Forfeiture Proceedings and Restitution Orders under New York’s Civil Practice Law and Rules and the Mandatory Victims Restitution Act

In actions relating to forfeiture and restitution, criminal law can intersect with civil procedure rules and even rely on these rules for enforcement. New York’s Civil Practice Law and Rules (C.P.L.R.) offer a few sections that can be used to enforce remedies obtained or recover property that was used in the commission of a crime. Some remedies may be as simple as docketing a judgment. Others have their own article dedicated to their enforcement. Meanwhile, at the federal level, the Mandatory Victims Restitution Act governs restitution.

Forfeiture and the C.P.L.R.

The C.P.L.R. has its own detailed article covering the procedure for forfeiture. Section 1311 states that a civil action may be commenced by the appropriate claiming authority, such as a district attorney’s office, against a criminal defendant or against a non-criminal third-party defendant to recover the property that constitutes the proceeds of a crime or instrumentality of a crime. Interestingly, in a forfeiture action brought under this section, all defendants have the right to a trial by jury on any issue of fact. The burden is different on the claiming authority depending on whether the forfeiture is sought pre-conviction (clear and convincing) or post-conviction (preponderance of the evidence). Additionally, in a pre-conviction forfeiture, there is a presumption that any currency or negotiable instrument found in close proximity to a controlled substance unlawfully possessed by the defendant represents proceeds of the pre-conviction forfeiture crime. This presumption can only be rebutted by credible and reliable evidence.

This peculiar section of the civil law also provides that a forfeiture action must be commenced by service of the summons with notice and a certified complaint. The claiming authority must be careful also to name all the parties that may have a right or interest in the property sought to be forfeited. Notice must also be given to the state division of criminal justice services, and said entity must also be provided with any stipulation that the parties might enter into regarding the property sought to be forfeited. If a person having an interest in the forfeited property was not provided proper notice, that person has one year from the entry of judgment to petition the court for remission or mitigation of the forfeiture and restoration of the property or proceeds of such sale.

If the claiming authority can show that there is a substantial probability that it will be able to demonstrate they will prevail at trial regarding the property sought to be forfeited and that failure to enter a provisional order may result in the property being destroyed or moved; that the need to preserve the property outweighs the hardship on any party against whom the forfeiture order is sought; and that, in an action relating to real property, the entry of the order will not substantially diminish the right of any other person other than the defendant, then the court may issue a provisional order such as an attachment, injunction, or receivership. An order of attachment that is delivered to a sheriff shall make known the claiming authority’s interest in the property sought to be forfeited, superior to any other transferred, other than a transferee that acquired the property for fair consideration and without knowledge of the order of attachment. An order of attachment may be granted without notice. However, it is important to note that such an order must be confirmed by the claiming authority in no more than five days after levy; otherwise, it risks having no further effect. Such an order may also be obtained prior to the issuance of a summons and complaint, however, provided that if that is done, the claiming authority must file the order and the papers on which it was granted, along with the summons and complaint, within ten days of the granting of such order. Service must be completed within 60 days after the order is granted. The order of attachment is void after 90 days except as to property already in the possession of the sheriff.

If a defendant or a person having an interest in the property sought to be forfeited brings a motion seeking an order vacating the order of attachment, the burden is on the claiming authority to establish the grounds for the attachment and for continuing the levy and the probability of success on the merits. Special rules apply to forfeiture of real property, preliminary injunctions, and restraining orders.

Mandatory Victims Restitution Act

Yet another, albeit less cumbersome, means by which criminal law intersects with civil procedure rules—or rather by which criminal law needs civil procedure rules for its enforcement—is the Mandatory Victims Restitution Act (hereinafter “the Act”). In a criminal sentencing proceeding, a restitution order must specify the amount of restitution owed to the victim and the manner in which or the schedule according to which it must be paid. The Act provides that at the request of the victim, the clerk of the court shall issue an abstract of a judgment certifying that a judgment has been entered in favor of the victim for the amount specified. After docketing of the judgment, the abstract of the judgment becomes a lien on the property of the defendant located in the state. Once a judgment is so registered, it can be enforced by the victim like any other money judgment pursuant to Article 52 of the C.P.L.R. The Act also provides that the restitution can be civilly enforced by the respective prosecuting agency.

Diligent criminal litigators are served well by becoming familiar with the forfeiture procedure of the C.P.L.R., as well as instructing the victims of crimes of their rights and the procedure required to enforce these under the Mandatory Victims Restitution Act.