Amd S1349, CPLR; amd S700, County L; add S6-t, Gen Muni L
Provides for greater accountability for seized assets by authorizing and directing the chief fiscal officer of a city, town, village or county to establish an asset forfeiture fund to be separately maintained; requires that proceeds from the sale of property and other moneys realized as a consequence of any forfeiture distributed to the district attorney, sheriff or other claiming agent of any county, town, city and village of which the claiming agent is a part, shall be deposited to such fund.
STATE OF NEW YORK
________________________________________________________________________
4751
2009-2010 Regular Sessions
IN SENATE
April 27, 2009
___________
Introduced by Sen. SCHNEIDERMAN -- 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, the county law and the
general municipal law, in relation to greater accountability for
seized assets
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The opening paragraph of subdivision 2 of section 1349 of
2 the civil practice law and rules, as added by chapter 655 of the laws of
3 1990, is amended to read as follows:
4 If any other provision of law expressly governs the manner of disposi-
5 tion of property subject to the judgment or order of forfeiture, that
6 provision of law shall be controlling. Upon application by a claiming
7 agent for reimbursement of moneys directly expended by a claiming agent
8 in the underlying criminal investigation for the purchase of contraband
9 which were converted into a non-monetary form or which have not been
10 otherwise recovered, the court shall direct such reimbursement from
11 money forfeited pursuant to this article. Upon application of the claim-
12 ing agent, the court may direct that any vehicles, vessels or aircraft
13 forfeited pursuant to this article be retained by the claiming agent for
14 law enforcement purposes, unless the court determines that such property
15 is subject to a perfected lien, in which case the court may not direct
16 that the property be retained unless all such liens on the property to
17 be retained have been satisfied or pursuant to the court's order will be
18 satisfied. In the absence of an application by the claiming agent, the
19 claiming authority may apply to the court to retain such property for
20 law enforcement purposes. Upon such application, the court may direct
21 that such property be retained by the claiming authority for law
22 enforcement purposes, unless the court determines that such property is
23 subject to a perfected lien. If not so retained, the judgment or order
24 shall direct the claiming authority to sell the property in accordance
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01586-03-9
S. 4751 2
1 with article fifty-one of this chapter, and that the proceeds of such
2 sale and any other moneys realized as a consequence of any forfeiture
3 pursuant to this article shall be deposited to an asset forfeiture fund
4 established pursuant to section six-t of the general municipal law and
5 shall be apportioned and paid in the following descending order of
6 priority:
7 § 2. Section 1349 of the civil practice law and rules is amended by
8 adding a new subdivision 5 to read as follows:
9 5. Proceeds from the sale of property and other moneys realized as a
10 consequence of any forfeiture distributed to the claiming agent or
11 claiming authority of any county, town, city, or village of which the
12 claiming agent or claiming authority is a part, shall be deposited to an
13 asset forfeiture fund established pursuant to section six-t of the
14 general municipal law.
15 § 3. Subdivision 2 of section 700 of the county law is amended to read
16 as follows:
17 2. Within thirty days after the receipt of any fine, penalty, recovery
18 upon any recognizance, proceeds from the sale of property and other
19 moneys realized as a consequence of any forfeiture, or other money
20 belonging to the county, the district attorney or the claiming authority
21 shall pay the same to the county treasurer. Not later than the first day
22 of February in each year, the district attorney shall make in duplicate
23 a verified true statement of all such moneys received and paid to the
24 county treasurer during the preceding calendar year and at that time
25 shall pay to the county treasurer any balance due. One statement shall
26 be furnished to the county treasurer and the other to the clerk of the
27 board of supervisors. A district attorney who is not re-elected shall
28 make and file the verified statement and pay any balance of such moneys
29 to the county treasurer within thirty days after the expiration of his
30 term.
