STATE OF NEW YORK
       ________________________________________________________________________
 
                                          664
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                    January 9, 2001
                                      ___________
 
       Introduced  by  Sen. GOODMAN -- read twice and ordered printed, and when
         printed to be committed to the Committee on Codes
 
       AN ACT to amend the civil practice law and rules, in relation to forfei-
         ture of real property which is the instrumentality of a drug crime
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1.  Subdivision 4-b of section 1310 of the civil practice law
    2  and rules, as added by chapter 655 of the laws of 1990,  is  amended  to
    3  read as follows:
    4    4-b. "Specified felony offense" means[:
    5    (a)  a  conviction  of  a  person  for  a violation of section 220.18,
    6  220.21, 220.41, or 220.43 of the penal  law,  or  where  the  accusatory
    7  instrument  charges one or more of such offenses, conviction upon a plea
    8  of guilty to any of the  felonies  for  which  such  plea  is  otherwise
    9  authorized by law or a conviction of a person for conspiracy to commit a
   10  violation of section 220.18, 220.21, 220.41, or 220.43 of the penal law,
   11  where  the  controlled substances which are the object of the conspiracy
   12  are located in the real property which is the subject of the  forfeiture
   13  action; or
   14    (b)    on  three or more occasions, engaging in conduct constituting a
   15  violation of any of the felonies  defined  in  section  220.09,  220.16,
   16  220.18,  220.21, 220.31, 220.34, 220.39, 220.41, 220.43 or 221.55 of the
   17  penal law, which violations do not constitute a single criminal  offense
   18  as defined in subdivision one of section 40.10 of the criminal procedure
   19  law,  or  a  single criminal transaction, as defined in paragraph (a) of
   20  subdivision two of section 40.10 of the criminal procedure law,  and  at
   21  least  one  of  which resulted in a conviction of such offense, or where
   22  the  accusatory  instrument  charges  one  or  more  of  such  felonies,
   23  conviction  upon  a  plea  of  guilty to a felony for which such plea is
   24  otherwise authorized by law; or
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00836-01-1

       S. 664                              2
 
    1    (c)   a conviction of a person for  a  violation  of  section  220.09,
    2  220.16, 220.34 or 220.39 of the penal law, or a conviction of a criminal
    3  defendant  for  a violation of section 221.30 of the penal law, or where
    4  the accusatory instrument charges any such  felony,  conviction  upon  a
    5  plea of guilty to a felony for which the plea is otherwise authorized by
    6  law, together with evidence which: (i) provides substantial indicia that
    7  the  defendant  used the real property to engage in a continual, ongoing
    8  course of conduct involving the unlawful mixing,  compounding,  manufac-
    9  turing,  warehousing, or packaging of controlled substances or where the
   10  conviction is for a violation of section 221.30 of the penal law,  mari-
   11  juana, as part of an illegal trade or business for gain; and (ii) estab-
   12  lishes, where the conviction is for possession of a controlled substance
   13  or  where  the  conviction  is  for a violation of section 221.30 of the
   14  penal law, marijuana, that such possession was with the intent  to  sell
   15  it] a conviction of any felony, defined in article two hundred twenty or
   16  two hundred twenty-one of the penal law.
   17    §  2.  Subparagraph  (v)  of paragraph (b) of subdivision 3 of section
   18  1311 of the civil practice law and rules, as added by chapter 655 of the
   19  laws of 1990, is amended to read as follows:
   20    (v) if the action relates to a  real  property  instrumentality  of  a
   21  crime,  the  burden  shall be upon the claiming authority to prove those
   22  facts referred to in subdivision four-b of section thirteen hundred  ten
   23  of  this  article  by  [clear  and  convincing] the preponderance of the
   24  evidence.   The claiming authority shall also  prove  by  [a  clear  and
   25  convincing]  the  preponderance  of  the  evidence that the non-criminal
   26  defendant knew that such property was or would be used for  the  commis-
   27  sion  of  any specified felony [offenses] offense, and [either (A) know-
   28  ingly and unlawfully benefitted from such  conduct  or  (B)  voluntarily
   29  agreed  to  the use of such property for the commission of such offenses
   30  by consent freely given.  For purposes of this subparagraph, a  non-cri-
   31  minal defendant knowingly and unlawfully benefits from the commission of
   32  a  specified  felony  offense when he derives in exchange for permitting
   33  the use or occupancy of such  real  property  by  a  person  or  persons
   34  committing  such  specified  offense  a  substantial  benefit that would
   35  otherwise not accrue as a result of the lawful use or occupancy of  such
   36  real property.  "Benefit" means benefit as defined in subdivision seven-
   37  teen  of  section  10.00  of the penal law] consented to the use of such
   38  property for the commission of a specified felony offense by failing  to
   39  take  reasonable  precautions  within  his  or  her power to prevent the
   40  occurrence of specified felony offenses upon the property.
   41    § 3. This act shall take effect on the one hundred twentieth day after
   42  it shall have become a law, provided that any and all actions  necessary
   43  to  implement the provisions of this act on its effective date are imme-
   44  diately authorized and directed to be completed on or before such effec-
   45  tive date.

