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

                                  2628

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 25, 2009
                               ___________

Introduced  by  Sens.  PADAVAN,  DeFRANCISCO, GRIFFO, LARKIN, MORAHAN --
  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06875-01-9
              

S. 2628                             2

OF  THIS  TITLE,  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 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.