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UNITED STATES v. ALL RIGHT

July 27, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
ALL RIGHT, TITLE AND INTEREST IN REAL PROPERTY AND APPURTENANCES THERETO KNOWN AS 163 RENWICK STREET, NEWBURGH, NEW YORK, LISTED AS SECTION 45, BLOCK 11, LOT 2, Defendants-in-rem.



The opinion of the court was delivered by: CHARLES L. BRIEANT

 Brieant, J.

 This civil forfeiture action presents issues concerning the circumstances under which real property allegedly used for illegal distribution and sale of a controlled substance may be forfeited to the United States. Plaintiff United States (the "Government") is seeking civil forfeiture of all right, title and interest in the real property and buildings located at 163 Renwick Street, Newburgh, New York (the "Property"), under 21 USC 881(a)(7).

 Two individuals claim ownership of the property: Olvido Barbot ("Olvido"), who answered the complaint and has submitted papers in opposition to the motion, and her husband Jose Barbot ("Jose"), who served a claim to the property but has otherwise not responded.

 The Government moves now for summary judgment under Fed.R.Civ.P. 56 against Jose Barbot only.

 The application of the Government for forfeiture of all of Jose's right, title and interest in the Property to the United States is granted and this Court adjudges that Jose Barbot is barred from any right of ownership or any right to enter onto the Property. *fn1"

 In August 1984 Olvido and Jose were arrested in connection with the sale of cocaine at the Property. Jose was convicted; the charges against Olvido were dismissed. Olvido moved to Brooklyn and rented out the Newburgh property while her husband was in prison; they moved back to the Property in 1991 after Jose was released. Olvido obtained work outside the home and Jose, in addition to other employment, sold furniture and other articles using the garage on the Property as a place of business.

 On two occasions, in April and May of 1992, a confidential informant monitored by the Newburgh Police Department purchased cocaine from Jose at the Property. The police observed Jose leave the garage, enter the residence, and then return to the garage prior to selling the cocaine to the informant.

 A City of Newburgh Police Report states that on May 14, 1992, the Newburgh Police Department searched the property pursuant to a warrant and seized, among other things, two brown paper bags containing 46 clear plastic bags of cocaine which Jose was observed throwing into an adjacent yard. The search also uncovered a paper bag containing numerous small clear plastic bags from the rear yard of the property, a gram-weight scale with cocaine residue, and a clear plastic bag containing cocaine residue from the master bedroom of the property. Jose was arrested, pleaded guilty to criminal possession of a controlled substance in the fifth degree and was sentenced to a term of three-six years imprisonment, which he is still serving. This evidence is uncontroverted.

 Shortly after his arrest, Jose signed a deed, dated August 21, 1994, which created a tenancy by the entirety to the property in favor of himself and Olvido. *fn2" Thus Olvido acquired her interest after Jose's illegal acts took place but before his plea of guilty was entered.

 Civil forfeiture of real property is authorized by 21 USC 881(a)(7). Section 881(a)(7) provides in part:

 
(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:
 
(7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances of improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any ...

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