S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8428--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             December 29, 2023
                                ___________
 
 Introduced  by  M.  of A. RAJKUMAR, ARDILA, BENEDETTO, ALVAREZ, ZACCARO,
   BERGER, PHEFFER AMATO -- read once and referred to  the  Committee  on
   Economic  Development  --  recommitted  to  the  Committee on Economic
   Development in accordance with Assembly Rule 3, sec.  2  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN  ACT  to  amend  the  cannabis  law and the penal law, in relation to
   forfeiture of property involved in the unlawful sale of cannabis
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as the "stop mari-
 juana  over-proliferation  and keep empty operators of unlicensed trans-
 actions (SMOKEOUT) act".
   § 2. Subdivision 8 of section 132 of the cannabis  law,  as  added  by
 section  17  of part UU of chapter 56 of the laws of 2023, is amended to
 read as follows:
   8. Any person who knowingly and unlawfully sells, gives, or causes  to
 be  sold  or given, IN CONNECTION WITH THE OPERATION OF A BUSINESS OR AT
 THE BUSINESS LOCATION, any cannabis or cannabis products for  which  the
 sale  of such products requires a license, permit, or registration under
 this chapter [where such person owns and/or is  principally  responsible
 for the operation of a business where such products were sold, given, or
 caused  to  be  sold  or given] without having obtained a valid license,
 permit or registration therefor shall be guilty of a class  A  misdemea-
 nor.    A  MUNICIPALITY  SHALL HAVE THE AUTHORITY TO ORDER THE IMMEDIATE
 CLOSURE OF ANY BUSINESS WHICH IS FOUND TO HAVE VIOLATED  THE  PROVISIONS
 OF THIS SECTION, OR OF ANY BUSINESS WHERE A VIOLATION OF THIS SECTION OR
 ANY  OTHER  VIOLATION  EXISTS  THAT  POSES AN IMMEDIATE THREAT TO PUBLIC
 HEALTH AND  SAFETY;  AND  TO  SEIZE  ANY  MERCHANDISE  RELATED  TO  SUCH
 VIOLATION  OR  VIOLATIONS INCLUDING CANNABIS, CANNABIS RELATED PRODUCTS,
 TOBACCO, TOBACCO RELATED PRODUCTS  AND  ANY  PROCEEDS  RELATING  THERETO
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13780-09-4
              

 A. 8428--A                          2
 
 PURSUANT  TO  THE  PROVISIONS  OF ARTICLE FOUR HUNDRED FIFTY-FIVE OF THE
 PENAL LAW.  FOR THE PURPOSES OF THIS SUBDIVISION, AN  "IMMEDIATE  THREAT
 TO  PUBLIC  HEALTH AND SAFETY" SHALL INCLUDE, BUT IS NOT LIMITED TO, THE
 PRESENCE  OF  ANY  CANNABIS  OR  CANNABIS  PRODUCTS IN CONNECTION WITH A
 VIOLATION OF THIS SECTION; THE PRESENCE  OF  ANY  CIGARETTE  OR  TOBACCO
 PRODUCTS  IN  CONNECTION  WITH  A  VIOLATION OF SECTION EIGHTEEN HUNDRED
 FOURTEEN OF THE TAX LAW; THE PRESENCE OF ANY  SCHEDULE  I  SUBSTANCE  AS
 DEFINED BY SECTION THIRTY-THREE HUNDRED SIX OF THE PUBLIC HEALTH LAW; OR
 A  VIOLATION  OF  ARTICLE THIRTEEN-F OF THE PUBLIC HEALTH LAW, INCLUDING
 THE PRESENCE OF A SUBSTANCE OR PRODUCT WHOSE SALE  IS  PROHIBITED  UNDER
 SUCH  ARTICLE.  For  the purposes of this section, "operation of a busi-
 ness" shall mean engaging in the sale  of,  or  otherwise  offering  for
 sale,  goods and services to the general public, including through indi-
 rect retail sales.
   § 3. The title heading of title W of part  4  of  the  penal  law,  as
 amended  by  chapter  920  of  the  laws  of 1969, is amended to read as
 follows:
           PROVISIONS RELATING TO FIREARMS, FIREWORKS, PORNOGRAPHY
               EQUIPMENT, CANNABIS AND VEHICLES USED IN THE
                    TRANSPORTATION OF GAMBLING RECORDS
   § 4. The penal law is amended by adding a new article 455 to  read  as
 follows:
                                 ARTICLE 455
    SEIZURE AND FORFEITURE OF PROPERTY INVOLVED IN THE UNLAWFUL SALE OF
                                 CANNABIS
 
