NY Tax L § 1845 (2021)
2021 New York Laws TAX - Tax Article 37 - Crimes and Other Offenses, Seizures and Forfeitures Part 6 - Seizures and Forfeitures 1845 - Forfeiture Action With Respect to Alcoholic Beverages and Vehicles Carrying Such Beverages.

§  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.