| People v McCoy |
| 2012 NY Slip Op 05278 [96 AD3d 1674] |
| June 29, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v IsaiahMcCoy, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), renderedMarch 17, 2010. The judgment convicted defendant, upon his plea of guilty, of criminal sale of acontrolled substance in the third degree and criminal possession of a controlled substance in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by vacating the forfeiture of $5,000 and as modified thejudgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon his guilty plea of criminalsale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and criminalpossession of a controlled substance in the third degree (§ 220.16 [1]), defendant contendsthat County Court erred in allowing the People to condition their plea offer upon his ability toprovide $5,000 in forfeiture funds for the City of Geneva Police Department. We agree, and wetherefore modify the judgment accordingly.
Defendant was arrested after he sold cocaine to a police informant for $80. The sale wasobserved by an undercover officer who provided the informant with the buy money, and thepolice pulled over defendant's vehicle as he was driving away from the apartment where the saleoccurred. Before pulling over his vehicle, defendant threw cocaine out the window. The policerecovered that cocaine and charged defendant with both the sale and possession of a controlledsubstance.
Prior to defendant's entry of a plea to counts one and two of the indictment in satisfaction ofthe remaining counts, the prosecutor stated the terms of the plea offer on the record. With respectto sentencing, the prosecutor stated that, if defendant "could come up with $5,000 in cash that hewould forfeit," he would be sentenced as a second felony offender to concurrent terms of fiveyears in prison and three years of postrelease supervision. The prosecutor further stated, "If hedoes not come up with the $5,000 cash," or if he failed to appear for sentencing or wasre-arrested, "then all bets would be off and [the court] might be inclined to give him 10 years inprison." Defendant was also asked to forfeit the vehicle he was driving when he was arrested.[*2]The court then asked defendant whether he wished to acceptthe plea offer, and defendant responded in the affirmative. Before accepting the plea, the courtnoted that defendant's aunt had posted $5,000 in cash for defendant's bail, and inquired whetherthat "might be the source of the funds" to be forfeited. "That's possible," defense counselanswered, "and if it is, I'll prepare the necessary paperwork to have that happen." Defendantproceeded to plead guilty.
At sentencing, the bailor signed over the bail money to the Geneva Police Department, anddefendant executed a waiver and assignment form (waiver form). In the waiver form, defendantacknowledged that he may become liable for the forfeiture of $5,000 and his vehicle due to his"action," and stated that, to avoid a lawsuit filed against him pursuant to CPLR article 13, heagreed to forfeit $5,000 and his vehicle to the Geneva Police Department. Defendant also agreedin the waiver form to waive his right to challenge the forfeiture on appeal or in a collateralproceeding.
Before imposing the agreed-upon sentence, the court expressed its appreciation to defendantfor making amends for his crime "by making restitution, the waivers, so forth." The court wasapparently referring to the forfeiture, inasmuch as the People did not request restitution anddefendant did not agree to pay it. According to the presentence report, the only request forrestitution came from the arresting officer, who sought the return of the $80 obtained bydefendant from the informant in the controlled drug transaction. Nevertheless, the certificate ofconviction states that defendant was ordered to pay restitution of $5,000. On appeal, defendantasks us to vacate the forfeiture of funds. He does not challenge the forfeiture of his vehicle.
As a preliminary matter, we note that no order or judgment of forfeiture was issued by thecourt. In addition, there is no indication in the record that the People filed the waiver form withthe clerk of the court along with "an affidavit from the claiming authority that written notice ofthe stipulation or settlement agreement, including the terms of such," was given to the office ofvictim services, the state division of criminal justice services and the state division of substanceabuse services, as required by CPLR 1311 (11) (a). It thus does not appear that the Peoplecomplied with the civil forfeiture procedures set forth in CPLR article 13-A, nor did the Peoplecomply with the criminal forfeiture procedures set forth in Penal Law article 480.
Apart from the procedural irregularities, however, is the absence of any apparent nexusbetween defendant's crimes and the forfeited funds. Pursuant to CPLR article 13-A, a districtattorney or attorney general, as "the appropriate claiming authorit[ies]," may recover from acriminal defendant money or property that constitutes the proceeds, substituted proceeds, or aninstrumentality of a crime or the real property instrumentality of a crime (CPLR 1311 [1]; seeKuriansky v Bed-Stuy Health Care Corp., 135 AD2d 160, 164 [1988], affd 73 NY2d875 [1988]; Hynes v Iadarola, 221 AD2d 131, 133-134 [1996]; see also PenalLaw § 480.05 [1]). Under CPLR 1311 (1) (a), the proceeds of "criminal activity arisingfrom a common scheme or plan of which [the defendant's criminal] conviction is a part" are alsosubject to forfeiture (CPLR 1311 [1] [a]). "CPLR article 13-A is based on the 'fundamentalequitable principle' . . . that '[n]o one shall be permitted to profit by [that person's]own fraud, or to take advantage of [that person's] own wrong, or to found any claim upon [thatperson's] own iniquity, or to acquire property by [that person's] own crime' " (Hynes, 221AD2d at 133-134).
Here, the forfeited funds were not the proceeds of the crimes with which defendant wascharged, nor is there any indication that the funds were derived from uncharged criminal activityin which defendant engaged. Defendant did not possess the funds when he was arrested and, infact, it appears from the record that the forfeited funds did not belong to him but to the personwho posted bail on his behalf. Notably, the People do not contend otherwise. Rather, they relysolely on the waiver form, contending that defendant thereby waived his right to appeal with[*3]respect to the forfeiture. We reject that contention. In ourview, it cannot be said that defendant voluntarily signed the waiver form given that the People,with the court's imprimatur, essentially threatened to double his sentence if he failed to do so. Wethus conclude that the waiver of the right to challenge the forfeiture on appeal is invalid (see generally People v Lopez, 6 NY3d248, 256 [2006]).
With respect to the merits, we conclude under the circumstances of this case that theforfeiture should be vacated and the funds returned to the bailor. The conditioning of defendant'ssentence upon his ability to procure funds for forfeiture creates an unacceptable appearance ofimpropriety, i.e., that funds were extorted from defendant or the person who posted his bail bythreatening defendant with a more severe sentence. It may also appear that defendant wasallowed to "buy" a more lenient sentence by donating money to the local police department.
We recognize that forfeiture may be a lawful component of a negotiated plea agreementunder certain circumstances not present here (see People v Abruzzese, 30 AD3d 219 [2006], lv denied 7NY3d 784 [2006]; People v Sczepankowski, 293 AD2d 212 [2002], lv denied 99NY2d 564 [2002]). In Abruzzese and Sczepankowski, however, the moneyforfeited was seized from the defendants when they were arrested. Here, as noted, the forfeitedfunds have no apparent relation to defendant's crimes, which in turn gives rise to theaforementioned appearance of impropriety. We therefore vacate the forfeiture, without prejudiceto the People's commencement of an action for forfeiture pursuant to CPLR article 13-A withinthe applicable statute of limitations (see CPLR 1311 [1]).
Finally, we reject defendant's remaining contention that the sentence is unduly harsh orsevere. Present—Scudder, P.J., Smith, Carni, Lindley and Martoche, JJ.