§ 3388 — Seizure and forfeiture of vehicles, vessels or aircraft unlawfully used to conceal, convey or transport controlled substances

§ 3388. Seizure and forfeiture of vehicles, vessels or aircraft\nunlawfully used to conceal, convey or transport controlled substances.\n1. Except as authorized in this article, it shall be unlawful to:\n (a) transport, carry, or convey any controlled substance in, upon, or\nby means of any vehicle, vessel or aircraft; or\n (b) conceal or possess any controlled substance in or upon any\nvehicle, vessel or aircraft, or upon the person of anyone in or upon any\nvehicle, vessel or aircraft; or\n (c) use any vehicle, vessel or aircraft to facilitate the\ntransportation, carriage, conveyance, concealment, receipt, possession,\npurchase, or sale of any controlled substance.\n 2. Any vehicle, vessel or aircraft which has been or is being used in\nviolation of subdivision one, except a vehicle, vessel or aircraft used\nby any person as a common carrier in the transaction of business as such\ncommon carrier shall be seized by any peace officer, acting pursuant to\nhis special duties, or police officer, and forfeited as hereinafter in\nthis section provided. A vehicle, vessel or aircraft is not subject to\nforfeiture unless used in connection with acts or conduct which would\nconstitute a felony under article 220 of the penal law.\n 3. The seized property shall be delivered by the officer having made\nthe seizure to the custody of the district attorney of the county\nwherein the seizure was made, except that in the cities of New York,\nYonkers, Rochester and Buffalo the seized property shall be delivered to\nthe custody of the police department of such cities and such property\nseized by a member or members of the state police shall be delivered to\nthe custody of the superintendent of state police, together with a\nreport of all the facts and circumstances of the seizure.\n 4. It shall be the duty of the attorney general in seizures by members\nof the state police, otherwise it shall be the duty of the district\nattorney of the county wherein the seizure is made, if elsewhere than in\nthe cities of New York, Yonkers, Rochester or Buffalo, and where the\nseizure is made in such cities it shall be the duty of the corporation\ncounsel of the city, to inquire into the facts of the seizure so\nreported to him and if it appears probable that a forfeiture has been\nincurred by reason of a violation of this section, for the determination\nof which the institution of proceedings in the supreme court is\nnecessary, to cause the proper proceedings to be commenced and\nprosecuted, not later than twenty days after written demand by a person\nclaiming ownership thereof, to declare such forfeiture, unless, upon\ninquiry and examination, such district attorney, attorney general or\ncorporation counsel decides that such proceedings cannot probably be\nsustained or that the ends of public justice do not require that they\nshould be instituted or prosecuted, in which case, the district\nattorney, the attorney general or corporation counsel shall cause such\nseized property to be returned to the owner thereof. The procedure for\nproceedings instituted under this section shall conform as much as\npossible to the procedure for attachment.\n 5. Notice of the institution of the forfeiture proceeding shall be\nserved either:\n (a) personally on the owners of the seized property; or\n (b) by registered mail to the owners' last known address and by\npublication of the notice once a week for two successive weeks in a\nnewspaper published or circulated in the county wherein the seizure was\nmade.\n 6. Forfeiture shall not be adjudged where the owners establish by\npreponderance of the evidence that:\n (a) the use of such seized property, in violation of subdivision one\nof this section, was not intentional on the part of any owner; or\n (b) said seized property was used in violation of subdivision one of\nthis section by any person other than an owner thereof, while such\nseized property was unlawfully in the possession of a person who\nacquired possession thereof in violation of the criminal laws of the\nUnited States, or of any state.\n 7. The district attorney, the superintendent of state police or the\npolice department having custody of the seized property, after such\njudicial determination of forfeiture, shall, at their discretion, either\nretain such seized property for the official use of their office,\ndivision or department, or, by a public notice of at least five days,\nsell such forfeited property at public sale; provided, however, that\nwhere such property is subject to a perfected lien such property may not\nbe retained for their official use unless all such liens on the property\nto be retained have been or will be satisfied. The net proceeds of any\nsuch sale, after deduction of the lawful expenses incurred, shall be\npaid into the general fund of the county wherein the seizure was made\nexcept that the net proceeds of the sale of property seized in the\ncities of New York, Yonkers, Rochester and Buffalo shall be paid into\nthe respective general funds of such cities, and of the sale of property\nseized by the state police into the general fund of the state.\n 8. Whenever any person interested in any property which is seized and\ndeclared forfeited under the provisions of this section files with a\njustice of the supreme court a petition for the recovery of such\nforfeited property, the justice of the supreme court may restore said\nforfeited property upon such terms and conditions as he deems reasonable\nand just, if the petitioner establishes either of the affirmative\ndefenses set forth in subdivision six of this section and that the\npetitioner was without personal or actual knowledge of the forfeiture\nproceeding. If the petition be filed after the sale of the forfeited\nproperty, any judgment in favor of the petitioner shall be limited to\nthe net proceeds of such sale, after deduction of the lawful expenses\nand costs incurred by the district attorney, police department or\ncorporation counsel.\n 9. No suit or action under this section for wrongful seizure shall be\ninstituted unless such suit or action is commenced within two years\nafter the time when the property was seized.\n