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This entry was published on 2014-09-22
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SECTION 1847
Seizure and forfeiture of vehicles or other means of transportation used to transport or for deposit or concealment of cigarettes or used...
Tax (TAX) CHAPTER 60, ARTICLE 37, PART 6
§ 1847. Seizure and forfeiture of vehicles or other means of
transportation used to transport or for deposit or concealment of
cigarettes or used to import tobacco products. (a) Any peace officer
designated in subdivision four or five of section 2.10 of the criminal
procedure law, acting pursuant to his or her special duties, or any
police officer designated in section 1.20 of the criminal procedure law
may seize any vehicle or other means of transportation used to transport
or for the deposit or concealment of more than one hundred unstamped or
unlawfully stamped packages of cigarettes subject to tax under article
twenty of this chapter or by chapter thirteen of title eleven of the
administrative code of the city of New York, other than a vehicle or
other means of transportation used by any person as a common carrier in
transaction of business as such common carrier, and such vehicle or
other means of transportation shall be subject to forfeiture as
hereinafter in this section provided.

(b) Any peace officer designated in subdivision four of section 2.10
of the criminal procedure law, acting pursuant to his special duties, or
any police officer designated in section 1.20 of the criminal procedure
law may seize any vehicle or other means of transportation used to
import tobacco products in excess of five hundred cigars or ten pounds
of tobacco for sale where the person importing or causing such tobacco
products to be imported has not been appointed a distributor pursuant to
section four hundred seventy-two of this chapter, other than a vehicle
or other means of transportation used by any person as a common carrier
in transaction of business as such common carrier, and such vehicle or
other means of transportation shall be subject to forfeiture as
hereinafter in this section provided.

(c) The seized property shall be delivered by the officer having made
the seizure to the custody of the district attorney of the county
wherein the seizure was made, except that in the city of New York,
Yonkers or Buffalo, the seized property shall be delivered to the
custody of the police department of such city, together with a report of
all the facts and circumstances of the seizure.

(d) It shall be the duty of the district attorney of the county
wherein the seizure was made, if elsewhere than in the city of New York,
Yonkers or Buffalo, and where the seizure is made in any of such cities
it shall be the duty of the corporation counsel of the city, to inquire
into the facts of the seizure so reported to him and if it appears
probable that a forfeiture has been incurred, 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 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 district attorney
or corporation counsel shall cause such seized property to be returned
to the owner thereof.

(e) Notice of the institution of the forfeiture proceeding shall be
served either (i) personally on the owners of the seized property or
(ii) 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.

(f) Forfeiture shall not be adjudged where the owners establish by a
preponderance of the evidence that (i) the use of such seized property
was not intentional on the part of any owner, (ii) said seized property
was used 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, or (iii) forfeiture is not warranted or would
not serve the ends of justice, taking into consideration the factors
specified in paragraph (d) of subdivision four of section thirteen
hundred eleven of the civil practice law and rules.

(g) The district attorney or the police department having custody of
the seized property, after such judicial determination of forfeiture,
shall, at its discretion, either retain such seized property for the
official use of its office or department, transfer such property to the
department of taxation and finance of the state of New York for its
official use, or, 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 seizure was made, 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 city of New
York, Yonkers or Buffalo shall be paid into the general fund of such
city.

(h) Whenever any property is seized and declared forfeited, any person
interested in any such property may apply to a justice of the supreme
court, on serving a notice of petition and petition on the appropriate
district attorney, police department or corporation counsel, for the
recovery of such forfeited property. The justice of the supreme court to
whom such application is made may restore said forfeited property upon
such terms as he deems reasonable and just, if the petitioner
establishes either of the affirmative defenses set forth in subdivision
(f) 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 corporation counsel.

(i) 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.