The defendant was convicted of cocaine possession in the fourth degree (a class C felony), possession of a weapon (also a felony), and misdemeanor counts of crack possession.
He was sentenced to serve an indeterminate sentence of five to ten years. Following his conviction, the District Attorney served the defendant with a summons and complaint for forfeiture which the defendant has not yet answered.
The defendant and a co-defendant were arrested after a car chase during which 39 small bags of cocaine (the subject of defendant’s felony drug crime conviction) were thrown from the car. One bag of cocaine, and $110 cash were found on the defendant’s personal things together with a piece of paper with names and numbers amounting to $7,296. This figure, asserts the complainant, is the monetary value of the defendant’s drug transactions.
Following his arrest, the defendant accompanied his arresting officers to his apartment where, pursuant to a lawful search warrant, they searched the premises. They found various drug crime related paraphernalia such as scales, grinders, spoons and numerous clear plastic bags as well as $24,350 in cash in the defendant’s stereo, a small quantity of marijuana for which the defendant was also convicted of marijuana possession, a weapon, and sheets of paper with lists of names and numbers.
At the defendant’s trial, the court refused to admit the evidence of the $24,350 in cash, the drug paraphernalia and sheets of paper on grounds of relevance.
Civil Practice Law and Rules (CPLR) provides that a civil action may be commenced against a criminal law defendant to recover the property which constitutes the proceeds of a crime, the substituted proceeds of a crime or 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 forfeiture action shall be civil, remedial and personal in nature.
An action relating to a post-conviction forfeiture crime must be grounded upon a conviction of a felony or upon criminal activity arising from a common scheme or plan of which such a conviction is a part or upon a count of an indictment alleging a felony which was dismissed at the time of a plea of guilty to a felony in satisfaction of such count.
Thus CPLR requires the claiming authority, in a post conviction forfeiture proceeding to make a legitimate showing that the property sought to be forfeited either directly relates to a felony conviction or is grounded upon criminal activity arising from a common scheme or plan of which the felony conviction is a part.
Money may be forfeited if it is directly related to criminal activity of which the criminal law violation conviction forms a part. That means the claiming authority must prove that the money is the fruits of a common scheme or plan of criminal activity and the underlying felony conviction is a component of that common scheme or plan.
The complainant alleges the sum recorded on the paper slips in the defendant’s possession represents additional fruits of the defendant’s criminal activity which is separate from and in addition to the money seized in the defendant’s apartment. Therefore, the complainant seeks a separate money judgment in the amount of $7,296.
The courts have refused to dismiss the forfeiture action as a matter of law because the circumstances were ambiguous and presented factual issues requiring a hearing as to whether the seized money represented proceeds of crime or was used in the course of criminal activity.
The complainant may be able to show the drug crime of crack possession for which the defendant was convicted is part of a common scheme or plan of criminal activity, including purchase and sale of drugs. The money seized may be shown to have contributed directly or materially to the scheme or, it may be shown to have been the proceeds of the criminal plan or activity. In either case, the complainant has sufficiently alleged a nexus between the defendant’s conviction, a common scheme or plan, and the money. The drug paraphernalia which was ruled irrelevant and not admitted for purposes of the defendant’s criminal law violation trial may be both relevant and admissible in the civil forfeiture trial. Robbery was not a part of this.
The defendant has failed to rebut the complainant’s allegations of trafficking with sworn affidavits, as required, and has put forth only an attorney’s affidavit having no probative value. The defendant’s counsel merely suggests the money could have come from any one of a number of legitimate sources.
Civil Practice Law and Rules (CPLR) permits the court to dismiss a pending forfeiture action or to limit the value of the amount seized in the interests of justice. It provides that the court in which a forfeiture action is pending may dismiss the said action in the interests of justice upon its own motion or upon an application at any time during the pendency of a forfeiture action, the claiming authority who instituted the action, or a defendant may apply for an order dismissing the complaint and terminating the forfeiture action in the interest of justice. It further provides that the Court may grant the relief if it finds that such relief is warranted by the existence of some compelling factor, consideration or circumstances demonstrating that forfeiture of the property or any part thereof, would not serve the ends of justice. Among the factors, considerations and circumstances the court may consider are the seriousness and circumstances of the crime to which the property is connected relative to the impact of forfeiture of property upon the person who committed the crime; or the adverse impact of a forfeiture of property upon innocent persons; or the appropriateness of a judgment of forfeiture in an action relating to pre-conviction forfeiture crime where the criminal law violation proceeding based on the crime to which the property is allegedly connected results in an acquittal of the criminal law defendant or a dismissal of the accusatory instrument on the merits; or whether the value of the instrumentality substantially exceeds the value of the property constituting the proceeds or substituted proceeds of a crime.
The defendant has not established such grounds for relief in his papers. His counsel’s affidavit, albeit without probative value, offers no evidentiary facts of the defendant’s personal affairs or needs. There is no showing the forfeiture will have adverse impact on innocent persons. Demonstration of compelling factors opposed to forfeiture is absent.
The defendant’s chief argument, in support of his application for dismissal or release of some of the funds, made without documentation of financial hardship, is that he needs the money for an attorney and will be deprived of counsel if his funds are forfeited.
In civil proceedings such as this forfeiture action, there is no Sixth Amendment or constitutional right under the laws of New York State to counsel. In the prior criminal law violation proceeding, the defendant had been represented by counsel of his choice. He asks to use part of the funds seized for the criminal appeal and for defense of his civil proceeding, notwithstanding the fact that the Appellate Division appointed a counsel over objection by the District Attorney to prosecute his appeal. Not satisfied, he wants to have his own lawyer for the appeal and for his proceeding.
Since the defendant’s request is unsupported by constitutional right, the issue pending is whether, pursuant to CPLR, hardship, injustice, or the defendant’s legitimate showing of entitlement to the money has been demonstrated, so as to cause the court to invoke the escape mechanism of that statute permitting the release of funds to the defendant.
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