2006 New York Code - Forfeiture Action With Respect To Alcoholic Beverages And Vehicles Carrying Such Beverages.

 
    * §  1845.  Forfeiture  action with respect to alcoholic beverages and
  vehicles carrying such beverages.  (a)  Temporary  seizure.  Whenever  a
  police  officer designated in section 1.20 of the criminal procedure law
  or a peace officer designated in subdivision four  of  section  2.10  of
  such  law,  acting  pursuant  to his special duties, shall discover more
  than ninety liters of liquors which are being imported for sale  or  use
  in  the  state, where the person importing or causing such liquors to be
  imported is not registered as a distributor under section  four  hundred
  twenty-one  of  this  chapter,  such  police officer or peace officer is
  hereby authorized to seize and take possession of such liquors,  and  to
  seize   and   take   possession   of  the  vehicle  or  other  means  of
  transportation used to transport such liquors.
    (b) Retention of property. The department shall hold and  safely  keep
  such  liquors,  vehicle or other means of transportation seized pursuant
  to subdivision (a) of this section. Seized liquors may be  deposited  to
  the  credit  of the department at a storage facility within the state or
  may be sold by the department.
    (c) Confirmation of temporary seizure. Within five business days after
  the  temporary  seizure  of  liquors,  vehicle   or   other   means   of
  transportation   pursuant  to  subdivision  (a)  of  this  section,  the
  department shall move in supreme court in the county where the temporary
  seizure occurred, on such notice as the court shall direct to the owners
  of the property, to confirm the temporary  seizure.  If  the  department
  fails  to  make  such  motion  within  the  required period, such seized
  property shall  be  restored  to  the  owners  thereof  as  provided  in
  subdivision (e) of this section. On a motion for an order confirming the
  seizure,  the department shall show, by affidavit and such other written
  evidence as may be submitted, that  there  is  a  cause  of  action  for
  forfeiture  under  subdivision  (d)  of  this section and that there are
  grounds for confirmation of the seizure. The department  shall  include,
  in  its  motion  papers,  an inventory of all seized property. The court
  shall grant an application for an order confirming the seizure  when  it
  determines  that  there is a substantial probability that the department
  will prevail on the issue of forfeiture.
    (d) Forfeiture action. (1) A  forfeiture  action  shall  be  commenced
  within  forty-five  days from the date of the seizure. Such action shall
  be commenced and service shall be made in accordance  with  the  methods
  authorized  by  the  civil  practice  law  and  rules  or  the  business
  corporation law. Upon such terms as may be  just  and  upon  good  cause
  shown,  the court may extend the time, not exceeding thirty days, within
  which the summons must be served,  provided  that  the  application  for
  extentions  made  before  the  expiration  of  the  time  fixed.  If the
  department fails to commence the forfeiture action within  the  required
  period,  such seized property shall be restored to the owners thereof as
  provided in subdivision (e) of this section.
    (2) A forfeiture action under this subdivision shall be  commenced  in
  supreme court. The proper venue for trial of an action for forfeiture is
  the  county in which the temporary seizure authorized by subdivision (a)
  of this section occurred.
    (3) Forfeiture of liquors together with the vehicle or other means  of
  transportation  used  to  transport such liquors shall be adjudged where
  the department proves, by clear and convincing evidence, that the person
  importing or causing such liquors to be imported was not registered as a
  distributor under section four hundred twenty-one of this  chapter.  All
  defendants in a forfeiture action brought pursuant to this article shall
  have the right to trial by jury on any issue of fact.
    (4) The court in which a forfeiture action is pending may dismiss said
  action  in  the interests of justice upon an application as provided for
  herein.
    (A)  At  any  time  during  the  pendency  of a forfeiture action, the
  department or  a  defendant  may  apply  for  an  order  dismissing  the
  complaint  and  terminating  the  forfeiture  action  in the interest of
  justice.
    (B) Such application for relief provided in  subparagraph  (a)  hereof
  must  be  made  in writing and upon notice to all parties. The court, in
  its discretion, may direct that notice be  given  to  any  other  person
  having an interest in the property.
    (C)  An  application  for  the relief provided for in subparagraph (A)
  hereof must be brought exclusively in the supreme court in the county in
  which the forfeiture action is pending.
    (D) The court may grant the relief provided in subparagraph (A) hereof
  if it finds that such relief is  warranted  by  the  existence  of  some
  compelling  factor,  consideration  or  circumstance  demonstrating that
  forfeiture of the property or any part thereof, would not serve the ends
  of justice. Reporting and payment of the tax imposed by or  pursuant  to
  article eighteen of this chapter with respect to such liquors subsequent
  to the seizure of such liquors shall not constitute a compelling factor,
  consideration  or  circumstance  warranting  the  granting of the relief
  provided for in subparagraph  (A)  of  this  paragraph.  In  determining
  whether  such  relief  is  warranted by the existence of some compelling
  factor, consideration or circumstances pursuant to this  paragraph,  the
  court  may,  however,  take  into  account the fact that such taxes with
  respect to the seized liquors have been reported  and  remitted  to  the
  state   prior   to  the  temporary  seizure  of  such  liquors  if  such
  unregistered importation into the state was effected in good  faith  and
  without  knowledge of the requirement of registration and without intent
  to evade tax. The court must issue a written decision, stating the basis
  for an order issued pursuant to this paragraph.
