S T A T E O F N E W Y O R K
________________________________________________________________________
5961
2009-2010 Regular Sessions
I N A S S E M B L Y
February 23, 2009
___________
Introduced by M. of A. SCHIMMINGER, PEOPLES, ORTIZ -- Multi-Sponsored by
-- M. of A. ABBATE, AUBRY, DelMONTE, GOTTFRIED, HOOPER, MAGEE, PHEFFER
-- read once and referred to the Committee on Health
AN ACT to amend the public health law, in relation to the seizure and
forfeiture of property or money furnished in the illegal exchange of a
controlled substance
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 3388 of the public health law, as added by chapter
878 of the laws of 1972, subdivision 2 as amended by chapter 843 of the
laws of 1980, subdivision 3 as amended by chapter 419 of the laws of
1986, subdivision 4 as amended by chapter 527 of the laws of 1987 and
subdivision 7 as amended by chapter 655 of the laws of 1990, is amended
to read as follows:
S 3388. Seizure and forfeiture of vehicles, vessels or aircraft
unlawfully used to conceal, convey or transport controlled substances
AND OF PROPERTY FURNISHED IN EXCHANGE FOR SUCH SUBSTANCES. 1. Except as
authorized in this article, it shall be unlawful to:
(a) transport, carry, or convey any controlled substance in, upon, or
by means of any vehicle, vessel or aircraft; or
(b) conceal or possess any controlled substance in or upon any vehi-
cle, vessel or aircraft, or upon the person of anyone in or upon any
vehicle, vessel or aircraft; or
(c) use any vehicle, vessel or aircraft to facilitate the transporta-
tion, carriage, conveyance, concealment, receipt, possession, purchase,
or sale of any controlled substance[.]; OR
(D) POSSESS PROPERTY FURNISHED IN EXCHANGE FOR ANY CONTROLLED
SUBSTANCE IN VIOLATION OF THIS ARTICLE.
2. (A) Any vehicle, vessel or aircraft which has been or is being
used in violation of subdivision one OF THIS SECTION, (except a vehicle,
vessel or aircraft used by any person as a common carrier in the trans-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08935-01-9
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action of business as such common carrier) AND PROPERTY, POSSESSED IN
VIOLATION OF PARAGRAPH (D) OF SUCH SUBDIVISION, shall be seized by any
peace officer, acting pursuant to his OR HER special duties, or police
officer, and forfeited as hereinafter in this section provided.
(B) A vehicle, vessel or aircraft is not subject to forfeiture unless
used in connection with acts or conduct which would constitute a felony
under article [220] TWO HUNDRED TWENTY of the penal law.
(C) FOR PURPOSES OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION
AND THIS SUBDIVISION:
(1) THE TERM "PROPERTY" HAS THE ORDINARY, COMMON MEANING ASCRIBED TO
IT AND INCLUDES REAL AND PERSONAL PROPERTY, MONEY, NEGOTIABLE AND
NON-NEGOTIABLE INSTRUMENTS AND SECURITIES, AND THE BENEFITS AND PROPERTY
RESULTING FROM THE USE OR EXCHANGE OF ANY OF THEM.
(2) IT SHALL BE A PRESUMPTION (SUBJECT TO REBUTTAL BY THE CLAIMANT)
THAT ANY MONEY FOUND IN CLOSE PROXIMITY TO ANY CONTROLLED SUBSTANCE
OWNED OR POSSESSED IN VIOLATION OF THIS ARTICLE OR IN CLOSE PROXIMITY TO
ANY MATERIALS OR RECORDS USED IN CONNECTION THEREWITH, WAS MONEY
FURNISHED IN VIOLATION OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS
SECTION.
3. The seized property shall be delivered by the officer having made
the seizure to the custody of the district attorney of the county where-
in the seizure was made, except that in the cities of New York, Yonkers,
Rochester and Buffalo the seized property shall be delivered to the
custody of the police department of such cities and such property seized
by a member or members of the state police shall be delivered to the
custody of the superintendent of state police, together with a report of
all the facts and circumstances of the seizure.
4. It shall be the duty of the attorney general in seizures by members
of the state police, otherwise it shall be the duty of the district
attorney of the county wherein the seizure is made, if elsewhere than in
the cities of New York, Yonkers, Rochester or Buffalo, and where the
seizure is made in 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 OR HER and if it appears probable that a forfeiture has
been incurred by reason of a violation of this section, for the determi-
nation of which the institution of proceedings in the supreme court is
necessary, to cause the proper proceedings to be commenced and prose-
cuted, not later than twenty days after written demand by a person
claiming ownership thereof, to declare such forfeiture, unless, upon
inquiry and examination, such district attorney, attorney general 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 attor-
ney, the attorney general or corporation counsel shall cause such seized
property to be returned to the owner thereof. The procedure for
proceedings instituted under this section shall conform as much as
possible to the procedure for attachment.
5. 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 publi-
cation of the notice once a week for two successive weeks in a newspaper
published or circulated in the county wherein the seizure was made.
6. Forfeiture shall not be adjudged where the owners establish by
preponderance of the evidence that:
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(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.
7. The district attorney, the superintendent of state police or the
police department having custody of the seized property, after such
judicial determination of forfeiture, shall EXCEPT WITH RESPECT TO
MONEY, at their discretion, either retain such seized property for the
official use of their office, division or department, or, by a public
notice of at least five days, sell such forfeited property at public
sale; provided, however, that where such property is subject to a
perfected lien such property may not be retained for their official use
unless all such liens on the property to be retained have been or will
be satisfied. The net proceeds of any such sale, after deduction of the
lawful expenses incurred, AND ALL SEIZED MONEY 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 AND ALL MONEY seized in the cities
of New York, Yonkers, Rochester and Buffalo shall be paid into the
respective general funds of such cities, and THE NET PROCEEDS of the
sale of property AND ALL MONEY seized by the state police into the
general fund of the state.
8. Whenever any person interested in any property OR MONEY 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 OR MONEY, the justice of the supreme court may
restore said forfeited property OR MONEY upon such terms and conditions
as he OR SHE deems reasonable and just, if the petitioner establishes
either of the affirmative defenses set forth in subdivision six 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 corporation counsel.
9. 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 immediately.