Assembly Bill A267

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   267

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by M. of A. PERALTA, WEISENBERG, BOYLAND, CHRISTENSEN, BENE-
  DETTO, FIELDS, ESPAILLAT, PHEFFER -- Multi-Sponsored by --  M.  of  A.
  ALFANO, BARRA, CARROZZA, CONTE, COOK, DelMONTE, DIAZ, ERRIGO, FARRELL,
  FINCH,  GALEF,  WALKER  --  read once and referred to the Committee on
  Codes

AN ACT to amend the civil practice law and rules, in relation to  dispo-
  sition of forfeiture moneys where the person against whom a forfeiture
  action is commenced is a "criminal street gang member" or "street gang
  associate"

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 1310 of the civil practice law and rules is amended
by adding four new subdivisions 15, 16, 17 and 18 to read as follows:
  15. "CRIMINAL STREET GANG" MEANS ANY ONGOING ORGANIZATION, ASSOCIATION
OR GROUP OF THREE OR MORE PERSONS, WHETHER FORMAL OR INFORMAL, HAVING AS
ONE OF ITS PRIMARY ACTIVITIES THE COMMISSION OF  ONE  OR  MORE  CRIMINAL
ACTS,  WHICH HAS AN IDENTIFIABLE NAME OR IDENTIFYING SIGN OR SYMBOL, AND
WHOSE MEMBERS INDIVIDUALLY OR COLLECTIVELY ENGAGE IN OR HAVE ENGAGED  IN
CRIMINAL STREET GANG ACTIVITY.
  16.  "CRIMINAL  STREET GANG MEMBER" MEANS A PERSON TO WHOM TWO OR MORE
OF THE FOLLOWING CRITERIA APPLY:
  (A) ADMITS TO CRIMINAL STREET GANG MEMBERSHIP;
  (B) IS IDENTIFIED AS A CRIMINAL STREET GANG  MEMBER  BY  A  DOCUMENTED
RELIABLE INFORMANT;
  (C)  RESIDES  IN OR FREQUENTS A PARTICULAR CRIMINAL STREET GANG'S AREA
AND ADOPTS ITS STYLE OF DRESS, ITS USE OF HAND SIGNALS  OR  ITS  TATTOOS
AND ASSOCIATES WITH KNOWN CRIMINAL STREET GANG MEMBERS;
  (D)  HAS BEEN ARRESTED MORE THAN ONCE IN THE COMPANY OF KNOWN CRIMINAL
STREET GANG MEMBERS FOR OFFENSES WHICH ARE CONSISTENT WITH USUAL  CRIMI-
NAL STREET GANG ACTIVITY;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD00070-01-9

A. 267                              2

  (E)  IS  IDENTIFIED  AS  A  CRIMINAL  STREET  GANG  MEMBER BY PHYSICAL
EVIDENCE, SUCH AS PHOTOGRAPHS OR OTHER DOCUMENTATION;
  (F)  HAS  BEEN  STOPPED  IN  THE COMPANY OF KNOWN CRIMINAL STREET GANG
MEMBERS FOUR OR MORE TIMES;
  (G) HAS BEEN IDENTIFIED AS A CRIMINAL STREET GANG MEMBER BY OTHER  LAW
ENFORCEMENT AGENCIES; OR
  (H) IS IDENTIFIED AS A CRIMINAL STREET GANG MEMBER BY A FAMILY MEMBER.
  17. "STREET GANG ASSOCIATE" MEANS A PERSON WHO:
  (A) ADMITS TO STREET GANG ASSOCIATION; OR
  (B)  MEETS  ANY  SINGLE  DEFINING CRITERION FOR STREET GANG MEMBERSHIP
DESCRIBED IN SUBDIVISION SIXTEEN OF THIS SECTION.
  18. "CRIMINAL STREET GANG ACTIVITY" MEANS THE COMMISSION OR  ATTEMPTED
COMMISSION  OF,  OR  SOLICITATION  OR  CONSPIRACY TO COMMIT, TWO OR MORE
FELONY ACTS THAT:
  (A) WERE COMMITTED ON SEPARATE OCCASIONS WITHIN A FIVE YEAR PERIOD;
  (B) ARE  NEITHER  ISOLATED  INCIDENTS,  NOR  SO  CLOSELY  RELATED  AND
CONNECTED  IN  POINT OF TIME OR CIRCUMSTANCE OF COMMISSION AS TO CONSTI-
TUTE A CRIMINAL OFFENSE OR  CRIMINAL  TRANSACTION,  AS  SUCH  TERMS  ARE
DEFINED IN SECTION 40.10 OF THE CRIMINAL PROCEDURE LAW; AND
  (C)  FURTHER  A  CRIMINAL  STREET  GANG BY:   (I) BEING RELATED TO ONE
ANOTHER THROUGH A COMMON SCHEME OR PLAN; OR (II) WERE COMMITTED,  SOLIC-
ITED,  REQUESTED,  IMPORTUNED  OR  INTENTIONALLY AIDED BY PERSONS ACTING
WITH THE MENTAL CULPABILITY REQUIRED FOR THE COMMISSION OF  SUCH  FELONY
ACTS AND SUCH PERSON IS A MEMBER OF SUCH CRIMINAL STREET GANG.
  S 2. Paragraph (h) of subdivision 2 of section 1349 of the civil prac-
tice  law  and  rules,  as  added by chapter 655 of the laws of 1990, is
amended to read as follows:
  (h) [All] EXCEPT WITH RESPECT TO A CIRCUMSTANCE TO WHICH PARAGRAPH (I)
OF THIS SUBDIVISION APPLIES, ALL moneys  remaining  after  distributions
pursuant  to  paragraphs  (a)  through  (g) of this subdivision shall be
distributed as follows:
  (i) seventy-five percent of such moneys shall be deposited  to  a  law
enforcement  purposes  subaccount of the general fund of the state where
the claiming agent is an agency of the state or the  political  subdivi-
sion  or  public  authority of which the claiming agent is a part, to be
used for law enforcement use in the investigation of penal law offenses;
  (ii) the remaining twenty-five percent of such moneys shall be  depos-
ited  to  a  prosecution  services subaccount of the general fund of the
state where the claiming authority is the attorney general or the  poli-
tical  subdivision of which the claiming authority is a part, to be used
for the prosecution of penal law offenses.
  Where multiple claiming agents participated in the forfeiture  action,
funds  available pursuant to subparagraph (i) of this paragraph shall be
disbursed to the appropriate law  enforcement  purposes  subaccounts  in
accordance  with the terms of a written agreement reflecting the partic-
ipation of each claiming agent entered into by the participating  claim-
ing agents.
  S 3. Subdivision 2 of section 1349 of the civil practice law and rules
is amended by adding a new paragraph (i) to read as follows:
  (I)  IF THE DEFENDANT AGAINST WHOM A FORFEITURE ACTION IS COMMENCED IS
IDENTIFIED AS, OR IS DECLARED OR ADJUDGED BY THE COURT TO BE, A CRIMINAL
STREET GANG MEMBER OR A STREET  GANG  ASSOCIATE,  ALL  MONEYS  REMAINING
AFTER  DISTRIBUTIONS  PURSUANT  TO  PARAGRAPHS  (A)  THROUGH (G) OF THIS
SUBDIVISION SHALL BE DISTRIBUTED AS FOLLOWS:
  (1) SEVENTY-FIVE PERCENT OF SUCH MONEYS SHALL BE DEPOSITED TO A  SEPA-
RATE  ACCOUNT  OF  THE  SCHOOL  DISTRICT WHEREIN SUCH DEFENDANT RESIDES,