31 § 4. The general municipal law is amended by adding a new section 6-t
32 to read as follows:
33 § 6-t. Asset forfeiture fund. 1. As used in this section:
34 a. The term "governing board", insofar as it is used in reference to a
35 village, shall mean the board of trustees thereof; insofar as it is used
36 in reference to a town, shall mean the town board thereof; insofar as it
37 is used in reference to a county, shall mean the board of supervisors
38 thereof; insofar as it is used in reference to a city, shall mean the
39 "legislative body" thereof, as that term is defined in subdivision seven
40 of section two of the municipal home rule law.
41 b. The term "chief fiscal officer" shall mean:
42 (i) In the case of counties operating under (1) an alternative form of
43 county government or charter enacted as a state statute or adopted under
44 the alternative county government law or by local law, the official
45 designated in such statute, consolidated law or local law as the chief
46 fiscal officer, or, if no such designation is made therein, the official
47 possessing powers and duties similar to those of a county treasurer
48 under the county law as shall be designated by local law.
49 (2) In the case of counties not operating under an alternative form of
50 county government or charter enacted as a state statute or adopted under
51 the alternative county government law or by local law, the treasurer,
52 except that, in the case of counties having a comptroller, it shall mean
53 the comptroller.
54 (ii) In the case of cities, the comptroller; if a city does not have a
55 comptroller, the treasurer; if a city has neither a comptroller nor a
56 treasurer, such official possessing powers and duties similar to those
S. 4751 3
1 of a city treasurer as the finance board shall, by resolution, desig-
2 nate. A certified copy of such designation shall be filed with the state
3 comptroller and shall be a public record.
4 (iii) In the case of towns, the town supervisor; if a town has more
5 than one supervisor, the presiding supervisor.
6 (iv) In the case of villages, the village treasurer.
7 c. The term "claiming authority" shall mean the district attorney
8 having jurisdiction over the offense or the attorney general for purpose
9 of those crimes for which the attorney general has criminal jurisdiction
10 in a case where the underlying criminal charge has been, is being or is
11 about to be brought by the attorney general, or the appropriate corpo-
12 ration counsel or county attorney, provided that the corporation counsel
13 or county attorney may act as a claiming authority only with the consent
14 of the district attorney or the attorney general, as appropriate.
15 d. The term "claiming agent" shall mean and shall include all persons
16 described in subdivision thirty-four of section 1.20 of the criminal
17 procedure law, and sheriffs, undersheriffs and deputy sheriffs of coun-
18 ties within the city of New York.
19 2. The governing board shall authorize the establishment of an asset
20 forfeiture fund for any claiming agent or claiming authority as is
21 deemed necessary for the proceeds of sale of property and other moneys
22 realized as a consequence of any forfeiture. The separate identity of
23 such fund shall be maintained.
24 3. There shall be paid into the asset forfeiture fund all proceeds
25 realized as a consequence of any forfeiture action.
26 4. The moneys in the asset forfeiture fund shall be deposited and
27 secured in the manner provided by section ten of this article. The
28 moneys in such fund so deposited shall be kept in a separate bank
29 account. The chief fiscal officer may invest the moneys in such fund in
30 the manner provided in section eleven of this article. Any interest
31 earned or capital gains realized on the moneys so deposited or invested
32 shall accrue to and become part of each such fund. The separate identity
33 of such fund shall be maintained, whether its assets consist of cash,
34 investments, or both.
35 5. Every claim for the payment of money from the asset forfeiture fund
36 must be accompanied by a written certification that the expenditure is
37 in compliance with purposes allowed by law. Payments from such fund
38 shall be made by the chief fiscal officer subject to the required
39 certification and the determination of fund sufficiency.
40 6. The chief fiscal officer, at the termination of each fiscal year,
41 shall render a detailed report of the operation and condition of the
42 asset forfeiture fund to the governing board. Such report shall be
43 subject to examination and audit. The chief fiscal officer may account
44 for such fund separate and apart from all other funds of the village,
45 town, county, or city.
46 § 5. This act shall take effect on the one hundred eightieth day after
47 it shall have become a law.
