400.30 – Procedure for Determining the Amount of a Fine Based Upon the Defendant’s Gain From the Offense.

§  400.30  Procedure for determining the amount of a fine based upon the
           defendant's gain from the offense.
1.  Order directing a hearing.  In any case where the court is of  the
  opinion  that the sentence should consist of or include a fine and that,
  pursuant to article eighty of the penal law,  the  amount  of  the  fine
  should  be  based  upon  the defendant's gain from the commission of the
  offense, the court may order a hearing to determine the amount  of  such
  gain.    The  order  must  be filed with the clerk of the court and must
  specify a date for the hearing not less than ten days after  the  filing
  of the order.
2.    Notice of hearing.   Upon receipt of the order, the clerk of the
  court must send a notice of the hearing to the  defendant,  his  counsel
  and  the district attorney.  Such notice must specify the time and place
  of the hearing and the fact that the purpose thereof is to determine the
  amount of the defendant's gain from the commission  of  the  offense  so
  that an appropriate fine can be imposed.
3.    Hearing.    When the defendant appears for the hearing the court
  must ask him whether he wishes to make any statement with respect to the
  amount of his gain from the commission of the offense.  If the defendant
  does make a statement, the court may accept such statement and base  its
  finding  thereon.    Where  the  defendant does not make a statement, or
  where the court does  not  accept  the  defendant's  statement,  it  may
  proceed with the hearing.
4.    Burden  and  standard  of proof; evidence.   At any hearing held
  pursuant to this section the burden of proof rests upon the people.    A
  finding  as to the amount of the defendant's gain from the commission of
  the offense must be based upon a preponderance of  the  evidence.    Any
  relevant evidence, not legally privileged, may be received regardless of
  its admissibility under the exclusionary rules of evidence.
5.    Termination  of  hearing.   At any time during the pendency of a
  hearing pursuant to this section  the  court  may,  in  its  discretion,
  terminate the hearing without making any finding.