Opinion 95 - 8


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

COUNTIES -- Powers and Duties (use of forfeiture moneys)

COUNTY TREASURER -- Powers and Duties (custody of forfeiture moneys)

DISTRICT ATTORNEY -- Powers and Duties (remittance of forfeiture moneys)

MUNICIPAL FUNDS -- Forfeiture Moneys (use of)

POLICE AND POLICE PROTECTION -- Police Department (remittance of forfeiture moneys)

CIVIL PRACTICE LAW AND RULES, §1349; COUNTY LAW, §§550, 700: Forfeiture moneys distributed to a claiming authority or claiming agent under section 1349(2)(e) and (f) of the Civil Practice Law and Rules (CPLR) must be remitted to the custody of the county treasurer. These moneys constitute dedicated general fund revenues for use only for purposes of the claiming authority or claiming agent. Distributions of forfeiture moneys under section 1349(2)(h)(i) and (ii) of the CPLR must be deposited, respectively, in a "law enforcement purposes" or "prosecution services" subaccount of the general fund, and used only for law enforcement purposes in the investigation of penal law offenses or for the prosecution of penal law offenses. Moneys distributed pursuant to section 1349(2)(h) may not be used for youth programs.

You have requested our opinion concerning certain provisions of section 1349 of Article 13-A of the Civil Practice Law and Rules (CPLR), as added by L 1990, ch 655, which provide for the disposition of property obtained from successful civil forfeiture actions.

Specifically, you ask whether moneys realized through forfeiture and paid pursuant to sections 1349(2)(e) and (f) are distributable to and held in the custody of the district attorney as the "claiming authority" and police department as the "claiming agent", or whether the funds are to be treated as a county general fund revenue. You also ask whether the moneys distributed pursuant to section 1349(2)(h)(i) and (ii) may be used for purposes not directly related to law enforcement investigation and prosecution, such as youth programs. Finally, you ask for clarification of the phrase " ... all costs and disbursements taxable under the provisions of this chapter", as used in section 1349(e).

Subdivision (1) of section 1349 requires that a judgment or order of forfeiture issued pursuant to Article 13-A include provisions for the disposal of the property found to have been forfeited. Subdivision (2) of section 1349 provides, in pertinent part, that when the judgment or order of forfeiture directs that the "claiming authority" sell the forfeited property, the proceeds of the sale and any other moneys realized as a consequence of any forfeiture pursuant to article 13-A be "apportioned and paid" in a descending order of priority as prescribed in paragraphs (a) through (h) of subdivision (2). Paragraphs (e) and (f) of subdivision 2 provide that the moneys be "apportioned and paid" as follows:

(e) In addition to amounts, if any, distributed pursuant to paragraph (d) of this subdivision, fifteen percent of all moneys realized through forfeiture to the claiming authority in satisfaction of actual costs and expenses incurred in the investigation, preparation and litigation of the forfeiture action, including that proportion of the salaries of the attorneys, clerical and investigative personnel devoted thereto, plus all costs and disbursements taxable under the provisions of this chapter;

(f) In addition to amounts, if any, distributed pursuant to paragraph (d) of this subdivision, five percent of all moneys realized through forfeiture to the claiming agent in satisfaction of actual costs incurred for protecting, maintaining and forfeiting the property including that proportion of the salaries of attorneys, clerical and investigative personnel devoted thereto; [emphasis added].

Paragraph (h) provides that:

(h) 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 subdivision 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 deposited to a prosecution services subaccount of the general fund of the state where the claiming authority is the attorney general or the political subdivision of which the claiming authority is a part, to be used for the prosecution of penal law offenses. [emphasis added].

For purposes of section 1349, a district attorney is a "claiming authority" and county police officers are "claiming agents" (CPLR, §1310[11], [12]; see also Criminal Procedure Law, §1.20[34][c]).

As a rule, the district attorney's office constitutes an administrative unit within the county (County Law, §351[1]; see also Kelly v McGee, 57 NY2d 522, 457 NYS2d 434) and is subject to the general fiscal and budgetary controls prescribed for such administrative units (see, e.g., 1979 Atty Gen [Inf Opns] 134, 149; see also Caputo v Halpin, 78 NY2d 117, 572 NYS2d 287). Although the County Law does not make specific reference to county police departments, we believe municipal police departments would similarly constitute administrative units within the municipality, subject to general fiscal and budgetary controls (see, e.g., Town Law, §§103[1], 150; Village Law, §§5-500 [1], 8-800).