 
BILL NUMBER: S664
 
SPONSOR: GOODMAN

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to forfeiture of real property which is the instrumentality of
a drug crime
 
 
PURPOSE:  To provide an asset forfeiture law that would give state and
local authorities the ability to seize privately-owned real property
from noncriminal owners who refuse to take actions within their power to
safeguard their innocent tenants from illegal drug activity.
 
 
SUMMARY OF PROVISIONS:  Amends subdivision 4(b) of section 1310 of the
civil practice law and rules by changing and simplifying the definition
of "specified felony offense" to mean a conviction for any felony,
defined in article two hundred twenty, or two hundred twenty-one of the
penal law.
 
Amends subparagraph (v) of paragraph (b) of subdivision 3 of section
1311 of the civil practice law and rules by requiring that the burden of
proof for all elements required in a civil forfeiture action where real
property is the instrumentality of a crime shall be by a preponderance
of the evidence.  Further, while retaining the requirement that the
claiming authority retain the burden of proving that the noncriminal
defendant/property owner knew that such property would be used for the
commission of any specified felony, the bill replaces the requirement
that the noncriminal defendant either knowingly and unlawfully, benefit-
ted from such conduct or voluntarily agreed to the use of such property
for the commission of such offenses by freely giving consent.  Instead,
it requires that, by the preponderance of the evidence, the noncriminal
defendant/property owner consented to the use of such property for the
commission of a specified felony offense by failing to take reasonable
precautions within his or her power to prevent the occurrence of speci-
fied felony offenses upon the property.
 
 
JUSTIFICATION:  A six month investigation by the Senate Committee on
Investigations, Taxation and Government Operations, has shown that the
occurrence of illegal drug activities on or near residential buildings
creates a serious threat to privately owned and publicly owned housing
stock and to the law abiding citizens living in or near such properties.
 
Interviews with housing court judges, counsel's office for the New York
City police department, and prosecutors who are members of the forfei-
ture law advisory group of the New York State district attorney's asso-
ciation, all indicated the need for a workable and realistic state asset
forfeiture law for real property used as the instrumentality of a crime.
The law, as currently enacted, establishes an almost impossible prosecu-
torial burden.  It requires the claiming authority to prove that the
property owner either consented freely to the use of his property for
drug dealing or, in the alternative, that the property owner has
obtained a substantial benefit or kickback for allowing drug dealing on
his property.
 
This law is clearly unworkable and has been used rarely. Local law
enforcement officials and the New York City police department now must
seek the aid of the federal government to use the simplified Federal
real property asset forfeiture law when the city needs to seize real
property from a property owner whose non-cooperation in combatting drug
 
dealing on his property becomes a serious threat to the health and safe-
ty of the tenants occupying his property.
 
This new law would require the claiming authority to prove that the
property owner knew that there was serious drug dealing on his property
and that he failed to take reasonable steps necessary to prevent and to
stop this illegality from occurring.
 
 
LEGISLATIVE HISTORY:  2000 - S.1112 Referred to Codes/A.8332 -
Referred to Codes.
 
1999 - S.1112 Referred to Codes/A.8332 - Referred to Codes.
 
1998 - S.2280 Referred to Codes.
 
1997 - S.2280 Referred to Codes.
 
1994 - S.4695 Referred to Alcoholism and Drug Abuse.
 
1993 - S.4695 Referred to Alcoholism and Drug Abuse Committee.
 
 
FISCAL IMPLICATIONS:
 
None.
 
 
EFFECTIVE DATE:
 
120 Days after passage of the bill.