| People v Carmichael |
| 2014 NY Slip Op 09012 [123 AD3d 1053] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v David D. Carmichael, Appellant. |
Bruce A. Petito, Poughkeepsie, N.Y., for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered September 19, 2013, convicting him of criminal possession of aforged instrument in the second degree, upon his plea of guilty, and sentencing him as asecond felony offender to an indeterminate term of three to six years imprisonment, and aforfeiture of his mobile telephone and $900 cash.
Ordered that the judgment is modified, on the law, by vacating the portion of thesentence which imposed the forfeiture of the defendant's mobile telephone and $900cash; as so modified, the judgment is affirmed, and the matter is remitted to the CountyCourt, Dutchess County, for further proceedings consistent herewith.
In appropriate circumstances, the voluntary settlement of a potential civil forfeitureaction pursuant to CPLR article 13-A (see CPLR 1311) may be made a lawfulcondition of a negotiated plea (see CPL 220.50 [6]), and an order of forfeiturepursuant to a valid settlement of a civil forfeiture claim may be included as part of thejudgment of conviction (see Penal Law § 60.30). Civil forfeiture,however, is not an authorized component of a criminal sentence.
Here, the plea minutes do not reflect that the defendant voluntarily agreed to the civilforfeiture of his mobile telephone and $900 cash as a condition of the plea (see People v McCoy, 96 AD3d1674 [2012]). Then, when the defendant refused to sign the forfeiture documents atthe time of sentencing, the County Court improperly imposed civil forfeiture as a portionof the criminal sentence. Accordingly, under the particular circumstances of this case, asthe defendant correctly contends, the portion of the sentence which imposed the civilforfeiture of the defendant's mobile telephone and $900 cash must be vacated (see People v Smith, 100 AD3d936 [2012]). As the People correctly assert, a plenary CPLR article 13-A civilforfeiture action remains available, at the discretion of the Dutchess County DistrictAttorney, as the claiming authority, for five years after the commission of the crime(see CPLR 1310 [11]; 1311 [1]). However, presently, in the absence of a civiljudgment in such an action, the defendant's property must be restored to him.
The sentence of imprisonment imposed was not excessive (see People vSuitte, 90 AD2d 80 [1982]). Dillon, J.P., Dickerson, Cohen and Duffy, JJ.,concur.