Senate Bill S2492

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

                                  2492

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 17, 2013
                               ___________

Introduced  by  Sen.  LANZA  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the penal law, in relation to the seizure and forfeiture
  of vehicles, vessels and aircraft used in counterfeit goods

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

  Section  1.  Title J of part 3 of the penal law is amended by adding a
new article 166 to read as follows:
                               ARTICLE 166
             SEIZURE AND FORFEITURE OF VEHICLES, VESSELS AND
                   AIRCRAFT USED IN COUNTERFEIT GOODS
SECTION 166.00 SEIZURE AND FORFEITURE OF VEHICLES, VESSELS AND  AIRCRAFT
                 USED IN COUNTERFEIT GOODS.
S 166.00 SEIZURE  AND  FORFEITURE OF VEHICLES, VESSELS AND AIRCRAFT USED
           IN COUNTERFEIT GOODS.
  1. ANY VEHICLE, VESSEL OR AIRCRAFT WHICH HAS BEEN OR IS BEING USED  IN
VIOLATION  OF  SECTION  165.71, 165.72, OR 165.73 OF THIS TITLE SHALL BE
SEIZED BY ANY PEACE OFFICER, WHO  IS  ACTING  PURSUANT  TO  HIS  SPECIAL
DUTIES,  OR  POLICE  OFFICER, AND FORFEITED AS PROVIDED IN THIS SECTION.
HOWEVER, SUCH FORFEITURE AND SEIZURE PROVISIONS SHALL NOT APPLY  TO  ANY
VEHICLE,  VESSEL  OR  AIRCRAFT USED BY ANY PERSON AS A COMMON CARRIER IN
THE TRANSACTION OF BUSINESS AS SUCH COMMON CARRIER.
  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,  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,  TO  INQUIRE  INTO  THE  FACTS OF THE SEIZURE SO
REPORTED TO HIM AND IF IT APPEARS PROBABLE THAT A  FORFEITURE  HAS  BEEN
INCURRED  BY  REASON OF A VIOLATION OF SECTION 165.71, 165.72, OR 165.73
OF THIS TITLE,  FOR  THE  DETERMINATION  OF  WHICH  THE  INSTITUTION  OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03813-01-3
              

S. 2492                             2

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 THE SEIZURE, TO DECLARE SUCH FORFEITURE, UNLESS,
UPON  INQUIRY  AND  EXAMINATION,  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 CORPO-
RATION 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 SECTION 165.71, 165.72, OR 165.73 OF THIS TITLE, WAS NOT
INTENTIONAL ON THE PART OF ANY OWNER, OR (B) SUCH  SEIZED  PROPERTY  WAS
USED IN VIOLATION OF SECTION 165.71, 165.72, OR 165.73 OF THIS TITLE, 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.
  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 SUCH
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  IS 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.