S T A T E   O F   N E W   Y O R K
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                                  11460

                          I N  A S S E M B L Y

                              June 15, 2010
                               ___________

Introduced by COMMITTEE ON RULES -- (at request of M. of A. Dinowitz) --
  read once and referred to the Committee on Ways and Means

AN  ACT  to amend the tax law and the administrative code of the city of
  New York, in relation to the destruction of seized and forfeited ciga-
  rettes and tobacco products

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 1846 of the tax law, as added by chapter 65 of the
laws of 1985, subdivision (a) as amended by section 2 of part E of chap-
ter 93 of the laws of 2002, subdivision (a-1) as added by section  3  of
part  J  of chapter 383 of the laws of 2001, subdivision (d) as added by
chapter 384 of the laws of 1999, is amended to read as follows:
  S 1846. Seizure and forfeiture of cigarettes.--(a) 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 or her special duties, shall discover any
cigarettes subject to tax provided by article twenty of this chapter  or
by  chapter  thirteen  of title eleven of the administrative code of the
city of New York, and upon which the tax has not been paid or the stamps
not affixed as required by such article or such chapter  thirteen,  they
are  hereby  authorized  and  empowered  forthwith  to  seize  and  take
possession of such cigarettes, together  with  any  vending  machine  or
receptacle  in  which  they  are held for sale. Such cigarettes, vending
machine or receptacle seized by a police officer or such  peace  officer
shall  be turned over to the commissioner. Such seized cigarettes, vend-
ing machine or receptacle, not including money contained in such vending
machine or receptacle, shall be forfeited to the state.  The commission-
er may, within a reasonable  time  thereafter,  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 [cigarettes and] vending machines
or receptacles at public sale and pay the proceeds into the state treas-
ury to the credit of the general fund. [Cigarettes so  seized  and  sold
shall  be sold only to an agent under article twenty of this chapter and

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD17762-01-0

A. 11460                            2

the notice of sale shall contain a provision to this  effect.]  Notwith-
standing any other provision of this section, the commissioner may enter
into  an  agreement  with  any city of this state which is authorized to
impose  a  tax similar to that imposed by article twenty of this chapter
to provide for the disposition between the state and any  such  city  of
the  proceeds  from  any  such  sale.    THE COMMISSIONER MUST, WITHIN A
REASONABLE TIME AFTER THE FORFEITURE OF SUCH CIGARETTES,  UPON  PUBLICA-
TION  OF  A  NOTICE  TO  SUCH  EFFECT FOR AT LEAST FIVE SUCCESSIVE DAYS,
BEFORE THE DAY OF DESTRUCTION, IN A NEWSPAPER PUBLISHED OR CIRCULATED IN
THE COUNTY WHERE THE SEIZURE WAS  MADE,  DESTROY  SUCH  FORFEITED  CIGA-
RETTES.  THE  COMMISSIONER  MAY, PRIOR TO ANY DESTRUCTION OF CIGARETTES,
PERMIT THE TRUE HOLDER OF THE TRADEMARK  RIGHTS  IN  THE  CIGARETTES  TO
INSPECT  SUCH  FORFEITED  CIGARETTES  IN ORDER TO ASSIST IN ANY INVESTI-
GATION REGARDING SUCH CIGARETTES.
  (a-1) 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 or her special
duties, shall  discover  any  cigarettes  which  have  been  stamped  in
violation of section four hundred eighty-b of this chapter, such officer
is   hereby  authorized  and  empowered  forthwith  to  seize  and  take
possession of such cigarettes, and such cigarettes shall be subject to a
forfeiture action pursuant to the procedures  provided  for  in  article
thirteen-A  of  the  civil  practice  law  and rules, as if such article
specifically provided for forfeiture of cigarettes  seized  pursuant  to
this  section as a preconviction forfeiture crime. Subdivisions (b), (c)
and (d) of this section shall not apply to cigarettes seized pursuant to
this subdivision.
  (b) In the alternative, the tax commission, on  reasonable  notice  by
mail  or otherwise, may permit the person from whom said cigarettes were
seized to redeem the said cigarettes, and any vending machine or  recep-
tacle seized therewith, by the payment of the tax due, plus a penalty of
fifty  per  centum  thereof,  plus interest on the amount of tax due for
each month or fraction thereof after such  tax  became  due  (determined
without  regard  to  any  extension of time for filing or paying) at the
rate applicable under subparagraph (ii) of paragraph (a) of  subdivision
one  of  section  four  hundred eighty-one of this chapter and the costs
incurred in such proceeding, which total payment shall not be less  than
five  dollars;  provided, however, that such seizure and sale or redemp-
tion shall not be deemed to relieve any person from fine or imprisonment
provided for in this article for violation of any provision  of  article
twenty of this chapter.
  (c)  In  the  alternative,  [if  the tax commission concludes that any
cigarettes seized pursuant to this section, when offered at public sale,
will bring a price less than the reasonably estimated  price  which  the
department  of  correctional services would have to pay for the purchase
of such cigarettes for sale to or use by inmates in  institutions  under
the  jurisdiction of such department,] the tax commission may dispose of
[such] ANY cigarettes SEIZED PURSUANT TO THIS  SECTION  by  transferring
them  to  the  department of correctional services for sale to or use by
inmates in such institutions.
  (d) Cigarettes seized pursuant to a violation of section four  hundred
seventy-three-b  of  this chapter shall be destroyed [or sold for export
at the discretion of the commissioner]. The department  may  also  seize
and  destroy  any  vending  machine  or  receptacle  in which cigarettes
stamped in violation of section four  hundred  seventy-three-b  of  this
chapter are held for sale.

