[HISTORY: Adopted by the Common Council of the City of Hudson 1-21-1997
by L.L. No. 1-1997 (Ch. 58A of the 1973 Code). Amendments noted where applicable.]
The purpose of this chapter is to forfeit any proceeds of a crime, substituted
proceeds of a crime or an instrumentality of a crime or to recover a money
judgment in an amount equivalent to the property which constitutes the proceeds
of a crime, substituted proceeds of a crime or an instrumentality of a crime
where said crime is a misdemeanor or a petty offense.
Except where different meanings are expressly specified in subsequent
provisions of this chapter, the following terms have the following meanings:
Includes all persons described in Subdivision 34 of § 1.20
of the Criminal Procedure Law.
The district attorney having jurisdiction over the offense or the
Legal Advisor to the City of Hudson.
The court where the criminal action is pending.
A person who has a criminal liability for a crime defined in the
definitions of "misdemeanor and petty offense," "postconviction forfeiture
crime" or "preconviction forfeiture" of this section. For purposes of this
section, a person has criminal liability when:
Said person has been convicted of a postconviction forfeiture crime;
or
The claiming authority proves by clear and convincing evidence that
such person has committed an act as defined by the New York State Penal Law
§§ 220.03, 220.45, 220.50, 221.05, 221.10, 221.15, 221.35,
221.40, 240.36, 240.40.
A person against whom a forfeiture action is commenced and includes
a criminal defendant and noncriminal defendant.
Includes all persons described in Subdivision 32 of § 1.20
of the Criminal Procedure Law and any duly authorized district attorney or
special assistant district attorney or the Legal Advisor to the City of Hudson.
Given for property or obligation when in exchange for such property
or obligation as a fair equivalent therefor and, in good faith, property and/or
money is conveyed.
Any property, other than real property and any building, fixtures,
appurtenances and improvements thereon whose use contributes directly and
materially to the commission of any offense.
A conviction of a person of a misdemeanor offense as that offense is
defined by the New York State Penal Law or where the accusatory instrument
charges one or more of such offenses, conviction upon a plea of guilty or
by trial to any misdemeanor for which such plea or verdict is otherwise authorized
by law; or
A conviction of a person of a violation as that offense is defined by
the New York State Penal Law or where the accusatory instrument charges one
or more of such violations, conviction upon a plea of guilty or by trial to
any violation for which such plea or verdict is otherwise authorized by law.
A person, other than a criminal defendant, who possesses an interest
in the proceeds of a crime, the substituted proceeds of a crime or an instrumentality
of a crime.
Any misdemeanor or violation defined in the New York State Penal
Law or the City Code of the City of Hudson.
Only those criminal or petty offenses as defined by New York State
Penal Law §§ 220.03, 220.45, 220.50, 221.05, 221.10, 221.15,
221.35, 221.40, 240.36, 240.40.
Any property obtained through the commission of a misdemeanor or
petty offense and includes any appreciation in value of such property.
Includes personal property, money, negotiable instruments, securities
or any interest in a thing of value, excepting real property.
Any property obtained by the sale or exchange of proceeds of a crime,
and any gain realized by such sale or exchange.
Except as provided in Article 13-A of the Civil Practice Law and Rules,
proceeds of a crime, substituted proceeds of a crime or any instrumentality
of a crime shall be subject to forfeiture as prescribed in this chapter.
The City of Hudson may commence a civil action for forfeiture to the
City of Hudson of the proceeds of a crime, substituted proceeds of a crime
or instrumentality of a crime seized incident to an arrest for a misdemeanor
crime or petty offense against any person having an interest in such property.
The decision to commence such a civil action in the name of the City of Hudson
may be made by the Legal Advisor to the City of Hudson or the District Attorney
or the authorized Special District Attorney or Special Assistant District
Attorney without the need of a resolution by the Common Council of the City
of Hudson.
