CPLR 13-A. There is no general criminal forfeiture, as a result DA’s are instead required to file a separate civil lawsuit against defendants who don’t take the plea.
Our law firm can help you with ANY New York asset forfeitures issues.
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