S T A T E O F N E W Y O R K ________________________________________________________________________ 2280 1997-1998 Regular Sessions I N S E N A T E February 5, 1997 ___________ 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 25 (c) a conviction of a person for a violation of section 220.09, 26 220.16, 220.34 or 220.39 of the penal law, or a conviction of a criminal EXPLANATION--Matter in italics (underscored) is new; matter in brackets _______ [ ] is old law to be omitted. LBD07722-01-7 S. 2280 2 1 defendant for a violation of section 221.30 of the penal law, or where 2 the accusatory instrument charges any such felony, conviction upon a 3 plea of guilty to a felony for which the plea is otherwise authorized by 4 law, together with evidence which: (i) provides substantial indicia that 5 the defendant used the real property to engage in a continual, ongoing 6 course of conduct involving the unlawful mixing, compounding, manufac- 7 turing, warehousing, or packaging of controlled substances or where the 8 conviction is for a violation of section 221.30 of the penal law, mari- 9 juana, as part of an illegal trade or business for gain; and (ii) estab- 10 lishes, where the conviction is for possession of a controlled substance 11 or where the conviction is for a violation of section 221.30 of the 12 penal law, marijuana, that such possession was with the intent to sell 13 it] a conviction of any felony, defined in article two hundred twenty or ____________________________________________________________________ 14 two hundred twenty-one of the penal law. _______________________________________ 15  2. Subparagraph (v) of paragraph (b) of subdivision 3 of section 16 1311 of the civil practice law and rules, as added by chapter 655 of the 17 laws of 1990, is amended to read as follows: 18 (v) if the action relates to a real property instrumentality of a 19 crime, the burden shall be upon the claiming authority to prove those 20 facts referred to in subdivision four-b of section thirteen hundred ten 21 of this article by [clear and convincing] the preponderance of the ________________________ 22 evidence. The claiming authority shall also prove by [a clear and 23 convincing] the preponderance of the evidence that the non-criminal ___________________________ 24 defendant knew that such property was or would be used for the commis- 25 sion of any specified felony [offenses] offense, and [either (A) know- ___ _______ 26 ingly and unlawfully benefitted from such conduct or (B) voluntarily 27 agreed to the use of such property for the commission of such offenses 28 by consent freely given. For purposes of this subparagraph, a non-cri- 29 minal defendant knowingly and unlawfully benefits from the commission of 30 a specified felony offense when he derives in exchange for permitting 31 the use or occupancy of such real property by a person or persons 32 committing such specified offense a substantial benefit that would 33 otherwise not accrue as a result of the lawful use or occupancy of such 34 real property. "Benefit" means benefit as defined in subdivision seven- 35 teen of section 10.00 of the penal law] consented to the use of such ____________________________ 36 property for the commission of a specified felony offense by failing to ________________________________________________________________________ 37 take reasonable precautions within his or her power to prevent the ________________________________________________________________________ 38 occurrence of specified felony offenses upon the property. _________________________________________________________ 39  3. This act shall take effect on the one hundred twentieth day after 40 it shall have become a law, provided that any and all actions necessary 41 to implement the provisions of this act on its effective date are imme- 42 diately authorized and directed to be completed on or before such effec- 43 tive date.