Any person from whom property is seized incident to their arrest for
a misdemeanor or petty offense will receive written notice at the time the
property is seized and inventoried or as soon thereafter as practicable that
the City of Hudson may commence an action for forfeiture of such property
as the proceeds of a crime, substituted proceeds of a crime or instrumentality
of a crime.
A civil action seeking forfeiture brought pursuant to this chapter shall
be commenced in the City of Hudson within 120 days after the seizure of the
property. This notice provision shall be retroactive to September 1, 1996,
and the claiming authority shall have 120 days from the effective day of this
chapter to commence actions relating to seizures occurring between September
1, 1996, and the effective date of this chapter. Upon motion of the defendant
or the claiming authority, said action may be stayed by the court during the
pendency of the criminal action relating to the property.
If a person charged with a misdemeanor crime or petty offense is not
convicted of any misdemeanor crime or petty offense or if the claiming authority
fails to prove by clear and convincing evidence such person has committed
an act as defined by the New York State Penal Law, then any property seized
incident to that person's arrest will be returned to said person by the claiming
agency.
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 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 or the instrumentality of a crime. A civil action may
be commenced against a noncriminal defendant to recover the property which
constitutes the proceeds of a crime, the substituted proceeds of a crime or
the instrumentality of a crime; provided, however, that a judgment of forfeiture
shall be limited to the amount of the proceeds of the crime. Except as otherwise
specially provided by statute, the proceedings under this chapter shall be
governed by this chapter. An action under this chapter is not a criminal proceeding
and may not be deemed to be a previous prosecution under Article 40 of the
Criminal Procedure Law.
A.
Action relating to postconviction forfeiture crimes. An action relating to a postconviction forfeiture crime must be grounded upon a conviction of a misdemeanor or petty offenses defined in § 116-2 or upon an information, complaint and/or simplified traffic information alleging a count of a misdemeanor or petty offense which was dismissed at the time of a plea of guilty to a misdemeanor or petty offense 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 chapter prior to such conviction having occurred. An action under this section must be dismissed at any time after 60 days of the commencement of the action unless the conviction upon which the action is grounded has occurred or an indictment, information or complaint upon which the asserted conviction is to be based is pending in a court.
B.
Actions relating to preconviction forfeiture crimes.
An action relating to a preconviction forfeiture crime need not be grounded
upon conviction of a preconviction 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 preconviction
forfeiture crime by clear and convincing evidence. An action under this subsection
shall be stayed during the pendency of a criminal action which is related
to it, provided that such stay shall not prevent the granting or continuance
of any provisional remedy provided under this chapter or under any other provision
of law governing provisional remedies.
All defendants in a forfeiture action brought pursuant to this chapter
shall have the right to trial by jury on any issue of fact.
In a forfeiture action pursuant to this chapter, the following burdens
of proof shall apply:
A.
In a forfeiture action commenced by a claiming authority
against a criminal defendant, except for those issues required by this chapter
to 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 noncriminal defendant:
(1)
In an action relating to a preconviction 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.
(2)
If the action relates to the proceeds of a crime, except as provided in Subsection B(1) 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 noncriminal defendant either:
(3)
If the action relates to the substituted proceeds of a crime, except as provided in Subsection B(1) 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 noncriminal defendant either:
(4)
If the action relates to an instrumentality of a crime, except as provided for in Subsection B(1) 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 noncriminal defendant either:
(a)
Knew that the instrumentality was or would be used in
the commission of a crime;
(b)
Knowingly obtained his or her interest in the instrumentality
to avoid forfeiture; or
(c)
In a forfeiture action commenced by a claiming authority
against a noncriminal defendant, the following rebuttable presumptions shall
apply:
[1]
A noncriminal 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.
[2]
A noncriminal 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 chapter 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.
[3]
In an action relating to a postconviction forfeiture
crime, a noncriminal defendant who the claiming authority proves by clear
and convincing evidence has criminal liability under § 20.00 of
the Penal Law for the crime 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.
