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

                                  4562

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 5, 2009
                               ___________

Introduced  by  M.  of  A.  MAYERSOHN  -- Multi-Sponsored by -- M. of A.
  CLARK, HOYT, JOHN, KOON, SWEENEY -- read  once  and  referred  to  the
  Committee on Codes

AN ACT to amend the penal law, in relation to authorizing the seizure of
  vehicles of drivers patronizing prostitution therefrom

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

  Section 1. The penal law is amended by adding a  new  article  416  to
read as follows:
                               ARTICLE 416
    SEIZURE AND FORFEITURE OF VEHICLES USED TO PATRONIZE PROSTITUTION
SECTION  416.00  SEIZURE  AND  FORFEITURE  OF VEHICLES USED TO PATRONIZE
                 PROSTITUTION.
S 416.00 SEIZURE AND FORFEITURE OF VEHICLES USED TO PATRONIZE  PROSTITU-
               TION.
  1.  IT  SHALL BE UNLAWFUL FOR THE DRIVER OF ANY VEHICLE TO PATRONIZE A
PROSTITUTE THEREFROM IN VIOLATION OF SECTION 230.04, 230.05 OR 230.06 OF
THIS CHAPTER. ANY SUCH VEHICLE BEING USED IN VIOLATION OF THIS  SUBDIVI-
SION  SHALL BE SEIZED BY ANY PEACE OFFICER ACTING PURSUANT TO HIS OR HER
SPECIAL  DUTIES,  OR  POLICE  OFFICER  AND  FORFEITED  PURSUANT  TO  THE
PROVISIONS OF THIS SECTION.
  2.  THE  SEIZED  PROPERTY  SHALL BE DELIVERED BY THE POLICE OFFICER OR
PEACE OFFICER HAVING MADE THE SEIZURE TO THE  CUSTODY  OF  THE  DISTRICT
ATTORNEY  OF THE COUNTY WHEREIN THE SEIZURE WAS MADE, EXCEPT THAT IN THE
CITIES OF NEW YORK, YONKERS AND BUFFALO, THE SEIZED  PROPERTY  SHALL  BE
DELIVERED  TO  THE  CUSTODY  OF  THE  POLICE  DEPARTMENT OF SUCH CITIES,
TOGETHER WITH A REPORT  OF  ALL  THE  FACTS  AND  CIRCUMSTANCES  OF  THE
SEIZURE.
  3. IT SHALL BE THE DUTY OF THE DISTRICT ATTORNEY OF THE COUNTY WHEREIN
THE  SEIZURE IS MADE, IF ELSEWHERE THAN IN THE CITY OF NEW YORK, YONKERS
OR BUFFALO, AND WHERE THE SEIZURE IS MADE IN EITHER SUCH CITY  IT  SHALL

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04504-01-9
              

A. 4562                             2

BE  THE DUTY OF THE CORPORATION COUNSEL OF THE CITY, TO INQUIRE INTO THE
FACTS OF THE SEIZURE SO REPORTED TO HIM OR HER AND IF IT APPEARS  PROBA-
BLE THAT A FORFEITURE HAS BEEN INCURRED BY REASON OF A VIOLATION OF THIS
SECTION,  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  EXAMINA-
TION,  SUCH  DISTRICT  ATTORNEY OR CORPORATION COUNSEL DECIDES THAT SUCH
PROCEEDINGS CAN NOT 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.
  4.  NOTICE  OF  THE  INSTITUTION OF THE FORFEITURE PROCEEDING SHALL BE
SERVED EITHER (A) PERSONALLY ON THE OWNERS OF THE  SEIZED  PROPERTY,  OR
(B) BY REGISTERED MAIL TO THE OWNERS' LAST KNOWN ADDRESS AND BY PUBLICA-
TION  OF  THE NOTICE ONCE A WEEK FOR TWO SUCCESSIVE WEEKS IN A NEWSPAPER
PUBLISHED OR CIRCULATED IN THE COUNTY WHEREIN THE SEIZURE WAS MADE.
  5. FORFEITURE SHALL NOT BE ADJUDGED  WHERE  THE  OWNERS  ESTABLISH  BY
PREPONDERANCE  OF THE EVIDENCE THAT (A) THE USE OF SUCH SEIZED PROPERTY,
IN VIOLATION OF SUBDIVISION ONE OF THIS SECTION, WAS NOT INTENTIONAL  ON
THE PART OF ANY OWNER, OR (B) SAID SEIZED PROPERTY WAS USED IN VIOLATION
OF  SUBDIVISION  ONE  OF  THIS SECTION 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.
  6. THE DISTRICT ATTORNEY OR THE POLICE DEPARTMENT  HAVING  CUSTODY  OF
THE  SEIZED  PROPERTY,  AFTER SUCH JUDICIAL DETERMINATION OF FORFEITURE,
SHALL, AT THEIR DISCRETION, EITHER RETAIN SUCH SEIZED PROPERTY  FOR  THE
OFFICIAL USE OF THEIR OFFICE OR DEPARTMENT, OR, BY A PUBLIC NOTICE OF AT
LEAST  FIVE  DAYS, 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 CITIES OF NEW YORK, YONKERS AND BUFFALO SHALL BE PAID INTO
THE RESPECTIVE GENERAL FUNDS OF SUCH CITIES.
  7.  WHENEVER ANY PERSON INTERESTED IN ANY PROPERTY WHICH IS SEIZED AND
DECLARED FORFEITED UNDER THE PROVISIONS OF THIS  SECTION  FILES  WITH  A
JUSTICE  OF  THE  SUPREME  COURT  A  PETITION  FOR  THE RECOVERY OF SUCH
FORFEITED PROPERTY, THE JUSTICE OF THE SUPREME COURT  MAY  RESTORE  SAID
FORFEITED PROPERTY UPON SUCH TERMS AND CONDITIONS AS HE DEEMS REASONABLE
AND  JUST,  IF  THE  PETITIONER  ESTABLISHES  EITHER  OF THE AFFIRMATIVE
DEFENSES SET FORTH IN SUBDIVISION FIVE OF  THIS  SECTION  AND  THAT  THE
PETITIONER  WAS  WITHOUT  PERSONAL OR ACTUAL KNOWLEDGE OF THE FORFEITURE
PROCEEDING.  IF THE PETITION BE 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  CORPO-
RATION COUNSEL.
  8.  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.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.