480.10 - Procedure.

§ 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 retrialsrelating 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.