S T A T E O F N E W Y O R K
________________________________________________________________________
4938
2011-2012 Regular Sessions
I N A S S E M B L Y
February 9, 2011
___________
Introduced by M. of A. MAYERSOHN -- Multi-Sponsored by -- M. of A.
CLARK, HOYT, 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.
LBD08584-01-1
A. 4938 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.