Assembly Bill A451B

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

                                   451

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
  tee 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

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

                                                           LBD04509-01-1

A. 451                              2

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
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

A. 451                              3

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.
  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.

A. 451                              4

  (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
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

A. 451                              5

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-
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)]  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.

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

                                 451--A

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
  tee  on  Ways and Means -- committee discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee

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

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

                                                           LBD04509-02-1

A. 451--A                           2

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
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.  ALL CIGARETTES FORFEITED TO THE STATE
SHALL BE DESTROYED OR USED FOR LAW  ENFORCEMENT  PURPOSES,  EXCEPT  THAT
CIGARETTES  THAT  VIOLATE, OR ARE SUSPECTED OF VIOLATING, FEDERAL TRADE-
MARK LAWS OR IMPORT LAWS SHALL NOT BE USED FOR LAW ENFORCEMENT PURPOSES.
IF THE COMMISSIONER DETERMINES THE CIGARETTES MAY NOT BE  USED  FOR  LAW
ENFORCEMENT  PURPOSES,  THE  COMMISSIONER MUST, WITHIN A REASONABLE TIME
AFTER THE FORFEITURE OF SUCH CIGARETTES, UPON PUBLICATION 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 CIGARETTES. THE COMMISSION-
ER 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 INVESTIGATION REGARDING SUCH  CIGA-
RETTES.
  (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

A. 451--A                           3

the jurisdiction of such department,] the tax commission may dispose  of
[such] ANY cigarettes SEIZED PURSUANT TO THIS SECTION, EXCEPT THOSE THAT
VIOLATE, OR ARE SUSPECTED OF VIOLATING, FEDERAL TRADEMARK LAWS OR IMPORT
LAWS,  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.
  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]  ALL TOBACCO PRODUCTS FORFEITED TO THE STATE SHALL BE
DESTROYED OR USED FOR LAW  ENFORCEMENT  PURPOSES,  EXCEPT  THAT  TOBACCO
PRODUCTS  THAT VIOLATE, OR ARE SUSPECTED OF VIOLATING, FEDERAL TRADEMARK
LAWS OR IMPORT LAWS SHALL NOT BE USED FOR LAW ENFORCEMENT  PURPOSES.  IF
THE COMMISSIONER DETERMINES THE TOBACCO PRODUCTS MAY NOT BE USED FOR LAW
ENFORCEMENT  PURPOSES,  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 general 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].   THE COMMISSIONER MAY, PRIOR TO  ANY  DESTRUCTION  OF  TOBACCO
PRODUCTS,  PERMIT THE TRUE HOLDER OF THE TRADEMARK RIGHTS IN THE TOBACCO
PRODUCTS TO INSPECT SUCH FORFEITED PRODUCTS IN ORDER TO  ASSIST  IN  ANY
INVESTIGATION REGARDING SUCH TOBACCO PRODUCTS.
  (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

A. 451--A                           4

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
institutions under the jurisdiction of such department,] the commission-
er  may  dispose  of [such] ANY tobacco products SEIZED PURSUANT TO THIS
SECTION, EXCEPT THOSE THAT  VIOLATE,  OR  ARE  SUSPECTED  OF  VIOLATING,
FEDERAL  TRADEMARK  LAWS  OR  IMPORT  LAWS,  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

A. 451--A                           5

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.    ALL CIGARETTES FORFEITED TO THE STATE SHALL BE
DESTROYED OR USED FOR LAW ENFORCEMENT PURPOSES, EXCEPT  THAT  CIGARETTES
THAT  VIOLATE,  OR ARE SUSPECTED OF VIOLATING, FEDERAL TRADEMARK LAWS OR
IMPORT LAWS SHALL NOT BE USED  FOR  LAW  ENFORCEMENT  PURPOSES.  IF  THE
COMMISSIONER  DETERMINES THE CIGARETTES MAY NOT BE USED FOR LAW ENFORCE-
MENT PURPOSES, THE COMMISSIONER OF FINANCE  MUST,  WITHIN  A  REASONABLE
TIME  AFTER THE FORFEITURE TO THE CITY OF SUCH CIGARETTES, UPON PUBLICA-
TION 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. SUCH 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 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)]  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, EXCEPT

A. 451--A                           6

THOSE THAT VIOLATE, OR ARE SUSPECTED  OF  VIOLATING,  FEDERAL  TRADEMARK
LAWS  OR  IMPORT  LAWS,  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.