A. 11460                            3

  S 2. Section 1846-a of the tax law, as added by chapter 61 of the laws
of  1989, subdivision (a-1) as added by chapter 552 of the laws of 2008,
is amended to read as follows:
  S  1846-a.  Forfeiture  action  with  respect to tobacco products. (a)
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  any  tobacco  products in excess of five hundred cigars or ten
pounds of tobacco which are being imported for sale in the  state  where
the person importing or causing such tobacco products to be imported has
not  been  appointed  as  a distributor pursuant to section four hundred
seventy-two of this chapter, such police officer  or  peace  officer  is
hereby  authorized  and empowered forthwith to seize and take possession
of such tobacco products. Such tobacco products seized by a police offi-
cer or peace officer shall be turned over to the commissioner  of  taxa-
tion and finance. Such seized tobacco products shall be forfeited to the
state.  The  commissioner  of  taxation and finance [may] MUST, within a
reasonable time thereafter, upon publication of a notice to such  effect
for at least five successive days, before the day of [sale] DESTRUCTION,
in  a  newspaper published or circulated in the county where the seizure
was made, [sell] DESTROY such forfeited tobacco products [at public sale
and pay the proceeds into the state treasury to the credit of the gener-
al fund.  Tobacco products so seized and sold shall be sold  only  to  a
distributor  appointed  under  article  twenty  of  this chapter and the
notice of sale shall contain a provision to this effect].
  (a-1) 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 the criminal procedure law, acting pursuant to his or
her  special  duties,  discovers  any  roll-your-own  tobacco that is in
violation of section four hundred eighty-c of this chapter, the  officer
is  authorized  and  empowered to seize and take possession of the roll-
your-own tobacco, and the roll-your-own tobacco is subject to a  forfei-
ture  action  under the procedures provided for in article thirteen-A of
the civil practice law  and  rules,  as  if  that  article  specifically
provided  for  forfeiture  of  roll-your-own  tobacco  seized under this
section as a preconviction forfeiture crime. Subdivisions (b) and (c) of
this section do not apply to roll-your-own tobacco  seized  pursuant  to
this subdivision.
  (b) In the alternative, the commissioner, on reasonable notice by mail
or otherwise, may permit the person from whom said tobacco products were
seized  to  redeem  the  said tobacco products by the payment of the tax
due, plus a penalty of fifty per centum thereof, plus  interest  on  the
amount  of  tax  due  for  each month or fraction thereof after such tax
became due (determined without regard  to  any  extension  of  time  for
filing  or  paying)  at  the  rate applicable under subparagraph (ii) of
paragraph (a) of subdivision one of section four hundred  eighty-one  of
this  chapter  and  the  costs  incurred in such proceeding, which total
payment shall not be less than five  dollars;  provided,  however,  that
such  seizure  and sale or redemption shall not be deemed to relieve any
person from fine or  imprisonment  provided  for  in  this  article  for
violation of any provision of article twenty of this chapter.
  (c) In the alternative, [if the commissioner concludes that any tobac-
co  products  seized  pursuant  to  this section, when offered at public
sale, will bring a price less than the reasonably estimated price  which
the  department  of  correctional  services  would  have  to pay for the
purchase of such tobacco products for sale  to  or  use  by  inmates  in