A. 267                              3

WHICH THE SUPERINTENDENT  OF  SUCH  DISTRICT  SHALL  ESTABLISH  FOR  THE
RECEIPT  OF  ALL  SUCH  MONEYS, AND SAID MONEYS SHALL BE UTILIZED BY THE
SUPERINTENDENT  EXCLUSIVELY  TO  DEVELOP,  IMPLEMENT   AND/OR   MAINTAIN
INSTRUCTIONAL  PROGRAMS DESIGNED TO DETER OR PREVENT YOUTHS FROM ASSOCI-
ATING WITH OR BECOMING MEMBERS OF CRIMINAL STREET GANGS,  INCLUDING  BUT
NOT LIMITED TO, (A) AFTER-SCHOOL SPORTS OR RECREATIONAL PROGRAMS, AND/OR
(B) AFTER-SCHOOL SCHOLASTIC OR ACADEMIC PROGRAMS;
  (2)  FIFTEEN  PERCENT  OF  SUCH  MONEYS  SHALL  BE  DEPOSITED TO A LAW
ENFORCEMENT PURPOSES SUBACCOUNT OF THE GENERAL FUND OF THE  STATE  WHERE
THE  CLAIMING  AGENT IS AN AGENCY OF THE STATE OR THE POLITICAL SUBDIVI-
SION OR PUBLIC AUTHORITY OF WHICH THE CLAIMING AGENT IS A  PART,  TO  BE
USED FOR LAW ENFORCEMENT USE IN THE INVESTIGATION OF PENAL LAW OFFENSES;
AND
  (3)  THE  REMAINING TEN PERCENT OF SUCH MONEYS SHALL BE DEPOSITED TO A
PROSECUTION SERVICES SUBACCOUNT OF THE GENERAL FUND OF THE  STATE  WHERE
THE CLAIMING AUTHORITY IS THE ATTORNEY GENERAL OR THE POLITICAL SUBDIVI-
SION OF WHICH THE CLAIMING AUTHORITY IS A PART, TO BE USED FOR THE PROS-
ECUTION OF PENAL LAW OFFENSES.
  WHERE  MULTIPLE CLAIMING AGENTS PARTICIPATED IN THE FORFEITURE ACTION,
FUNDS AVAILABLE PURSUANT TO SUBPARAGRAPH TWO OF THIS PARAGRAPH SHALL  BE
DISBURSED  TO  THE  APPROPRIATE  LAW ENFORCEMENT PURPOSES SUBACCOUNTS IN
ACCORDANCE WITH THE TERMS OF A WRITTEN AGREEMENT REFLECTING THE  PARTIC-
IPATION  OF EACH CLAIMING AGENT ENTERED INTO BY THE PARTICIPATING CLAIM-
ING AGENTS.
  S 4. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.