You may have seen the billboards in and around New York City – if you’re arrested for Driving While Intoxicated, the NYPD says it will take your car. Can this be true? Yes, it is, and you’ll need a good criminal defense lawyer on your side to help you protect your property.
In New York, law enforcement can seek to take any proceeds or instrumentalities of criminal activity. In some cases, they can take real property, including your home and other types of real estate. This process, called asset forfeiture, can occur even when you are not convicted of a crime.
What is Asset Forfeiture?
Typically, law enforcement will seize proceeds and instrumentalities of criminal activity at the time a defendant is arrested; sometimes, assets will be seized during a pending criminal investigation prior to any arrest. The proceeds of such criminal activity might include cash, funds in bank accounts, stocks and investments, electronics, jewelry, clothing, vehicles, and in some cases real property. An instrumentality of crime can be anything that is used to facilitate the criminal offense.
When an item is seized, it is kept in the custody of law enforcement and cannot be released to the defendant without a release from the investigator or prosecutor. If law enforcement claims there is probable cause to believe the assets are related to a criminal offense, such assets can usually simply be seized and held without first allowing the defendant the opportunity to argue against said seizure.
If law enforcement wishes to permanently keep the proceeds or instrumentalities of criminal activity, the items may be taken by a process called asset forfeiture. Such items may be subject to either criminal asset forfeiture or civil asset forfeiture. In criminal asset forfeiture, law enforcement may keep the proceeds or instrumentalities of criminal activity if the defendant has been convicted of a criminal offense. Pursuant to Article 480 of the New York State Penal Law, criminal asset forfeiture is part of the sentencing phase in a criminal case.
Civil asset forfeiture is a different matter entirely. Civil asset forfeiture is governed by Article 13-a of New York State’s Civil Practice Law & Rules. A person need not be convicted of a crime in order for their personal or real property to be forfeited in this manner. The standard of proof for civil asset forfeiture is merely a preponderance of the evidence, rather than the beyond a reasonable doubt standard used for criminal cases. Such a burden means it is much easier for your assets to be forfeited to law enforcement.
How Can I Stop Law Enforcement From Taking My Stuff?
The first thing you should do whenever law enforcement seizes your property is ask for a voucher. It has anecdotally been reported that law enforcement may not give you a voucher for your property and then later claim that the property is “unclaimed,” meaning it will automatically become the property of law enforcement without a judge reviewing whether forfeiture is warranted.
If your property is seized and/or if you are arrested, you should immediately contact a criminal defense attorney to discuss your options. When you meet with your attorney, show them any paperwork that you received from law enforcement, including the property voucher. Thereafter, if you receive any paperwork regarding a potential forfeiture proceeding, make sure your attorney gets a copy of those papers.
It is important to note that police officers are not the only ones who can take your property. Your personal and real property may be seized by any state law enforcement member, including District Attorneys, Attorneys General, and federal agents including the Internal Revenue Service, Drug Enforcement Agency, and many others. Virtually all state and federal law enforcement have the authority to seize your property if they have probable cause to believe it is a proceed or instrumentality of a criminal offense.
- Penal Law Article 480
- C.P.L.R. Article 13-a
- Institute for Justice, Policing for Profit: The Abuse of Civil Asset Forfeiture (Second Edition), “New York.” Available at https://ij.org/pfp-state-pages/pfp-new-york/ (last accessed August 8, 2018).