A. 11460                            4

institutions under the jurisdiction of such department,] the commission-
er  may  dispose  of [such] ANY tobacco products SEIZED PURSUANT TO THIS
SECTION by transferring them to the department of correctional  services
for sale to or use by inmates in such institutions.
  S  3.  Section  11-4021  of the administrative code of the city of New
York, as added by chapter 765 of the laws of 1985, is amended to read as
follows:
  S 11-4021 Seizure and forfeiture of cigarettes. (a) Whenever a  police
officer  designated  in  section 1.20 of the criminal procedure law or a
peace officer designated in subdivision five of  section  2.10  of  such
law,  acting  pursuant  to  his special duties, shall discover any ciga-
rettes subject to any tax provided by chapter thirteen  of  this  title,
and  upon  which  the tax has not been paid or the stamps not affixed as
required by such chapter,  they  are  hereby  authorized  and  empowered
forthwith to seize and take possession of such cigarettes, together with
any  vending machine or receptacle in which they are held for sale. Such
cigarettes, vending machine or receptacle seized by a police officer  or
such peace officer shall be turned over to the commissioner of finance.
  (b) The seized cigarettes and any vending machine or receptacle seized
therewith, but not the money contained in such vending machine or recep-
tacle  shall  thereupon be forfeited to the city, unless the person from
whom the seizure is made, or the owner of such seized cigarettes,  vend-
ing  machine  or  receptacle,  or any other person having an interest in
such property, shall within ten days  of  such  seizure,  apply  to  the
commissioner  of finance for a hearing to determine the propriety of the
seizure, or unless the commissioner of finance shall on his  own  motion
release the seized cigarettes, vending machine or receptacle. After such
hearing the commissioner of finance shall give notice of his decision to
the petitioner. The decision of the commissioner shall be reviewable for
error, illegality, unconstitutionality or any other reason whatsoever by
a  proceeding  under article seventy-eight of the civil practice law and
rules if application therefor is made to the supreme court within thirty
days after the giving of the notice of such  decision.  Such  proceeding
shall  not  be  instituted  unless  there  shall first be filed with the
commissioner of finance an  undertaking,  issued  by  a  surety  company
authorized  to  transact  business in New York state and approved by the
superintendent of insurance of New York state as to solvency and respon-
sibility, in such amount  as  a  justice  of  the  supreme  court  shall
approve,  to  the  effect  that  if such proceeding be dismissed, or the
seizure confirmed, the petitioner will pay all costs and  charges  which
may accrue in the prosecution of the proceeding.
  (c)  The  commissioner  of finance may, within a reasonable time after
the forfeiture to the city of such  [cigarettes,]  vending  machines  or
receptacles,  upon  publication  of a notice to such effect for at least
five successive days, in a newspaper  published  or  circulated  in  the
city,  sell such forfeited [cigarettes and] vending machines or recepta-
cles at public sale and pay the proceeds into the treasury of  the  city
to  the credit of the general fund. [Cigarettes so seized and sold shall
be sold only to an agent under chapter thirteen of this  title  and  the
notice  of  sale  shall contain a provision to this effect.] Such seized
[cigarettes,] vending machines or  receptacles  may  be  sold  prior  to
forfeiture  if  the  owner  of the seized property consents to the sale.
Notwithstanding any other provision of this section, the commissioner of
finance may enter into an agreement with the  state  tax  commission  to
provide  for  the disposition between the city and state of the proceeds
from any such sale. THE COMMISSIONER OF FINANCE MUST, WITHIN  A  REASON-

A. 11460                            5

ABLE  TIME  AFTER  THE  FORFEITURE  TO THE CITY OF SUCH CIGARETTES, UPON
PUBLICATION OF A NOTICE TO SUCH EFFECT  FOR  AT  LEAST  FIVE  SUCCESSIVE
DAYS,  PRIOR  TO  DESTRUCTION, IN A NEWSPAPER PUBLISHED OR CIRCULATED IN
THE CITY, DESTROY SUCH FORFEITED CIGARETTES. THE COMMISSIONER MAY, PRIOR
TO  ANY  DESTRUCTION OF CIGARETTES, PERMIT THE TRUE HOLDER OF THE TRADE-
MARK RIGHTS IN THE CIGARETTES TO INSPECT SUCH  FORFEITED  CIGARETTES  IN
ORDER TO ASSIST IN ANY INVESTIGATION REGARDING SUCH CIGARETTES.
  (d)  In  the  alternative,  the commissioner of finance, on reasonable
notice by mail or otherwise, may permit the person from whom said  ciga-
rettes  were  seized  to  redeem  the  said  cigarettes, and any vending
machine or receptacle seized therewith, or may permit the owner  of  any
such  cigarettes,  vending  machine or receptacle to redeem the same, by
the payment of the tax due, plus a penalty  of  fifty  percent  thereof,
plus interest on the amount of tax due for each month or fraction there-
of after such tax became due (determined without regard to any extension
of  time  for filing or paying) at the rate applicable under subdivision
(d) of section 11-1317 of this title and  the  costs  incurred  in  such
proceeding,  which  total  payment  shall not be less than five dollars;
provided, however, that such seizure and sale or redemption shall not be
deemed to relieve any person from fine or imprisonment provided  for  in
this  chapter for violation of any provisions of this chapter or chapter
thirteen of this title.
  (e) In the alternative, [if the commissioner of finance concludes that
any cigarettes seized pursuant to this section, when offered  at  public
sale,  will bring a price less than the reasonably estimated price which
the department of correction would have to pay for the purchase of  such
cigarettes  for  sale  to  or  use  by inmates in institutions under the
jurisdiction of  such  department,]  the  commissioner  of  finance  may
dispose  of  [such]  ANY  cigarettes  SEIZED PURSUANT TO THIS SECTION by
transferring them to the department of correction for sale to or use  by
inmates in such institutions.
  S 4. This act shall take effect immediately.