New York Criminal and Civil Forfeitures

New York Law JournalVolume 222, Number 29Copr. 1999 NLP IP CompanyTuesday, August 10, 1999The Lawyer’s Bookshelf

NEW YORK CRIMINAL AND CIVIL FORFEITURES By Steven L. Kessler.Gould Publications, Binghamton, N.Y.998 pages

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reviewed By Robert J. Aniello

Forfeiture is big business. Utilizing forfeiture laws to stake their claim to the proceeds and instrumentalities of illegality, state and federal governments have become partners with the mob, drug dealers, prostitutes and now in New York City drunk drivers. This governmental zeal to use an additional weapon in the arsenal against crime also means big business for defense lawyers.

Author Steven Kessler’s comprehensive handbook on the myriad statues and rules that make up New York’s forfeiture law provides an excellent resource for prosecutors and defense attorneys alike. Indeed, his extensive discussion of constitutional issues and federal law makes the book’s title too restrictive. In addition to providing an in-depth discussion of New York’s until-now little- known statutory scheme, this handbook analyzes dozens of U.S. Supreme Court and lower federal court decisions applicable to federal forfeiture issues and the forfeiture laws of other states.

Many criminal practitioners, particularly white-collar lawyers, likely are unaware of even the existence of New York’s extensive array of forfeiture laws. The author s apparent experience in this area can help make an expert out of each of us. Separate chapters of the handbook are devoted to each of the major and not-so- major statutes that New York has enacted over the years and which recently have come into vogue by prosecutors. In each chapter, the author discusses the nature of the statute, its provision and the case law that interprets and limits the power that the Legislature has bestowed on prosecutors and government officials. White-collar practitioners, narcotics prosecutors and defenders of narcotics cases, DWI lawyers, and even landlord-tenant lawyers faced with troublesome tenants, will find useful the analysis of the forfeiture provisions contained in New York’s Civil Practice Law and Rules, Penal Law and Vehicle and Traffic Law, as well as his discussion of the “illegal tenant use” provisions popularly known as Bawdy House laws.

The book also includes a handy reprint of the many forfeiture laws and selected legislative histories. What will be found most useful, particularly by prosecutors, are the almost 400 pages of forfeiture forms largely borrowed by Kessler from his alma mater, the Bronx District Attorney’s Office.

New York’s primary civil forfeiture statute is a uniquely drafted in personam statute. In most cases, in personam forfeiture laws, including the more familiar federal RICO statute, are used in the context of criminal proceedings. Civil forfeiture laws generally contemplate in rem proceedings, or proceedings against property. New York’s in personam forfeiture provisions contained in Article 13-A are entirely separate from criminal proceedings and were designed with a number of protections not found in other forfeiture statutes to temper its punishment. One of the protections is that a prosecutor who handles a related criminal action may not prosecute the civil forfeiture action.

Again demonstrating the separation of New York’s civil forfeiture law from criminal proceedings, CPLR Article 13-A provides for forfeiture of crime proceeds, substitute proceeds and instrumentalities of crimes, but a criminal conviction is not a prerequisite for forfeiture. Indeed, the author observes that in 85 percent of forfeiture cases, the property owner is never charged with a crime.

Mr. Kessler’s thorough analysis of Article 13-A includes the statute s legislative history, available provisional remedies and pre-proceeding subpoena practice. He also provides a useful analysis of the effect or more likely, lack of effect that a plea bargain has on a subsequent forfeiture proceeding.

The evolving constititutional law involving the application of the Double Jeopardy clause to forfeiture proceedings also is extensively discussed and analyzed. That discussion, which is contained in the handbook’s section of CPLR Article 13-A, warrants its own chapter because it is equally relevant to New York s other forfeiture statutes as well as to forfeiture provisions in other jurisdictions.

Unfortunately, the book’s organization makes it likely that this valuable information may be overlooked by readers who consult the handbook in connection with one of New York’s other forfeiture statutes. This organizational shortcoming extends to much of the other important federal case law that Kessler delves into. The extensive research and survey of cases from federal courts and the courts of other states that is applicable to forfeiture statutes could be more valuable if they were set off in a manner that alerted the reader to their applicability. Nevertheless, a user of this handbook will benefit greatly from the author’s extensive research and his collection of the hundreds of New York state court and other decisions that make up this book.

Another New York statute that recently has come into fashion for separating the looters from their loot is the Organized Crime Control Act of 1986 (OCCA), a/k/a “Baby RICO.” OCCA is more restrictive than its federal counterpart and essentially is a result of New York legislators learning from Washington s mistakes. Baby RICO was born 16 years after Congress hatched RICO. Unlike RICO, OCCA provides no private right of action. Again, however, the book’s title is too limiting for

Kessler’s extensive analysis. In his discussion of OCCA, the author is not satisfied with merely examining its forfeiture provisions. He examines OCCA s legislative history and its similarities and differences from RICO. In many sections of the book, this former prosecutor treats us to his born- again view of “outrageous” conduct and overzealous misuse of the forfeiture laws by state and city officials. Thus, in the preliminary pages, added just prior to the book s printing, Kessler explores and criticizes Mayor Giuliani’s new initiative to seize the vehicles of tipsy drivers.

In discussing other provisions of New York City’s Administrative Code, the author divulges his anecdotal personal observations of the morass in which one of his clients found himself because of the bureaucracy of the police. In analyzing the code and the extensive case law it has spawned, he concludes that “the current procedures are nothing short of ridiculous, unfair and prejudicial to the defendant.” (page 178) Like many former prosecutors, he has apparently come a long way.

Given the myriad forfeiture provisions available to state and local officials, the relative restraint in using these provisions in the past is likely to be lifted soon. Prosecutors and government officials throughout the county have shown an increasing appetite to punish criminals both penally and financially.

From the halls of Princeton-Newport to the apartments of drug dealers and prostitutes, to Rudy’s clean streets, New York practitioners on both sides of the fence will face an increasingly greater need to address forfeiture issues to fully represent their clients interests. Rather than starting from scratch, this handbook, while not meant for reading on the beach, provides a terrific addition to a law library.

Robert J. Anello is a litigation partner in Morvillo, Abramowitz, Grand, Iason & Silberberg.

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