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CPLR 1312(3)


This is a motion by the plaintiff herein, the District Attorney of Queens County, pursuant to the recently enacted Article 13-A of the CPLR, entitled “Proceeds of a Crime Forfeiture”, for a preliminary injunction enjoining the defendants pending the determination of this forfeiture action, from selling, giving, transferring, pledging, mortgaging or otherwise alienating or encumbering their right, title and interest or any part thereof in certain parcels of real property located in Monroe County, Pennsylvania, which were allegedly purchased by the defendants with the “proceeds of a crime”.

A Queens County Criminal lawyer said that an eighty-four year old widow, resided alone in an apartment wherein she was being cared for by the defendant, a nurse, who was living with the co-defendant, the superintendent of the building. It appears that the defendants gained the trust and confidence of the widow, and convinced her that a third party had taken a “contract” on her life, whereby she was to be murdered for a fee. The defendants told the widow that if she would pay them the money that would go to the prospective murderer, they, in turn, would pay off the contract, thereby sparing her life. Believing this to be true, the widow wrote a series of sixteen checks to the order of defendant, in the aggregate sum of $154,500.00, which defendant deposited in her bank account. The original cancelled checks were obtained from defendant’s pocketbook at the time of her arrest, and copies of these checks were annexed to the moving papers.

It appears that the defendants employed the use of terror tactics to accomplish the coercion of the widow, in that at least on one occasion co-defendant, disguised and masked, entered the apartment posing as the would-be murderer, threatened her life in defendant’s presence, and demanded additional payments.

It further appears that in May1985, the widow sustained severe injuries causing her to be hospitalized from a “fall” down a dumbwaiter shaft in her apartment, which occurred under suspicious circumstances. On that date, a male armed with a pistol, wearing a blue jacket and a mask, gained access to the apartment. He placed an artificial penis on a table and told the widow that this is what he did to people he didn’t like. Thereupon, he forced the widow at gunpoint to write out and sign a suicide note. He then pushed the widow, who fell and cut her head. Thereafter, the intruder threw the widow down the dumbwaiter shaft, causing her to fall approximately two stories.

Subsequently, pursuant to a search warrant, the police recovered a weapon pistol, an artificial penis, and a blue jacket stained with what appeared to be blood from the defendants’ apartment.

Based upon an investigation of the foregoing facts, which included interviews with the widow at the hospital on four separate occasions, The detective arrested the defendants and were indicted for the following crimes: Attempted Murder in the Second Degree; Assault in the First Degree; Grand Larceny in the First Degree by Extortion; Grand Larceny in the Second Degree; Criminal Possession of Stolen Property in the Second Degree; Coercion in the Second Degree; and Conspiracy in the Fourth Degree.

The crimes upon which a forfeiture action may be based are divided into two types, pursuant to the nomenclature of Article 13-A of the CPLR, as follows:

(I) CPLR 1310(5) defines “Post-conviction forfeiture crime” to mean any felony defined in the penal law or any other chapter of the consolidated laws of the state; and

(II) CPLR 1310(6) defines “Pre-conviction forfeiture crime” to mean only a felony defined in article 220 or section 221.30 or 221.55 of the penal law, which are essentially drug crimes.

The main distinction between the two types of forfeiture crimes is that in the criminal case of a “pre-conviction forfeiture crime”, the forfeiture action need not be based on conviction for the crime, and is meant to be a more effective tool in the battle against drug trafficking.

The defendants herein have been indicted for crimes which fit into the category of “post-conviction forfeiture crimes”. Although this Court may not grant forfeiture in this matter until conviction has occurred, a forfeiture action may be commenced, and one of the provisional remedies provided under Article 13-A may be granted, prior to any conviction having occurred.

As stated, the plaintiff “claiming authority” has requested herein the provisional remedy of a preliminary injunction enjoining the defendants from disposing of certain parcels of real property located in Pennsylvania which as “substituted proceeds of a crime” are subject to forfeiture.

Additionally, in order to obtain a preliminary injunction under CPLR 1334 the claiming authority must show grounds for relief as required by CPLR 1312(3), which provides:”A court may grant an application for a provisional remedy when it determines that: (a) there is a substantial probability that the claiming authority will prevail on the issue of forfeiture and that failure to enter the order may result in the property being destroyed, removed from the jurisdiction of the court, or otherwise be unavailable for forfeiture; and (b) the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order may operate.”

The plaintiff submits that in order to preserve the availability of the two parcels of realty in Pennsylvania for forfeiture, a preliminary injunction is necessary.