    (5) An action under  this  subdivision  shall  be  stayed  during  the
  pendency  of  a  criminal  action which is related to it; provided, that
  upon motion of a defendant in the forfeiture action or the department, a
  court may, in the interest of justice and for good cause, and  with  the
  consent of all parties, order that the forfeiture action proceed despite
  the  pending  criminal  action;  and  provided  that such stay shall not
  prevent the granting or continuance of an order confirming  the  seizure
  provided under this section.
    (6)  The total that may be recovered shall not exceed the value of the
  liquors seized and, in addition, either the  value  of  the  vehicle  or
  other  means  of  transportation used to transport such liquors or three
  times the amount of the tax, interest and penalty under article eighteen
  of this chapter with respect to the liquors, whichever is less.
    (e) Return of property. If  (1)  the  department  fails  to  move  for
  confirmation  of the seizure pursuant to subdivision (c) of this section
  or (2) a court denies an application for an order confirming the seizure
  or (3) judgment is entered against  the  department  in  the  forfeiture
  action  and that judgment is affirmed after all appeals are exhausted or
  the time within which to appeal has expired, then the  department  shall
  restore  such seized liquors, or liquors of a like quantity and type, or
  such seized vehicle or other  means  of  transportation  to  the  owners
  thereof.  Alternatively,  if  such  seized  liquors  have  been  sold as
  provided in subdivision (b) of this section, the department shall pay to
  the owners of such liquors the proceeds of such sale or, if greater,  an
  amount of money representing the fair market value of the liquors at the
  time of the seizure.
    (f)  Release  of property. A person whose property has been seized may
  move, upon notice to the commissioner,  in  the  supreme  court  in  the
  county  in  which the temporary seizure occurred, for an order releasing
  all or part of the property seized  upon  payment  of  the  department's
  reasonable  fees  and  expenses, if any. On such a motion, the defendant
  shall give an undertaking in accordance with article twenty-five of  the
  civil  practice  law  and  rules, in an amount equal to the value of the
  property sought to be released, that defendant will pay  the  department
  the  value  of such property which may be adjudged forfeited (but in the
  case of the owner of a vehicle or other  means  of  transportation,  the
  amount  of  the  undertaking  required  shall not exceed three times the
  amount of all taxes, interest and penalties due under  article  eighteen
  of this chapter).
    (g)   Disposal   of   property.   The  department,  after  a  judicial
  determination of forfeiture, shall, in  its  discretion,  either  retain
  such  seized  property  for  its  official  use  or  sell such forfeited
  property at public sale. The net proceeds of any such sale,  or  of  any
  sale  of  seized liquors as provided in subdivision (b) of this section,
  after deduction of the lawful expenses incurred, shall be deposited  and
  disposed   of   pursuant  to  the  provisions  of  section  one  hundred
  seventy-one-a of this chapter with respect to deposit and disposition of
  revenue.
    (h) Wrongful seizure. A defendant in a forfeiture action  may  recover
  in  an  action  for  wrongful  seizure  all costs and damages, including
  reasonable attorneys' fees, which may be  sustained  by  reason  of  the
  seizure  if the defendant recovers judgment in the forfeiture action, or
  if it is finally  decided  that  there  was  no  justification  for  the
  seizure.  In  order  to  establish  a  claim  for  wrongful seizure, the
  defendant must establish by a preponderance of  the  evidence  that  the
  seizure  was  made  without  reasonable  cause and not in good faith. An
  action  for  wrongful  seizure  under  this  subdivision  shall  be  the
  defendant's exclusive remedy in connection with seizures made under this
  section. No suit or action for wrongful seizure under this section shall
  be  instituted  unless such suit or action is commenced within two years
  after the time when the property was seized.
    (i) The remedies provided to the department by this section  shall  be
  in addition to any other remedies provided by law.
    (j)  An  action under this section is civil and remedial and shall not
  be deemed to be a penalty or criminal forfeiture for any purpose. Except
  as otherwise provided by statute, the  proceedings  under  this  section
  shall  be  governed by the civil practice law and rules. An action under
  this section is not a criminal proceeding and shall not be deemed to  be
  a  previous  prosecution  under  article forty of the criminal procedure
  law.
    (k) An additional ground for seizure and forfeiture under this section
  shall be where such police officer or peace officer shall discover  more
  than  ninety  liters of liquors in this state, with respect to which the
  taxes imposed by or pursuant to article eighteen of  this  chapter  have
  not  been  paid  or  assumed  by  a  person  registered as a distributor
  pursuant to such article, which are in the  course  of  distribution  in
  this  state  or  which  are  being sold in this state. All the foregoing
  subdivisions of this section shall apply to the seizure  and  forfeiture
  of  liquors referred to in this subdivision and the vehicle transporting
  the same as if such foregoing subdivisions specifically referred to such
  grounds and as if such grounds set forth in this  subdivision  were  set
  forth as grounds for seizure in subdivision (a) hereof. Provided that in
  the forfeiture action with respect to the liquors or vehicle referred to
  in  this subdivision, the department shall be required to show that such
  liquors were found within the state and that they were in the course  of
  distribution in this state or were being sold in this state.
    (1)  This section shall also apply to a forfeiture action with respect
  to the importation of more than ninety liters of  liquors  into  a  city
  imposing  a  tax  pursuant  to  the  authority  of  section four hundred
  forty-five of this chapter by a person not registered as  a  distributor
  for  purposes  of  such  tax  or,  in  addition,  with  respect  to  the
  distribution or sale of untaxed liquors in such city.
    * NB Expires October 31, 2007