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Lawyer works without compensation

In this drug crime, defendant was arrested and charged with the following crimes and violations to wit: (1) criminal possession of a controlled substance in violation of Penal Law Sec. 220.09, a Class “C” felony; (2) criminal use of drug paraphernalia, second degree in violation of Penal Law Sec. 220.50, a Class “A” misdemeanor; (3) unlawful possession of marijuana in violation of Penal Law Sec. 221.05, a violation; (4) unlawful possession of fire works in violation of Penal Law Sec. 270.00, a violation.

Thereafter, the defendant appeared before the Justice of the Peace in the Justice Court of the Town of Ellicottville, New York without counsel. The District Attorney of Cattaraugus County was not present. Neither was any Assistant District Attorney of Cattaraugus County present. Other than the defendant, the only other persons present were the presiding Justice and the arresting officer who was a Sergeant Investigator of the New York State Police.

The defendant was permitted to enter a plea to the crime of criminal possession of a controlled substance in the Seventh Degree in violation of Penal Law, a Class “A” misdemeanor. Upon this plea, the defendant was fined $100.00 and assessed a $40.00 surcharge.
It is of particular significance to this court that the defendant’s plea was to a misdemeanor. It is also significant that such plea was accepted in satisfaction of the other charges against the defendant, particularly including the felony count of criminal possession of a controlled substance, an alleged violation of Sec. 220.09 of the Penal Law. There is no evidence and in fact no allegation that any other criminal charges have been brought or are contemplated to be brought against the defendant or any other party

It is the position of the defendant that the acceptance of the plea of guilty to a misdemeanor in satisfaction of the felony charge terminates the right of the District Attorney to proceed for forfeiture under Article 13A C.P.L.R. To the contrary the District Attorney posits that his statutory right to proceed for forfeiture is preserved and is authorized under Article 13A C.P.L.R. In support of this position the District Attorney urges that since an Article 13A, forfeiture proceeding, can be brought against a person not even charged or convicted of any crime, that thus a forfeiture proceeding against one convicted of a misdemeanor crime is appropriate.

The court examines the argument of the District Attorney. A review of Article 13A discloses that a forfeiture proceeding may be brought for a “pre-conviction forfeiture crime”. A pre-conviction forfeiture crime being defined to mean any “felony defined in criminal law. Article 220 of the Penal Law relates to controlled substances offenses. It contains statutory provisions which constitute crimes some of which are felonies and some misdemeanors. Section 221.30 relates to the crime of marijuana possession in the first degree. It is a Class “C” felony. Section 221.55 Penal Law deals with the criminal sale of marijuana in the first degree, a Class “C” felony.

From the definitions set forth the court deduces that the only crimes for which a forfeiture may be sought and ordered in advance of a conviction are the felonies set forth in Article 220 of the Penal Law and the two specified felonies which are contained in Article 221 of the Penal Law to wit: the felony of criminal possession of marijuana in the first degree in violation of Sec. 221.30 and the crime of criminal sale of marijuana in the first degree in violation of Sec. 221.55 of the Penal Law.

The Court ruled that an examination of Article 13A CPLR is in order.

Traditionally, forfeiture actions were in rem proceedings, taken against ‘guilty’ property as opposed to the owner of the property. Such in rem proceedings were viewed as civil in nature although they did have punitive characteristics. In contrast, the punitive sanctions of an in personam forfeiture which were directed against the offender were viewed as criminal in drug crime in nature and the forfeiture a criminal penalty.

The key issue for resolution in construing any forfeiture statute as it relates to the double jeopardy provision of the Fifth Amendment is whether the forfeiture authorized by the statute is punishment or a remedial device. If the penalty imposed is criminal in nature then all constitutional safeguards relative to criminal proceedings apply. It is contrarywise if the penalty is determined to be a civil one. The test for whether a forfeiture penalty statute is civil or criminal was determined in several cases. The test there posited was twofold.
First, did the Legislature which enacted the statute indicate directly or impliedly whether the penalties were deemed civil or criminal. Secondly, if the Legislature indicated that the penalties were civil and remedial in nature, are the penalties “so punitive either in purpose or effect as to negate that intention?”

Article 13A CPLR easily passes the first test because it is provided that forfeiture under the statute “shall be civil, remedial and in personam in nature and shall not be deemed to be a penalty or criminal forfeiture for any purpose.” Weapons possession might be different.

