BILL NUMBER: S4521
SPONSOR: BAILEY
 
TITLE OF BILL:
An act to amend the penal law and the criminal procedure law, in
relation to enacting the "criminal forfeiture process act"; and to
repeal certain provisions of the penal law relating thereto
 
PURPOSE:
To abolish the use of civil asset forfeiture and replace it with the
process of criminal forfeiture to ensure due process when property
and/or currency is confiscated by law enforcement.
 
SUMMARY OF SPECIFIC PROVISIONS:
Section one of the bill establishes the act title "criminal forfeiture
process act."
Section two repeals article 480 of the penal law and replaces it with a
new article 480.
480.00: Legislative intent establishes that forfeiture is disfavored and
that the purpose of article 480 is to deter criminal activity by reduc-
ing its economic incentives; confiscate property used in the violation
cf law and restrain profits from illegal conduct; and protect the due
process rights of property owners.
480.05: Defines terms used in article 480.
480.10: Establishes jurisdiction. This article will only apply to prop-
erty seized under the conditions outlined.
480.15: Provides for the seizure of personal property with process.
480.20: Establishes the conditions for the seizure of personal property
without process.
480.25: Establishes that real property can only be seized or restrained
with process.
480:30: Property rights as outlined in the bill do not apply to contra-
band.
480.35: When property is seized, law enforcement must provide an item-
ized receipt of the property at the time of the seizure.
480.40: Establishes the types of property and the value of certain types
of property or currency that are exempt from seizure and forfeiture.
480.45: Only a prosecuting authority may require or induce a person to
waive interest in seized property.
480.50: A title to seized property will vest with the state when the
court issues a forfeiture judgement and shall relate back to the time
when such property was seized or restrained. Titles to substitute assets
will vest when the court issues an order forfeiting such substitute
assets.
480.55: A public defender's office may authorize representation of a
defendant in a forfeiture proceeding or any related proceeding.
480.60: Prosecuting authorities must perform a reasonable search for
other people, outside of the defendant, that have an interest in seized
property subject to forfeiture. Notice to interested parties must be
provided to inform that they may state interest of ownership without a
filing fee. If there is no notice, an interested party may have property
returned upon request.
480.65: Outlines the right to prompt post-seizure hearings. A defendant
or any person with interest in seized property has the right to a prompt
post-seizure hearing. A post-seizure hearing can be held at the court's
discretion as a separate hearing or at the same time as a probable-cause
determination, a post-arraignment omnibus hearing or other pretrial
hearing. A party may move for one extension of no more than 10 days. Any
motion shall be supported by affidavits or other submissions.
A court must return the property if it finds the seizure was invalid, a
criminal charge has not been filed and no extension of the filing period
is available, the seized property is not reasonably required to be held
as evidence, the final judgement likely will be in favor of the defend-
ant or any other person with an interest in the property, or the seized
property is the only reasonable means for the defendant to pay for legal
representation unless the prosecuting authority convincingly shows that
the seized property is the instrumentality of or proceeds derived
directly from the crime for which the defendant is charged. At the
court's discretion, it may order the return of enough funds and proper-
ty, not needed as evidence, for the defendant to obtain counsel of
choice, but less than the total amount seized.
480.70: If the state seeks forfeiture of property, other than under
section 480.75 of this article (indictment), the prosecuting authority
shall include a description of the property seized, the time, date and
place cf seizure; and a description of how the seized property was used
in or derived from the alleged crime. The prosecuting authority may
allege the forfeiture of seized property as a sanction related to the
crime for which the defendant is charged. The state, with the consent
of the court and a defendant with an interest in seized property, may
amend the charging document or file an ancillary charge alleging that
such property is subject to criminal forfeiture at any time prior to
trial. The court may grant an unlimited number of 90-day extensions if
probable cause is shown and additional time is warranted. The prosecut-
ing authority shall serve the charging document or amendment and notice
of the proposed forfeiture as provided by the rules of the court.
The court shall order the return of seized property to the owner if the
prosecutor does not file a charging document, the period of an extension
expires, or the court does not grant an extension.
480.75: Provides for notice of proposed forfeiture after indictment.
The notice shall not be read to a jury. The prosecuting authority may
allege, in the notice, the forfeiture as a sanction related to the crim-
inal charge, a part of a sentencing consideration, or as other means to
effectuate the criminal forfeiture of the property. The property related
allegation shall identify the specific property to be forfeited, if
known, or the relevant forfeiture statutes if the specific property is
not known at the time of the indictment. The prosecutor may apply for,
or the court may enter, a restraining order or injunction to preserve
the property under certain circumstances.
480.80: Establishes that discovery related to the forfeiture proceeding
shall be subject to procedures set forth by pursuant to the criminal
procedure law.
480.85: Establishes standards for trial, conviction and standard of
proof.
480.90: Establishes exceptions to the conviction requirement.
480.95: Establishes proportionality in regard to forfeiture. The defend-
ant may petition the court to determine whether the forfeiture is uncon-
stitutionally excessive under the state or federal constitution. The
defendant shall have the burden of establishing unconstitutionality
through a preponderance of evidence through a hearing. The court shall
consider all relevant factors. The court shall consider the fair market
value to determine instrumentality but shall not consider the value of
the property to the state when determining if the forfeiture is uncon-
stitutionally excessive.
480.100: Establishes the rights of a secured interest holder and the
means by which a determination shall be made on returning property to
that interest holder.
480.105: The property of an innocent owner cannot be forfeited. If the
forfeited property is not returned, an innocent owner has a right to a
hearing to be held before the court without a jury.
480.110: Outlines the parameters of a judgement. Property is returned if
a prosecutor fails to meet their burden in the criminal or forfeiture
proceeding or if the court dismisses the proceeding. If the burden is
met, the property is forfeited
480.115: Establishes the circumstances in which assets can be substi-
tuted to complete a justified forfeiture.
480.120: Prosecutors cannot seek personal money judgements related to
forfeiture of property not provided for by this article.
480.125: Establishes no joint-and-several liability. A defendant shall
not be liable for forfeiture owed by other defendants.
480.130: A party to a forfeiture proceeding or the defendant may appeal
the court's decision regarding forfeitures following the final judgement
in the forfeiture proceeding.
480.135: Establishes circumstances for which attorney fees may be recov-
ered.
480.140: Establishes return of property; damages and costs. Law enforce-
ment must return property within five days of an order to release such
property.
The rightful owner is not subject to expenses of storage, towing or
preservation of property. The law enforcement agency is responsible for
any damages, storage fees and related costs for returning property.
480.145: Establishes disposition of property and proceeds. If contraband
is no longer needed as evidence, it may be destroyed. Abandoned proper-
ty or the property of a defendant who fled the jurisdiction may be
ordered to be sold if it is no longer needed as evidence. If forfeiture
is granted, property may be ordered to be sold. The court may order
forfeited currency and sale proceeds to pay restitution to victims,
satisfy debts related to the property, pay reasonable costs for things
such as towing or storage, reimburse law enforcement for non-personnel
operating costs, be disbursed statewide public safety grants, or be
deposited into the state's general fund.
480.150: Establishes restrictions on sales of forfeited properties. A
law enforcement agency shall not sell forfeited property directly or
indirectly to an employee of that agency or their relatives or to anoth-
er law enforcement agency.
480.155: Establishes preemption. This article shall preempt local laws
that regulate civil and criminal forfeiture.
480.160: Establishes limitation on federal adoption. Law enforcement may
not offer forfeited property for federal adoption unless such seized
property includes U.S. currency that exceeds $20,000.
480.165: Establishes limitations on state and federal joint task forces.
A joint task force shall transfer seized property to the prosecuting
authority unless seized property includes U.S. currency in excess of
$20,000. Law enforcement cannot accept payment from the federal govern-
ment if the federal government requires currency totaling less that
$20,000 be transferred to them.
480.160 should be construed to restrict law enforcement from collaborat-
ing with a federal agency to lawfully seize contraband. Nothing shall
be construed from prohibiting the federal government from acting alone
to lawfully seize contraband. A prosecuting authority may establish
guidelines for joint task forces and multi-jurisdictional collaboration
in that prosecuting authority's jurisdiction.
480.170: Establishes guidance. A prosecuting authority may establish
guidelines for joint task forces after consulting with the responsible
U.S., Attorney. The office of public safety will publish best practices
for training on seizure and forfeiture.
480.175: Establishes severability of the article.
Section three amends subdivision four of section 690.10 of the criminal
procedure law and adds a new subdivision five to reference article 480
of the penal law.
Section 4 amends paragraph (a) of subdivision 1 of section 690.55 of the
criminal procedure law to include reference to article 480 of the penal
law.
 
