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This entry was published on 2014-09-22
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SECTION 1845
Forfeiture action with respect to alcoholic beverages and vehicles carrying such beverages
Tax (TAX) CHAPTER 60, ARTICLE 37, PART 6
§ 1845. Forfeiture action with respect to alcoholic beverages and
vehicles carrying such beverages. (a) Temporary seizure. 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 more
than ninety liters of liquors which are being imported for sale or use
in the state, where the person importing or causing such liquors to be
imported is not registered as a distributor under section four hundred
twenty-one of this chapter, such police officer or peace officer is
hereby authorized to seize and take possession of such liquors, and to
seize and take possession of the vehicle or other means of
transportation used to transport such liquors.

(b) Retention of property. The department shall hold and safely keep
such liquors, vehicle or other means of transportation seized pursuant
to subdivision (a) of this section. Seized liquors may be deposited to
the credit of the department at a storage facility within the state or
may be sold by the department.

(c) Confirmation of temporary seizure. Within five business days after
the temporary seizure of liquors, vehicle or other means of
transportation pursuant to subdivision (a) of this section, the
department shall move in supreme court in the county where the temporary
seizure occurred, on such notice as the court shall direct to the owners
of the property, to confirm the temporary seizure. If the department
fails to make such motion within the required period, such seized
property shall be restored to the owners thereof as provided in
subdivision (e) of this section. On a motion for an order confirming the
seizure, the department shall show, by affidavit and such other written
evidence as may be submitted, that there is a cause of action for
forfeiture under subdivision (d) of this section and that there are
grounds for confirmation of the seizure. The department shall include,
in its motion papers, an inventory of all seized property. The court
shall grant an application for an order confirming the seizure when it
determines that there is a substantial probability that the department
will prevail on the issue of forfeiture.

(d) Forfeiture action. (1) A forfeiture action shall be commenced
within forty-five days from the date of the seizure. Such action shall
be commenced and service shall be made in accordance with the methods
authorized by the civil practice law and rules or the business
corporation law. Upon such terms as may be just and upon good cause
shown, the court may extend the time, not exceeding thirty days, within
which the summons must be served, provided that the application for
extentions made before the expiration of the time fixed. If the
department fails to commence the forfeiture action within the required
period, such seized property shall be restored to the owners thereof as
provided in subdivision (e) of this section.

(2) A forfeiture action under this subdivision shall be commenced in
supreme court. The proper venue for trial of an action for forfeiture is
the county in which the temporary seizure authorized by subdivision (a)
of this section occurred.

(3) Forfeiture of liquors together with the vehicle or other means of
transportation used to transport such liquors shall be adjudged where
the department proves, by clear and convincing evidence, that the person
importing or causing such liquors to be imported was not registered as a
distributor under section four hundred twenty-one of this chapter. All
defendants in a forfeiture action brought pursuant to this article shall
have the right to trial by jury on any issue of fact.

(4) The court in which a forfeiture action is pending may dismiss said
action in the interests of justice upon an application as provided for
herein.

(A) At any time during the pendency of a forfeiture action, the
department or a defendant may apply for an order dismissing the
complaint and terminating the forfeiture action in the interest of
justice.

(B) Such application for relief provided in subparagraph (a) hereof
must be made in writing and upon notice to all parties. The court, in
its discretion, may direct that notice be given to any other person
having an interest in the property.

(C) An application for the relief provided for in subparagraph (A)
hereof must be brought exclusively in the supreme court in the county in
which the forfeiture action is pending.

(D) The court may grant the relief provided in subparagraph (A) hereof
if it finds that such relief is warranted by the existence of some
compelling factor, consideration or circumstance demonstrating that
forfeiture of the property or any part thereof, would not serve the ends
of justice. Reporting and payment of the tax imposed by or pursuant to
article eighteen of this chapter with respect to such liquors subsequent
to the seizure of such liquors shall not constitute a compelling factor,
consideration or circumstance warranting the granting of the relief
provided for in subparagraph (A) of this paragraph. In determining
whether such relief is warranted by the existence of some compelling
factor, consideration or circumstances pursuant to this paragraph, the
court may, however, take into account the fact that such taxes with
respect to the seized liquors have been reported and remitted to the
state prior to the temporary seizure of such liquors if such
unregistered importation into the state was effected in good faith and
without knowledge of the requirement of registration and without intent
to evade tax. The court must issue a written decision, stating the basis
for an order issued pursuant to this paragraph.

