S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    366
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 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.  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.
 § 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  OR  HER
 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 OR HER AND IF IT APPEARS PROBABLE THAT A FORFEITURE  HAS
 BEEN  INCURRED  BY  REASON  OF A VIOLATION OF SECTION 165.71, 165.72, OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD03264-01-9

 S. 366                              2
 
 165.73 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 OR SHE DEEMS
 REASONABLE AND JUST, IF THE PETITIONER ESTABLISHES EITHER OF THE  AFFIR-
 MATIVE  DEFENSES  SET FORTH IN SUBDIVISION FIVE OF THIS SECTION AND THAT
 THE PETITIONER WAS WITHOUT PERSONAL OR ACTUAL KNOWLEDGE OF  THE  FORFEI-
 TURE  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.
   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.
   § 2. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.