JUSTIFICATION:
Originally intended to undermine the proceeds of criminal enterprises,
civil asset forfeiture has led to perverse incentives by police depart-
ments and abuse across the nation. Because of the lack of due process
involved, the necessary bar for goods or money to be confiscated is
incredibly low. In many municipalities across the country, departments
often use forfeited money and assets to increase policing budgets. Low-
income communities and communities of color are disproportionately
impacted because they do not have the means to pay for the litigation
necessary to recover their assets. Often an individual will never be
charged with a criminal offense after goods are stolen, but it is still
their responsibility to make the case that the assets were not involved
in a crime.
Many municipalities have used fines, fees and asset forfeiture to fill
revenue gaps. These practices are regressive and have the most harmful
impact on economically vulnerable residents. This legislation ensures
due process in asset forfeiture and removes harmful incentives to
confiscate assets unlawfully, while also leaving this law enforcement
tool available when it is truly needed. Reform to asset forfeiture is
long overdue, and converting civil asset forfeiture to criminal forfei-
ture processing ensures due process and fairness.
 
PRIOR LEGISLATD HISTORY:
2021-22: S6440 - Reported to Finance
2023-24: S2192 - Reported and Committed to Finance
 
FISCAL IMPLICATIONS:
To be determined.
 
EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding the
date on which it becomes a law.

Statutes affected:
S4521: 690.10 criminal procedure law, 690.10(4) criminal procedure law, 690.55 criminal procedure law, 690.55(1) criminal procedure law