§ 1845 — Forfeiture action with respect to alcoholic beverages and vehicles carrying such beverages

New York § 1845

• Jurisdiction: New York
• Law TAX: Tax
• Part 6: Seizures and Forfeitures
• Art. 37: Crimes and Other Offenses, Seizures and Forfeitures

Text

§ 1845. Forfeiture action with respect to alcoholic beverages and\nvehicles carrying such beverages. (a) Temporary seizure. Whenever a\npolice officer designated in section 1.20 of the criminal procedure law\nor a peace officer designated in subdivision four of section 2.10 of\nsuch law, acting pursuant to his special duties, shall discover more\nthan ninety liters of liquors which are being imported for sale or use\nin the state, where the person importing or causing such liquors to be\nimported is not registered as a distributor under section four hundred\ntwenty-one of this chapter, such police officer or peace officer is\nhereby authorized to seize and take possession of such liquors, and to\nseize and take possession of the vehicle or other means of\ntransportation used to transport such liquors.\n (b) Retention of property. The department shall hold and safely keep\nsuch liquors, vehicle or other means of transportation seized pursuant\nto subdivision (a) of this section. Seized liquors may be deposited to\nthe credit of the department at a storage facility within the state or\nmay be sold by the department.\n (c) Confirmation of temporary seizure. Within five business days after\nthe temporary seizure of liquors, vehicle or other means of\ntransportation pursuant to subdivision (a) of this section, the\ndepartment shall move in supreme court in the county where the temporary\nseizure occurred, on such notice as the court shall direct to the owners\nof the property, to confirm the temporary seizure. If the department\nfails to make such motion within the required period, such seized\nproperty shall be restored to the owners thereof as provided in\nsubdivision (e) of this section. On a motion for an order confirming the\nseizure, the department shall show, by affidavit and such other written\nevidence as may be submitted, that there is a cause of action for\nforfeiture under subdivision (d) of this section and that there are\ngrounds for confirmation of the seizure. The department shall include,\nin its motion papers, an inventory of all seized property. The court\nshall grant an application for an order confirming the seizure when it\ndetermines that there is a substantial probability that the department\nwill prevail on the issue of forfeiture.\n (d) Forfeiture action. (1) A forfeiture action shall be commenced\nwithin forty-five days from the date of the seizure. Such action shall\nbe commenced and service shall be made in accordance with the methods\nauthorized by the civil practice law and rules or the business\ncorporation law. Upon such terms as may be just and upon good cause\nshown, the court may extend the time, not exceeding thirty days, within\nwhich the summons must be served, provided that the application for\nextentions made before the expiration of the time fixed. If the\ndepartment fails to commence the forfeiture action within the required\nperiod, such seized property shall be restored to the owners thereof as\nprovided in subdivision (e) of this section.\n (2) A forfeiture action under this subdivision shall be commenced in\nsupreme court. The proper venue for trial of an action for forfeiture is\nthe county in which the temporary seizure authorized by subdivision (a)\nof this section occurred.\n (3) Forfeiture of liquors together with the vehicle or other means of\ntransportation used to transport such liquors shall be adjudged where\nthe department proves, by clear and convincing evidence, that the person\nimporting or causing such liquors to be imported was not registered as a\ndistributor under section four hundred twenty-one of this chapter. All\ndefendants in a forfeiture action brought pursuant to this article shall\nhave the right to trial by jury on any issue of fact.\n (4) The court in which a forfeiture action is pending may dismiss said\naction in the interests of justice upon an application as provided for\nherein.\n (A) At any time during the pendency of a forfeiture action, the\ndepartment or a defendant may apply for an order dismissing the\ncomplaint and terminating the forfeiture action in the interest of\njustice.\n (B) Such application for relief provided in subparagraph (a) hereof\nmust be made in writing and upon notice to all parties. The court, in\nits discretion, may direct that notice be given to any other person\nhaving an interest in the property.\n (C) An application for the relief provided for in subparagraph (A)\nhereof must be brought exclusively in the supreme court in the county in\nwhich the forfeiture action is pending.\n (D) The court may grant the relief provided in subparagraph (A) hereof\nif it finds that such relief is warranted by the existence of some\ncompelling factor, consideration or circumstance demonstrating that\nforfeiture of the property or any part thereof, would not serve the ends\nof justice. Reporting and payment of the tax imposed by or pursuant to\narticle eighteen of this chapter with respect to such liquors subsequent\nto the seizure of such liquors shall not constitute a compelling factor,\nconsideration or circumstance warranting the granting of the relief\nprovided for in subparagraph (A) of this paragraph. In determining\nwhether such relief is warranted by the existence of some compelling\nfactor, consideration or circumstances pursuant to this paragraph, the\ncourt may, however, take into account the fact that such taxes with\nrespect to the seized liquors have been reported and remitted to the\nstate prior to the temporary seizure of such liquors if such\nunregistered importation into the state was effected in good faith and\nwithout knowledge of the requirement of registration and without intent\nto evade tax. The court must issue a written decision, stating the basis\nfor an order issued pursuant to this paragraph.