 SECTION 455.00 SEIZURE AND FORFEITURE OF PROPERTY INVOLVED IN THE UNLAW-
                  FUL SALE OF CANNABIS.
 § 455.00 SEIZURE  AND  FORFEITURE  OF  PROPERTY INVOLVED IN THE UNLAWFUL
            SALE OF CANNABIS.
   1. ANY PROPERTY CONSTITUTING THE PROCEEDS OR SUBSTITUTED  PROCEEDS  OF
 AN  OFFENSE  INVOLVING  THE UNLAWFUL OR UNLICENSED SALE OF CANNABIS; AND
 ANY PROPERTY CONSTITUTING AN INSTRUMENTALITY OF SUCH OFFENSE,  INCLUDING
 REAL  PROPERTY,  IS  SUBJECT TO FORFEITURE PURSUANT TO THIS ARTICLE. ANY
 PEACE OFFICER, ACTING PURSUANT TO THE SPECIAL DUTIES OF THE PEACE  OFFI-
 CER,  OR POLICE OFFICER OF THIS STATE MAY SEIZE ANY PROPERTY INVOLVED IN
 THE UNLAWFUL OR UNLICENSED SALE OF CANNABIS.
   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 TOGETH-
 ER 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 WAS MADE, IF ELSEWHERE THAN IN THE CITIES OF NEW YORK, YONK-
 ERS OR BUFFALO, AND WHERE THE SEIZURE IS MADE IN  EITHER  SUCH  CITY  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, 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, AT ANY TIME AFTER THIRTY  DAYS  FROM  THE  DATE  OF  SEIZURE,  TO
 DECLARE  SUCH  FORFEITURE,  UNLESS,  UPON  INQUIRY  AND EXAMINATION SUCH
 DISTRICT ATTORNEY 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
 A. 8428--A                          3
 
 DISTRICT ATTORNEY OR CORPORATION COUNSEL SHALL CAUSE SUCH SEIZED PROPER-
 TY 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  PUBLICATION
 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  ESTABLISHED  BY
 PREPONDERANCE  OF  THE EVIDENCE THAT THE USE OF SUCH SEIZED PROPERTY WAS
 NOT INTENTIONAL ON THE PART OF ANY OWNER.
   6. THE DISTRICT ATTORNEY OR THE POLICE DEPARTMENT  HAVING  CUSTODY  OF
 THE  SEIZED  PROPERTY,  AFTER SUCH JUDICIAL DETERMINATION OF FORFEITURE,
 SHALL, BY A PUBLIC NOTICE OF AT LEAST FIVE  DAYS,  SELL  SUCH  FORFEITED
 PROPERTY  AT PUBLIC SALE; PROVIDED, HOWEVER, THAT CANNABIS AND CANNABIS-
 INFUSED PRODUCTS SHALL NOT BE SOLD.  ANY  CANNABIS  OR  CANNABIS-INFUSED
 PRODUCTS WHICH HAVE BEEN DETERMINED TO BE SUBJECT TO FORFEITURE SHALL BE
 DESTROYED  IN ACCORDANCE WITH REGULATIONS TO BE ESTABLISHED BY THE DIVI-
 SION OF THE STATE POLICE. THE NET PROCEEDS OF ANY PERMITTED SALE,  AFTER
 DEDUCTION OF THE LAWFUL EXPENSES INCURRED, SHALL BE PAID INTO THE GENER-
 AL  FUND  OF THE COUNTY WHEREIN THE SEIZURE WAS MADE EXCEPT THAT THE NET
 PROCEEDS OF THE PERMITTED 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  OR  SHE  DEEMS
 REASONABLE AND JUST, IF THE PETITIONER ESTABLISHES THE DEFENSE SET FORTH
 IN  SUBDIVISION FIVE OF THIS SECTION AND THAT THE PETITIONER WAS WITHOUT
 PERSONAL OR ACTUAL KNOWLEDGE OF THE FORFEITURE PROCEEDING. IF THE  PETI-
 TION  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.
   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.
   § 5. This act shall take effect immediately.