Vergari v. Lockhart

• Decision Date: 22 June 1989
• Citation: Vergari v. Lockhart, 545 N.Y.S.2d 223, 144 Misc.2d 860 (N.Y. Sup. Ct. 1989)
• Parties: Carl A. VERGARI, District Attorney of Westchester County, Plaintiff, v. Milton LOCKHART, Defendant.
• Court: New York Supreme Court

Page 223

545 N.Y.S.2d 223

144 Misc.2d 860

Carl A. VERGARI, District Attorney of Westchester County, Plaintiff, v.Milton LOCKHART, Defendant.

Supreme Court, Westchester County.

June 22, 1989.

William Scott, Yonkers, for defendant.

Carl A. Vergari, Dist. Atty., Westchester County, White Plains, pro se.

SONDRA M. MILLER, Justice.

The plaintiff District Attorney (D.A.) a claiming authority under New York's forfeiture statutearticle 13-A of the CPLR, seeks forfeiture of $24,510 currency seized from defendant and a money judgment in the sum of $7,296 based on records found in defendant's possession.

Originally the D.A. moved for a default judgment which is now moot because defendant obtained the services of an attorney to defend the forfeiture action.Defendant Lockhart cross moves to dismiss the complaint in the interest of justice pursuant to CPLR 1311(4).Defendant's arguments suggest that defendant is also moving to dismiss pursuant to CPLR 3211(a)(7) on the grounds the complaint fails to state a cause of action which will support forfeiture.Defendant contends his conviction for narcotics possession cannot support forfeiture of proceeds allegedly derived from narcotics sales since he was neither charged with nor convicted of drug trafficking.

Defendant additionally asks to be allowed to use part of the money seized to pay his counsel fees on the appeal of his criminal conviction and for the defense of the civil forfeiture proceeding.Subsequent to the making of the motion, the Appellate Division(over the D.A.'s objection) appointed counsel to prosecute defendant's appeal; nevertheless, defendant still seeks counsel of his own choosing.

The D.A. opposes defendant's motion on the grounds that the money found was acquired through criminal activity arising from a common scheme or plan grounded upon defendant's felony drug conviction (CPLR 1311(1)(a)) and is subject to forfeiture.

Underlying Facts

The facts underlying this proceeding are as follows:

On March 9, 1988, the defendant Lockhart was convicted of possession of a controlled substance, cocaine, in the fourth degree (a class C felony), possession of a weapon (also a felony), and misdemeanor counts of possession of narcotics.

On April 11, 1988he was sentenced to serve an indeterminate sentence of five to ten years.Following defendant's conviction, the D.A. served defendant with a summons and complaint for forfeiture which defendant has not yet answered.

Defendant and a co-defendant were arrested after a car chase during which 39 small bags of cocaine (the subject of defendant's felony drug conviction) were thrown from the car.One bag of cocaine, and $110 cash were found on the defendant's person together with a piece of paper with names and numbers totalling $7,296.This figure, asserts the plaintiff, is the monetary value of defendant's drug transactions.

Following his arrest, the defendant accompanied his arresting officers to his apartment where, pursuant to a lawful search warrant, they searched the premises.They found various drug related paraphernalia such as scales, grinders, spoons and numerous clear plastic bags as well as $24,350 in cash in the defendant's stereo, a small quantity of marijuana (for which misdemeanor defendant was also convicted), a weapon (basis of the additional felony conviction), and sheets of paper with lists of names and numbers.

At defendant's trial, the court refused to admit evidence of the $24,350 in cash, the drug paraphernalia and sheets of paper on grounds of relevance.

Article 13A--Post Conviction forfeiture may be grounded in a common plan or scheme of criminal activity

CPLR 1311 provides:

"A civil action may be commenced ... against a criminal defendant to recover the property which constitutes the proceeds of a crime, the substituted proceeds of a crime or an instrumentality of a crime or to recover a money judgment in an amount equivalent in value to the property which constitutes the proceeds of a crime ....(The forfeiture) action ... shall be civil, remedial and in personam in nature ...[1311(1) ]

"An action relating to a post-conviction forfeiture crime must be grounded upon a conviction of a felony ... or upon criminal activity arising from a common scheme or plan of which such a conviction is a part or upon a count of an indictment ... alleging a felony which was dismissed at the time of a plea of guilty to a felony in satisfaction of such count ...."(1311(1)(a)).

Thus CPLR 1311(1)(a) requires the claiming authority, in a post conviction forfeiture proceeding such as is presented here, to make a prima facie showing that the property sought to be forfeited either directly relates to a felony conviction or is grounded upon criminal activity arising from a common scheme or plan of which the felony conviction is a part.Matter of City of New York v. Cosme, 67 A.D.2d 852, 413 N.Y.S.2d 20.

