S T A T E   O F   N E W   Y O R K                   
       ________________________________________________________________________
                                                                               
                                         5111                                  
                                                                               
                              1999-2000 Regular Sessions                       
                                                                               
                                   I N  S E N A T E                            
                                                                               
                                    April 21, 1999                             
                                      ___________                              
                                                                               
       Introduced  by  Sen. PADAVAN -- 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 a  non-
         criminal defendant`s knowledge with respect to an instrumentality of a
         crime                                                                 
                                                                               
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:                                               
                                                                               
    1    Section 1. Subparagraph (iv) of paragraph  (b)  of  subdivision  3  of
    2  section  1311  of  the civil practice law and rules, as added by chapter
    3  669 of the laws of 1984, is amended to read as follows:                 
    4    (iv) if the action relates to an instrumentality of a crime, except as
    5  provided for in subparagraph (i) hereof, the burden shall  be  upon  the
    6  claiming authority to prove by a preponderance of the evidence the facts
    7  necessary  to establish a claim for forfeiture and that the non-criminal
    8  defendant either (A) knew {that the instrumentality was or would be used
    9  in the commission of a crime or (B) knowingly obtained his or her inter-
   10  est in the instrumentality to avoid}, OR SHOULD  HAVE  KNOWN,  THAT  THE
   11  INSTRUMENTALITY  WAS,  OR WOULD BE USED, IN A MANNER THAT WOULD DIRECTLY
   12  AND MATERIALLY CONTRIBUTE TO THE COMMISSION OF A CRIME, OR (B) KNEW,  OR
   13  SHOULD  HAVE  KNOWN, THAT ANY INTEREST HE OR SHE OBTAINED IN THE INSTRU-
   14  MENTALITY COULD ASSIST THE CRIMINAL DEFENDANT IN AVOIDING forfeiture.   
   15    S 2. Paragraph (c) of subdivision 3 of section 1311 of the civil prac-
   16  tice law and rules is amended by adding a new subparagraph (v)  to  read
   17  as follows:                                                             
   18    (V) A NON-CRIMINAL DEFENDANT WHO KNOWS, OR SHOULD KNOW, OF PRIOR ILLE-
   19  GAL USE BY A CRIMINAL DEFENDANT OF THE INSTRUMENTALITY OR OTHER PROPERTY
   20  OF  A LIKE NATURE OR KIND, SHALL BE PRESUMED TO KNOW THAT THE INSTRUMEN-
   21  TALITY WAS OR WOULD BE USED IN THE COMMISSION OF A SUBSEQUENT  CRIME  OR
   22  THAT OBTAINING HIS OR HER INTEREST IN THE INSTRUMENTALITY MAY ASSIST THE
   23  CRIMINAL DEFENDANT IN AVOIDING FORFEITURE.                              
   24    S 3. This act shall take effect immediately.                          
                                                                               
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             { } is old law to be omitted.                     
                                                                  LBD11112-01-9
.SO DOC S 5111          *END*                    BTXT                 1999     

Bill S05111
[ Bill Information ]