Among these fiscal controls is County Law, §550(2) which provides that the county treasurer shall receive and be the custodian of all moneys "belonging to the county or in which the county has an interest". County Law, §700(2), which generally prescribes the fiscal powers and duties of the district attorney, similarly requires that moneys "belonging to the county" be paid by the district attorney to the county treasurer. Further, although County Law, §705 provides for the establishment of a prosecution fund for the district attorney's office, this fund consists of an appropriation within the county budget and is held in the custody of the county treasurer (County of Putnam v State, 17 Misc 2d 541, 186 NYS2d 944; 25 Opns St Comp, 1969, pps 9 and 212). Thus, absent express statutory direction to the contrary, all moneys of the county received by the district attorney must be remitted to the county treasurer as custodian.

Section 1349(2)(e) and (f) provide that forfeiture funds are paid "in satisfaction of" certain actual costs and expenses originally financed with county moneys. There is no indication that these funds are received for the personal benefit of the claiming authority or agent, or any third party. Consequently, we believe it is clear that these funds are received for the benefit of the county, and constitute moneys "in which the county has an interest" and moneys "belonging to the county" within the meaning of County Law, §§550 and 700. While the claiming authority or claiming agent is the initial recipient of the distribution, there is no indication in these provisions that the claiming authority or agent is to retain custody and directly expend these moneys. Accordingly, it is our opinion that the district attorney as claiming authority and the police department as claiming agent are required to remit all moneys received under CPLR, §1349(2)(e) and (f) to the custody of the county treasurer in accordance with County Law, §§550(2) and 700 as a general fund revenue(1).

The use of these moneys, however, is restricted. Section 1349(2)(e), as noted, provides that the distribution under that provision is "in satisfaction of actual costs and expenses incurred in the investigation, preparation and litigation of the forfeiture action". Similarly, section 1349(2)(f) provides that the distribution under that provision is "in satisfaction of actual costs incurred for protecting, maintaining and forfeiting the property ...". A primary purpose of these provisions, which superseded a prior statutory scheme, is to ensure that the claiming authority and claiming agent recover some of the costs and expenses incurred in connection with the forfeiture action, in order to provide an incentive to utilize the State forfeiture statute (see, e.g., Governor's Memorandum in Support of bill enacted as L 1990, ch 655, 1990 Legislative Annual, p 315; Memorandum of Attorney General to the Governor dated July 17, 1990 for L 1990, ch 655). In view of this purpose, we believe it is evident that these distributions are intended to be general fund revenues dedicated solely for the use of the claiming authority or claiming agent, which are to be appropriated for such purposes at the request of the claiming authority or claiming agent.

Therefore, it is our opinion, based on the language and legislative intent of the 1990 amendment, that the use of the moneys distributed under section 1349(2)(e) and (f) is intended to be restricted for the benefit of the claiming authority and claiming agent. We find no intent, however, to supersede the general statutory scheme that provides for custody of these county moneys with the county treasurer.

With respect to distributions pursuant to section 1349(2)(h)(i) and (ii), the statute expressly provides that these moneys must be deposited, respectively, to a "law enforcement purposes" and a "prosecution services" subaccount of the general fund. Thus, these funds clearly are not held by the claiming authority or claiming agent, but rather are held in the custody of the county treasurer as a general fund revenue. The statute expressly provides that these moneys are to be used for law enforcement purposes in the investigation of penal law offenses (CPLR, §1349[2][h][i]) or for the prosecution of penal law offenses (CPLR, §1349[2][h][ii]). Youth programs and similar expenditures, although they may be indirectly and generally associated with law enforcement, do not, in our opinion, relate to the investigation or prosecution of penal law offenses. Therefore, it is our opinion that section 1349(2)(h) moneys may not be used for those purposes.

Finally, it appears that the phrase "costs and disbursements taxable under this chapter", as used in CPLR, §1349(e), refers to the costs and disbursements allowable under various provisions of the CPLR (e.g. articles 81, 82, 83) in connection with the forfeiture action.

April 18, 1995
Joseph R. Caputo, County Comptroller
County of Suffolk

1. In reaching this conclusion, we recognize that proposed legislation, which would amend County Law, §700 and CPLR, §1349 to provide expressly that moneys realized as a consequence of any forfeiture must be deposited in an "asset forfeiture fund" in the custody of the chief fiscal officer, was passed by the Assembly in 1994 (see Assembly Bill No. 8338) and reintroduced in the Assembly in 1995 (see Assembly Bill No. 1582). We also note, however, that it is well established that "the failure of the Legislature to pass an amendment is at best a dubious foundation for drawing inferences of legislative intent" (General Building Contractors of New York State, Inc. v Roberts, 118 AD2d 173 at 176, 504 NYS2d 292 at 294, lv denied 68 NY2d 612, 510 NYS2d 1026; see also Clark v Cuomo, 66 NY2d 185, 495 NYS2d 936; Hospital Association of New York State v Axelrod, 113 AD2d 9, 494 NYS2d 905, appeal discontinued and withdrawn 68 NY2d 754, 506 NYS2d 1041). Therefore, we do not believe that these bills have significant probative value, and certainly are not dispositive of the current state of the law.