Once the claiming authority has satisfied this burden, it is incumbent on the defendant to come forward with proof to the contrary.Property Clerk of N.Y.C. v. Hurlston, 104 A.D.2d 312, 478 N.Y.S.2d 906;Property Clerk N.Y.C. v. Batista, 111 A.D.2d 135, 489 N.Y.S.2d 739;CPLR 3018.

At trial of a post conviction forfeiture action against a criminal defendant, the claiming authority has the burden of proving, by a preponderance of the evidence the facts necessary to establish the claim for forfeiture (CPLR 1311(3)(a);Kuriansky v. Natural Mold Shoe Corp., 133 Misc.2d 489, 506 N.Y.S.2d 940).The defendant has the right to a jury trial of all factual issues, CPLR 1311(2).

The resolution of the underlying criminal charge in favor of defendant, is held not dispositive in a forfeiture proceeding.Matter of Property Clerk v. Conca, 148 A.D.2d 301, 538 N.Y.S.2d 268. 3/6/89, 30:1 (1st Dept.).Even a judgment of acquittal or a decision to abandon the criminal charges is not determinative in the forfeiture proceeding as to whether a crime was committed.The civil court must make an independent determination based on a preponderance of the evidence as to whether the seized property is subject to forfeiture.Property Clerk v. Batista, 111 A.D.2d 135, 489 N.Y.S.2d 739;Property Clerk v. Hurlston, 104 A.D.2d 312, 478 N.Y.S.2d 906;Property Clerk v. Corbett, 116 Misc.2d 1097, 457 N.Y.S.2d 175.

Money may be forfeited if it is directly related to criminal activity of which the criminal conviction forms a part.That means the claiming authority must prove (1) the money is the fruits of a common scheme or plan of criminal activity and (2) the underlying felony conviction is a component of that common scheme or plan, 2A Weinstein Korn Miller, N.Y. Civil Practice, Par. 1311.03, which cites People v. Molineux, 168 N.Y. 264, 61 N.E. 286(1901).Molineux first defined and used the term "common scheme or plan" of criminal activity as an evidentiary concept ( supra, at 293, 61 N.E. 286).There, the Court of Appeals declared that the commission of one act must be "plainly perceived" to prove "by [a] visible connection" the commission of another act by the prisoner.Molineux, supra(at 309).The various acts may thus be naturally "explained as caused by a general plan of which they are the individual manifestations."See also2 Wigmore Evidence (3rd Edit) Sect. 304, p. 249(Chadbourne rev. 1979);People v. Fiore, 34 N.Y.2d 81, 85, 356 N.Y.S.2d 38, 312 N.E.2d 174.Weinstein Korn Miller finds the term employed in Article 13-A to expand the use of forfeiture.

Legal Sufficiency of the Complaint pursuant to 3211(a)(7)

The issue presented to the court is whether forfeiture of moneys seized from the defendant may be had when defendant has been convicted of the crime of drug possession only and not of drug sales, but where the circumstances surrounding the crime of which he was convicted evidence a common scheme or plan, including drug sales and trafficking.

On a CPLR 3211(a)(7)motion to dismiss the complaint for failure to state a cause of action, the plaintiff's allegations are given the most favorable construction and are taken as true.In addition to legal arguments, the defendant may use affidavits and other proofs to contradict any factual allegations on which the complaint depends.(McKinney's Consolidated Laws, Book7B, CPLR C3211:24, at 30, Commentary by David Siegel;Foley v. D'Agostino, 21 A.D.2d 60, 248 N.Y.S.2d 121(1st Dept.1964)).Defendant's proofs must be submitted in probative form, i.e., an attorney's affirmation is insufficient.Zuckerman v. City of New York, 49 N.Y.2d 557, 600, 427 N.Y.S.2d 595, 404 N.E.2d 718;Ruiz v. City of New York, 98 A.D.2d 645, 469 N.Y.S.2d 714.The court scrutinizes the pleadings and motion papers to see whether the complaint states a claim for which relief may be granted.

The complaint here alleges that the crime for which defendant was convicted was part of narcotics trafficking activity including acquisition, possession, sale and distribution of narcotics, and that the money, ($24,510), was both obtained from and used in the commission of the illegal narcotics activity of which the criminal possession conviction was a part.The complaint further states that records seized from defendant reflect sale of narcotics and resulting proceeds in the sum of $7,296.Plaintiff alleges the sum recorded on the paper slips in defendant's possession represents additional fruits of defendant's criminal activity which is separate from and in addition to the money seized in defendant's apartment.Therefore plaintiff seeks a separate money judgment in the amount of $7,296.

In view of the dearth of authority relating to Article 13A(enacted relatively recently), the forfeiture provisions of the Administrative Code of the City of New York, Section14-140(e)(1)[formerly 435-4.0(e)(1) enacted prior to CPLR Art. 13A], are instructive in Article 13A actions.Under the New York City Code, a prisoner who derives his claim to money which is the proceeds of crime or derived from crime or has been used...