The Court finds that given the circumstances of this criminal case, there is a substantial probability that the claiming authority will prevail on the issue of forfeiture. In arriving at this conclusion, the Court has considered, inter alia, the evidence to be introduced at a criminal trial on Grand Larceny charges against the defendants, which the claiming authority already has at its disposal.

In answer to the query herein regarding the extra-territorial powers of the Court, in a forfeiture order, the following seems to be right on point: “Because the forfeiture action is in personam, the court would also appear to have the power, in the forfeiture order, to direct a defendant to dispose of property outside the state in order to satisfy the judgment”. This In Personam phenomenon was explained in a case as follows: “[W]hen the subject-matter of a suit in a court of equity is within another state or country, but the parties within the jurisdiction of the court, the suit may be maintained and remedies granted which may directly affect and operate upon the person of the defendant, and not upon the subject-matter, although the subject-matter is referred to in the decree, and the defendant is ordered to do or refrain from certain acts toward it, and it is thus ultimately but indirectly affected by the relief granted. In such case, the decree is not of itself legal title. It must be executed by the party, and obedience is compelled by proceedings in the nature of contempt, attachment, or sequestration. On the other hand, where the suit is strictly local, the subject-matter is specific property, and the relief, when granted, is such that it must act directly upon the subject-matter, and not upon the person of the defendant, the jurisdiction must be exercised in the state where the subject-matter is situated.”

It is the opinion of this Court that since the forfeiture action herein is In Personam, the Court would have the power on a motion for preliminary injunction to issue a decree that restrains or orders the commission of acts or affects property outside the state, as a provisional remedy. To the extent that the following statement is contrary to this holding, this Court is not in agreement with it:

“The court would not appear to have this power with respect to the granting of provisional remedies, however, since one of the assumptions underlying the necessity for a provisional remedy is that the property is within the jurisdiction of the court and that some action is necessary in order to prevent its removal. See CPLR 1312, subdivision 3(a).”

This Court interprets CPLR 1312(3)(a), which provides “that failure to enter the order may result in the property being destroyed, removed from the jurisdiction of the Court, or otherwise be unavailable for forfeiture” as explicitly including other eventualities besides the possible removal of the property from the jurisdiction of the Court, as being a basis for the granting of a provisional remedy; such as the situation herein, where the properties in Pennsylvania might “otherwise be unavailable for forfeiture”. In fact, the same text seems to reverse itself in another section, and makes the following statement which this Court fully endorses, regarding the specific provisional remedy of a preliminary injunction, and which is the specific subject matter herein:

“Inasmuch as the claiming authority apparently may seek the forfeiture of stolen property located outside the state, see § 1311.07 [sic, should be § 1311.08], the question arises as to whether a preliminary injunction may be secured with respect to that property. Although New York courts have the power to enjoin conduct affecting property outside the state, they have been reluctant to exercise this power. See § 6301.26. Assuming however, that a court has the power to order the forfeiture and subsequent disposition of property located outside the state, it may be presumed that it would exercise its power to enjoin the defendant’s conduct with respect to that property pending the outcome of the forfeiture action.”

Accordingly, the Court finds that the failure to grant In Personam relief herein in the form of a preliminary injunction against the transfer or encumbrance of title to the two Pennsylvania parcels, may result in the properties being rendered absolutely unavailable for forfeiture.

It is the finding of the Court that the need to preserve the properties purchased with the widow’s money far outweighs the hardship on any party against whom the injunction might operate. Irreparable damage to the widow will result if the assets are not preserved for forfeiture, pursuant to CPLR Article 13-A. The property will remain intact and available to defendants in the unlikely event that the claiming authority is unsuccessful. Therefore, if there is any hardship, it is minimal. Arson was not involved.

For all the foregoing reasons, the motion by the claiming authority, plaintiff District Attorney of Queens County, for a preliminary injunction is granted.

It is to be noted that such provisions as CPLR 6312(b) concerning the necessity of furnishing an undertaking have not been included in CPLR Article 13-A, since forfeiture actions will always be brought by the Attorney General or a District Attorney, or by a Corporation Counsel or County Attorney, acting with their consent, and, as public officers acting on behalf of the State, they are excluded by CPLR 2512 from any provision of Law authorizing or requiring an undertaking.

Using or selling drugs will not make anything good since it can lead a person to commit another crime. Here in Stephen Bilkis and Associates, we have Queens County Drug attorneys who will prosecute those who are in possession of drugs. For your other queries, you can also consult our Queens County Criminal lawyers.

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