2006 New York Code - Seizure And Forfeiture Of Vehicles Or Other Means Of Transportation Used To Transport Or For Deposit Or Concealment Of Cigarettes Or Used To Import To

 
    §  1847.  Seizure  and  forfeiture  of  vehicles  or  other  means  of
  transportation used to  transport  or  for  deposit  or  concealment  of
  cigarettes  or  used  to import tobacco products.  (a) Any peace officer
  designated in subdivision four or five of section 2.10 of  the  criminal
  procedure  law,  acting  pursuant  to  his or her special duties, or any
  police officer designated in section 1.20 of the criminal procedure  law
  may seize any vehicle or other means of transportation used to transport
  or  for the deposit or concealment of more than one hundred unstamped or
  unlawfully stamped packages of cigarettes subject to tax  under  article
  twenty  of  this  chapter  or by chapter thirteen of title eleven of the
  administrative code of the city of New York, other  than  a  vehicle  or
  other  means of transportation used by any person as a common carrier in
  transaction of business as such common  carrier,  and  such  vehicle  or
  other  means  of  transportation  shall  be  subject  to  forfeiture  as
  hereinafter in this section provided.
    (b) Any peace officer designated in subdivision four of  section  2.10
  of the criminal procedure law, acting pursuant to his special duties, or
  any  police officer designated in section 1.20 of the criminal procedure
  law may seize any vehicle or  other  means  of  transportation  used  to
  import  tobacco  products in excess of five hundred cigars or ten pounds
  of tobacco for sale where the person importing or causing  such  tobacco
  products to be imported has not been appointed a distributor pursuant to
  section  four  hundred seventy-two of this chapter, other than a vehicle
  or other means of transportation used by any person as a common  carrier
  in  transaction  of business as such common carrier, and such vehicle or
  other  means  of  transportation  shall  be  subject  to  forfeiture  as
  hereinafter in this section provided.
    (c)  The seized property shall be delivered by the officer having made
  the seizure to the custody  of  the  district  attorney  of  the  county
  wherein  the  seizure  was  made,  except  that in the city of New York,
  Yonkers or Buffalo, the  seized  property  shall  be  delivered  to  the
  custody of the police department of such city, together with a report of
  all the facts and circumstances of the seizure.
    (d)  It  shall  be  the  duty  of  the district attorney of the county
  wherein the seizure was made, if elsewhere than in the city of New York,
  Yonkers or Buffalo, and where the seizure is made in any of such  cities
  it  shall be the duty of the corporation counsel of the city, to inquire
  into the facts of the seizure so reported  to  him  and  if  it  appears
  probable  that  a forfeiture has been incurred, for the determination of
  which the institution of proceedings in the supreme court is  necessary,
  to  cause  the proper proceedings to be commenced and prosecuted, at any
  time after thirty days  from  the  date  of  seizure,  to  declare  such
  forfeiture,  unless, upon inquiry and examination such district attorney
  or corporation counsel decides that such proceedings cannot probably  be
  sustained  or  that  the ends of public justice do not require that they
  should be instituted or prosecuted, in which case, the district attorney
  or corporation counsel shall cause such seized property to  be  returned
  to the owner thereof.
    (e)  Notice  of  the institution of the forfeiture proceeding shall be
  served either (i) personally on the owners of  the  seized  property  or
  (ii)  by  registered  mail  to  the  owners'  last  known address and by
  publication of the notice once a week for  two  successive  weeks  in  a
  newspaper  published or circulated in the county wherein the seizure was
  made.
    (f) Forfeiture shall not be adjudged where the owners establish  by  a
  preponderance  of  the evidence that (i) the use of such seized property
  was not intentional on the part of any owner, (ii) said seized  property
  was  used  by  any person other than an owner thereof, while such seized
  property was unlawfully in the  possession  of  a  person  who  acquired
  possession  thereof  in  violation  of  the  criminal laws of the United
  States, or of any state, or (iii) forfeiture is not warranted  or  would
  not  serve  the  ends  of justice, taking into consideration the factors
  specified in paragraph (d)  of  subdivision  four  of  section  thirteen
  hundred eleven of the civil practice law and rules.
    (g)  The  district attorney or the police department having custody of
  the seized property, after such judicial  determination  of  forfeiture,
  shall,  at  its  discretion,  either retain such seized property for the
  official use of its office or department, transfer such property to  the
  department  of  taxation  and  finance  of the state of New York for its
  official use, or, upon publication of a notice to  such  effect  for  at
  least  five  successive  days,  before  the  day of sale, in a newspaper
  published or circulated in the county where the seizure was  made,  sell
  such  forfeited  property  at  public sale. The net proceeds of any such
  sale, after deduction of the lawful expenses  incurred,  shall  be  paid
  into  the general fund of the county wherein the seizure was made except
  that the net proceeds of the sale of property seized in the city of  New
  York,  Yonkers  or  Buffalo  shall be paid into the general fund of such
  city.
    (h) Whenever any property is seized and declared forfeited, any person
  interested in any such property may apply to a justice  of  the  supreme
  court,  on  serving a notice of petition and petition on the appropriate
  district attorney, police department or  corporation  counsel,  for  the
  recovery of such forfeited property. The justice of the supreme court to
  whom  such  application is made may restore said forfeited property upon
  such  terms  as  he  deems  reasonable  and  just,  if  the   petitioner
  establishes  either of the affirmative defenses set forth in subdivision
  (f) of this section and that the  petitioner  was  without  personal  or
  actual  knowledge of the forfeiture proceeding. If the petition is filed
  after the sale of the forfeited property, any judgment in favor  of  the
  petitioner  shall  be  limited  to  the net proceeds of such sale, after
  deduction of the lawful expenses and  costs  incurred  by  the  district
  attorney, police department or corporation counsel.
    (i) No suit or action under this section for wrongful seizure shall be
  instituted  unless  such  suit  or  action is commenced within two years
  after the time when the property was seized.