NY Tax L § 1847 (2021)
2021 New York Laws TAX - Tax Article 37 - Crimes and Other Offenses, Seizures and Forfeitures Part 6 - Seizures and Forfeitures 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 To

§  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.