[4]
A noncriminal defendant who participated in or was aware
of a scheme to conceal or disguise the manner in which said noncriminal 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 preconviction forfeiture crime when such currency
or negotiable instruments are:
[1]
Found in close proximity to a controlled substance unlawfully
possessed by the defendant in an amount sufficient to constitute a misdemeanor
or petty offense as defined by the New York State Penal Law; or
[2]
Found in close proximity to any quantity of a controlled
substance or marijuana 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 marijuana.
(e)
The presumption set forth pursuant to Subsection B(4)(d) of this section 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 210 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.
Nothing contained in this chapter 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 misdemeanor or petty offense as defined in this chapter.
An action for forfeiture shall be commenced by service of a summons
with notice or summons and verified complaint.
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:
A.
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
B.
The court determines that restoration of the property
would serve the ends of justice.
A.
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 noncriminal 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 noncriminal defendant.
B.
The total amount that may be recovered against all noncriminal
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
the noncriminal 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 noncriminal defendant
pursuant to local law 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.
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.
A.
The provisional remedies of attachment, injunction and
receivership shall be available in all actions for a money judgment under
this chapter.
B.
On a motion for a provisional remedy, the claiming authority
shall state whether any other provisional remedy has previously been sought
in the same action against the same defendant. The court may require the claiming
authority to elect between those remedies to which it would otherwise be entitled.
C.
A court may grant an application for a provisional remedy
when it determines that:
(1)
There is a substantial probability that the claiming
authority will prevail on the issue of forfeiture and that failure to enter
the order may result in the property being destroyed, removed from the jurisdiction
of the court or otherwise be unavailable for forfeiture; or
(2)
The need to preserve the availability of the property
through the entry of the requested order outweighs the hardship on any party
against whom the order may operate.
D.
Upon motion of any party against whom a provisional remedy
is in effect, the court may issue an order modifying or vacating such provisional
remedy if necessary to permit the moving party to obtain funds for the payment
of reasonable living expenses, other costs or expenses related to the maintenance,
operation or preservation of property which is the subject of any such provisional
remedy or reasonable. Any such motion shall be supported by an affidavit establishing
the unavailability of other assets of the moving party which are not the subject
of such provisional remedy for payment of such expenses or fees.
Except for property that the Legal Advisor or District Attorney determines
would aid law enforcement within the City of Hudson and property as defined
in this chapter, any property forfeited pursuant to the procedures established
by this chapter shall be sold at public auction after having been advertised
by the appropriate claiming agency in the official newspaper of the city once
per week for a period of four weeks and by written notice posted for a period
of four weeks in a suitable location to be designated by the claiming agency
for such purpose.
The proceeds of a sale and any other moneys realized as a consequence
of any forfeiture pursuant to this chapter shall be apportioned and paid in
the following descending order of priority:
A.
Amounts ordered to be paid by the court in satisfaction
of any lien or claim against the property forfeited. A fine imposed pursuant
to the Penal Law shall not be deemed to constitute a lien or claim for purposes
of this section;
B.
Amounts ordered to be paid by the defendant in any other
action or proceeding as restitution, reparations or damages to a victim of
the crime, which crime constitutes the basis upon which forfeiture was effected
under this chapter, to the extent such amounts remain unpaid;
C.
Amounts actually expended by a claiming authority or
claiming agent, which amounts are substantiated by vouchers or other evidence
for the maintenance, operation, storage, sale and the like which is required
by circumstances attendant to either the commission of the crime or the forfeiture
action;
D.
All remaining funds to be distributed to the claiming
authority and shall be paid into the Hudson Police Department/Petty Offense
Forfeiture Fund maintained by the City Treasurer.
[Amended 1-16-2001 by L.L.
No. 2-2001]
All moneys distributed to the claiming authority and paid into the Hudson
Police Department/Petty Offense Forfeiture Fund, maintained by the City Treasurer,
shall be used to enhance law enforcement efforts at the discretion of the
Legal Advisor to the City of Hudson or the Police Commissioner.