(5) An action under this subdivision shall be stayed during the
pendency of a criminal action which is related to it; provided, that
upon motion of a defendant in the forfeiture action or the department, a
court may, in the interest of justice and for good cause, and with the
consent of all parties, order that the forfeiture action proceed despite
the pending criminal action; and provided that such stay shall not
prevent the granting or continuance of an order confirming the seizure
provided under this section.

(6) The total that may be recovered shall not exceed the value of the
liquors seized and, in addition, either the value of the vehicle or
other means of transportation used to transport such liquors or three
times the amount of the tax, interest and penalty under article eighteen
of this chapter with respect to the liquors, whichever is less.

(e) Return of property. If (1) the department fails to move for
confirmation of the seizure pursuant to subdivision (c) of this section
or (2) a court denies an application for an order confirming the seizure
or (3) judgment is entered against the department in the forfeiture
action and that judgment is affirmed after all appeals are exhausted or
the time within which to appeal has expired, then the department shall
restore such seized liquors, or liquors of a like quantity and type, or
such seized vehicle or other means of transportation to the owners
thereof. Alternatively, if such seized liquors have been sold as
provided in subdivision (b) of this section, the department shall pay to
the owners of such liquors the proceeds of such sale or, if greater, an
amount of money representing the fair market value of the liquors at the
time of the seizure.

(f) Release of property. A person whose property has been seized may
move, upon notice to the commissioner, in the supreme court in the
county in which the temporary seizure occurred, for an order releasing
all or part of the property seized upon payment of the department's
reasonable fees and expenses, if any. On such a motion, the defendant
shall give an undertaking in accordance with article twenty-five of the
civil practice law and rules, in an amount equal to the value of the
property sought to be released, that defendant will pay the department
the value of such property which may be adjudged forfeited (but in the
case of the owner of a vehicle or other means of transportation, the
amount of the undertaking required shall not exceed three times the
amount of all taxes, interest and penalties due under article eighteen
of this chapter).

(g) Disposal of property. The department, after a judicial
determination of forfeiture, shall, in its discretion, either retain
such seized property for its official use or sell such forfeited
property at public sale. The net proceeds of any such sale, or of any
sale of seized liquors as provided in subdivision (b) of this section,
after deduction of the lawful expenses incurred, shall be deposited and
disposed of pursuant to the provisions of section one hundred
seventy-one-a of this chapter with respect to deposit and disposition of
revenue.

(h) Wrongful seizure. A defendant in a forfeiture action may recover
in an action for wrongful seizure all costs and damages, including
reasonable attorneys' fees, which may be sustained by reason of the
seizure if the defendant recovers judgment in the forfeiture action, or
if it is finally decided that there was no justification for the
seizure. In order to establish a claim for wrongful seizure, the
defendant must establish by a preponderance of the evidence that the
seizure was made without reasonable cause and not in good faith. An
action for wrongful seizure under this subdivision shall be the
defendant's exclusive remedy in connection with seizures made under this
section. No suit or action for wrongful seizure under this section shall
be instituted unless such suit or action is commenced within two years
after the time when the property was seized.

(i) The remedies provided to the department by this section shall be
in addition to any other remedies provided by law.

(j) An action under this section is civil and remedial and shall not
be deemed to be a penalty or criminal forfeiture for any purpose. Except
as otherwise provided by statute, the proceedings under this section
shall be governed by the civil practice law and rules. An action under
this section is not a criminal proceeding and shall not be deemed to be
a previous prosecution under article forty of the criminal procedure
law.

(k) An additional ground for seizure and forfeiture under this section
shall be where such police officer or peace officer shall discover more
than ninety liters of liquors in this state, with respect to which the
taxes imposed by or pursuant to article eighteen of this chapter have
not been paid or assumed by a person registered as a distributor
pursuant to such article, which are in the course of distribution in
this state or which are being sold in this state. All the foregoing
subdivisions of this section shall apply to the seizure and forfeiture
of liquors referred to in this subdivision and the vehicle transporting
the same as if such foregoing subdivisions specifically referred to such
grounds and as if such grounds set forth in this subdivision were set
forth as grounds for seizure in subdivision (a) hereof. Provided that in
the forfeiture action with respect to the liquors or vehicle referred to
in this subdivision, the department shall be required to show that such
liquors were found within the state and that they were in the course of
distribution in this state or were being sold in this state.

(l) This section shall also apply to a forfeiture action with respect
to the importation of more than ninety liters of liquors into a city
imposing a tax pursuant to the authority of section four hundred
forty-five of this chapter by a person not registered as a distributor
for purposes of such tax or, in addition, with respect to the
distribution or sale of untaxed liquors in such city.