S T A T E O F N E W Y O R K
________________________________________________________________________
8332
1999-2000 Regular Sessions
I N A S S E M B L Y
May 12, 1999
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Connelly,
Cook, Greene, Hikind, Kaufman, Mayersohn, Millman, Ortiz, Seddio) --
read once and referred 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.
LBD02669-01-9
A. 8332 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 S 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 S 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.
.SO DOC A 8332 *END* BTXT 1999
Bill A08332
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