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