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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