Prosecutors may try to seize a criminal defendant’s property if that property was acquired as part of the alleged criminal act. For example, a prosecutor might seek forfeiture of cash that was paid to a defendant in exchange for illegal drugs or other contraband.

Criminal defendants have property rights, and prosecutors are required to meet very exacting criteria in order to justify the seizure of property. If prosecutors take short cuts around the law, they must be held accountable. If you are facing criminal charges in New York and a demand for seizure and forfeiture of your property has been made, protect your rights by calling a New York City civil rights lawyer at Friedman, Levy, Goldfarb & Green, P.C.

What Kinds of Property Can a Prosecutor Seize?

Under New York law, a prosecutor can attempt to seize the “instrumentalities” and “proceeds” of a crime. This includes anything that a defendant used during the commission of a crime, such as firearms and vehicles, and the benefits that a defendant derived from a crime, such as cash and other personal assets. New York law imposes a high bar against a prosecutor’s attempts to seize a defendant’s home or other real property, but that bar will not prevent an attempt to seize a defendant’s home and other real property, for example, that was used in the processing, storage, and distribution of illegal drugs.   

What Does a Prosecutor Have to Prove to Justify Property Seizure?

Article 480 of the New York State Penal Laws prevents prosecutors from seizing a defendant’s property unless:

  • The defendant has been convicted of a felony offense; and
  • The prosecutor has proved beyond a reasonable doubt that the property was used during the commission of a felony crime or that it is part of the proceeds of a crime.

Federal laws impose a lower standard of proof than New York State laws. Specifically, a prosecutor in a federal criminal case only needs to prove by a preponderance of the evidence that property was an instrumentality or the proceeds of a crime to justify the seizure of that property from a convicted felon.

What is the Difference Between Civil and Criminal Property Forfeiture?

With criminal forfeiture, a prosecutor will likely seek seizure and forfeiture of property from a defendant as part of the defendant’s sentence in connection with a conviction. Civil forfeiture, however, is used by law enforcement authorities to grab and hold cash and other property even before any charges are filed or convictions are made. Civil rights advocates have long argued that civil asset forfeiture imposes a discriminatory burden on lower-income defendants and other persons whose property has been seized solely because a law officer suspected that the property is connected to a crime. An officer might seize cash, for example, based on a suspicion that the person who had that cash received it in exchange for drugs. Authorities can then argue for full forfeiture of that cash without charging that person with any crimes.

Minorities and persons in other protected classes who have been targets of these types of civil asset forfeitures should consult with a knowledgeable and experienced civil rights lawyer to determine if they have a valid cause of action for a civil rights lawsuit against the law enforcement agency that seized their property.

How Can Someone Who Is Convicted of a Crime Defend Against Property Seizure?

New York State law establishes certain procedures that a prosecutor must follow to request seizure and forfeiture of property. Your criminal defense attorney should always verify that the prosecutor has followed those procedures. They should also analyze and challenge the prosecutor’s claim that the seized property was used in or was the product of a crime. In all cases where the defendant is found not guilty of a felony or is only convicted of a misdemeanor, his or her lawyer should seek full recovery of any property that was seized by law enforcement as part of the prosecution of any criminal charges.

Protect Your Civil Rights if Your Property Has Been Seized

Law enforcement authorities have virtually unlimited resources to prosecute crimes and to seize the property of criminal defendants in ways that make it difficult or impossible for those defendants to defend the charges brought against them. If you are facing criminal charges and your cash and property has been seized and your bank accounts have been frozen, contact the Manhattan law firm of Friedman, Levy, Goldfarb & Green, P.C. to consult with an NYC civil rights lawyer about whether your rights have been violated.

Our attorneys represent individuals throughout the NYC metropolitan area whose civil rights have been ignored or flouted by prosecutors and the police. Please see the contact form on our website or call us to protect your rights and take steps to recover property that was improperly seized from you.