This court concurs in the analysis and conclusion just stated. The briefs of both the plaintiff District Attorney and that of the Attorney General in support of the District Attorney urge the decision of a court case and rely heavily upon it as supportive of the action brought and supportive of the proposition that an Article 13A CPLR forfeiture proceeding is civil in nature.
In the opinion of this court reliance upon One Assortment of 89 Firearms is misplaced. First it is clear that the forfeiture proceeding there was an in rem action brought under a statute which specifically provided that the forfeiture action was “in the nature of a proceeding in rem,” in contrast to the in personam action at bar. The court has previously noted that in rem forfeiture proceedings are traditionally held to be regarded as civil in nature. The most important feature of the decision, however, lies in the reason stated by the court which permitted the forfeiture.

In sum since the Supreme Court only permitted the forfeiture in an in rem forfeiture action upon the basis that the sanction was not limited to criminal misconduct, the decision in One Assortment of 89 Firearms not only does not support the plaintiff’s action; it is clearly to the contrary as applied to the in personam action at bar brought under Article 13A CPLR.
The court strongly supports the ends which Article 13A CPLR seeks to accomplish. However, it does not support it with such zeal that time proven constitutional safeguards can be abrogated. Because there exists other constitutional deficiencies to Article 13A CPLR, this court will leave for Appellate determinations the issue of whether the provisions of the Article fail to pass muster under the Mendoza-Martinez tests and thus must be considered criminal in nature to such extent that they deny the protection of the Fifth Amendment against double jeopardy.

On the basis of this rule the court held that a forfeiture of the defendant’s personal papers could not be ordered on the defendant’s refusal to deliver them. The privilege against self-incrimination as provided by the Fifth Amendment was the basis of the decision.
Since the procedure provided under Article 13A CPLR requires the defendant to answer drug crime related charges by admitting or denying them at the risk of a judgment by default against him, it denies the defendant the protection against self-incrimination provided under the Fifth Amendment. It also denies the defendant the protection of Article 1 Sec. 6 of the New York Constitution and imposes a requirement completely contrary to Sec. 4501 CPLR which states in relevant part, “this section does not require a witness to give an answer which will tend to accuse himself of a crime or to expose him to a penalty or a forfeiture”
“Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the states by reason of the Fourteenth. Second is the right to trial by jury. Third is the right to confront one’s accusers. We cannot presume a waiver of these three important federal rights from a silent record.”
It was because of the waiver of these constitutional rights by plea that both our Court of Appeals and the Supreme Court established requirements for its acceptance by the court.
However certain it is that the defendant did not waive his constitutional rights or make an admission of facts as to any of the crimes charged in the indictment, nor to any other uncharged crimes.

It is not only the absence of a waiver of rights at least to all crimes like sex crimes, other than the one to which the defendant pleaded guilty, with the concomitant privilege of being able to assert those rights in a later criminal or civil proceeding that is of importance.

It is also important to note that the plea which the defendant entered was a result of plea bargaining. It is this feature that distinguishes one case.

If a District Attorney is precluded from bringing a criminal proceeding against a defendant on charges which were dismissed as a result of plea bargaining, should he be entitled to bring a civil proceeding of forfeiture for the same crimes? This court thinks not.

Finally if this court is in error on each and every constitutional consideration set forth, the situation presented in the cases at bar not only permits but demands that the forfeiture action be dismissed in the interest of justice as provided in subd. 4 of Sec. 1311 CPLR. It is so ordered.

While a requirement that forfeiture be made a matter of plea bargaining either by legislative action or judicial determination would obviate the several constitutional issues presented in the case at bar and similar cases, it would not correct the constitutional defects in Article 13A CPLR which permit a prosecutor to initiate and conclude a forfeiture for enumerated drug crime without the necessity of ever proceeding against the defendant by way of an information or an indictment charging crimes like robbery in a criminal action.

The decision herein is written in compliance with the requirements of subd. 4(e) of CPLR 1311 requiring this court to “issue a written decision stating the basis for an order”

This court acknowledges with grateful appreciation the efforts of the lawyer who accepted an assignment of this court to represent the defendant on the forfeiture action herein without compensation.

For all of the reasons stated herein the motion of the defendant to dismiss the complaint is granted.

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