\n (5) An action under this subdivision shall be stayed during the\npendency of a criminal action which is related to it; provided, that\nupon motion of a defendant in the forfeiture action or the department, a\ncourt may, in the interest of justice and for good cause, and with the\nconsent of all parties, order that the forfeiture action proceed despite\nthe pending criminal action; and provided that such stay shall not\nprevent the granting or continuance of an order confirming the seizure\nprovided under this section.\n (6) The total that may be recovered shall not exceed the value of the\nliquors seized and, in addition, either the value of the vehicle or\nother means of transportation used to transport such liquors or three\ntimes the amount of the tax, interest and penalty under article eighteen\nof this chapter with respect to the liquors, whichever is less.\n (e) Return of property. If (1) the department fails to move for\nconfirmation of the seizure pursuant to subdivision (c) of this section\nor (2) a court denies an application for an order confirming the seizure\nor (3) judgment is entered against the department in the forfeiture\naction and that judgment is affirmed after all appeals are exhausted or\nthe time within which to appeal has expired, then the department shall\nrestore such seized liquors, or liquors of a like quantity and type, or\nsuch seized vehicle or other means of transportation to the owners\nthereof. Alternatively, if such seized liquors have been sold as\nprovided in subdivision (b) of this section, the department shall pay to\nthe owners of such liquors the proceeds of such sale or, if greater, an\namount of money representing the fair market value of the liquors at the\ntime of the seizure.\n (f) Release of property. A person whose property has been seized may\nmove, upon notice to the commissioner, in the supreme court in the\ncounty in which the temporary seizure occurred, for an order releasing\nall or part of the property seized upon payment of the department's\nreasonable fees and expenses, if any. On such a motion, the defendant\nshall give an undertaking in accordance with article twenty-five of the\ncivil practice law and rules, in an amount equal to the value of the\nproperty sought to be released, that defendant will pay the department\nthe value of such property which may be adjudged forfeited (but in the\ncase of the owner of a vehicle or other means of transportation, the\namount of the undertaking required shall not exceed three times the\namount of all taxes, interest and penalties due under article eighteen\nof this chapter).\n (g) Disposal of property. The department, after a judicial\ndetermination of forfeiture, shall, in its discretion, either retain\nsuch seized property for its official use or sell such forfeited\nproperty at public sale. The net proceeds of any such sale, or of any\nsale of seized liquors as provided in subdivision (b) of this section,\nafter deduction of the lawful expenses incurred, shall be deposited and\ndisposed of pursuant to the provisions of section one hundred\nseventy-one-a of this chapter with respect to deposit and disposition of\nrevenue.\n (h) Wrongful seizure. A defendant in a forfeiture action may recover\nin an action for wrongful seizure all costs and damages, including\nreasonable attorneys' fees, which may be sustained by reason of the\nseizure if the defendant recovers judgment in the forfeiture action, or\nif it is finally decided that there was no justification for the\nseizure. In order to establish a claim for wrongful seizure, the\ndefendant must establish by a preponderance of the evidence that the\nseizure was made without reasonable cause and not in good faith. An\naction for wrongful seizure under this subdivision shall be the\ndefendant's exclusive remedy in connection with seizures made under this\nsection. No suit or action for wrongful seizure under this section shall\nbe instituted unless such suit or action is commenced within two years\nafter the time when the property was seized.\n (i) The remedies provided to the department by this section shall be\nin addition to any other remedies provided by law.\n (j) An action under this section is civil and remedial and shall not\nbe deemed to be a penalty or criminal forfeiture for any purpose. Except\nas otherwise provided by statute, the proceedings under this section\nshall be governed by the civil practice law and rules. An action under\nthis section is not a criminal proceeding and shall not be deemed to be\na previous prosecution under article forty of the criminal procedure\nlaw.\n (k) An additional ground for seizure and forfeiture under this section\nshall be where such police officer or peace officer shall discover more\nthan ninety liters of liquors in this state, with respect to which the\ntaxes imposed by or pursuant to article eighteen of this chapter have\nnot been paid or assumed by a person registered as a distributor\npursuant to such article, which are in the course of distribution in\nthis state or which are being sold in this state. All the foregoing\nsubdivisions of this section shall apply to the seizure and forfeiture\nof liquors referred to in this subdivision and the vehicle transporting\nthe same as if such foregoing subdivisions specifically referred to such\ngrounds and as if such grounds set forth in this subdivision were set\nforth as grounds for seizure in subdivision (a) hereof. Provided that in\nthe forfeiture action with respect to the liquors or vehicle referred to\nin this subdivision, the department shall be required to show that such\nliquors were found within the state and that they were in the course of\ndistribution in this state or were being sold in this state.\n (l) This section shall also apply to a forfeiture action with respect\nto the importation of more than ninety liters of liquors into a city\nimposing a tax pursuant to the authority of section four hundred\nforty-five of this chapter by a person not registered as a distributor\nfor purposes of such tax or, in addition, with respect to the\ndistribution or sale of untaxed liquors in such city.\n