§ 1847 — Seizure and forfeiture of vehicles or other means of transportation used to transport or for deposit or concealment of cigarettes or used...

§ 1847. Seizure and forfeiture of vehicles or other means of\ntransportation used to transport or for deposit or concealment of\ncigarettes or used to import tobacco products. (a) Any peace officer\ndesignated in subdivision four or five of section 2.10 of the criminal\nprocedure law, acting pursuant to his or her special duties, or any\npolice officer designated in section 1.20 of the criminal procedure law\nmay seize any vehicle or other means of transportation used to transport\nor for the deposit or concealment of more than one hundred unstamped or\nunlawfully stamped packages of cigarettes subject to tax under article\ntwenty of this chapter or by chapter thirteen of title eleven of the\nadministrative code of the city of New York, other than a vehicle or\nother means of transportation used by any person as a common carrier in\ntransaction of business as such common carrier, and such vehicle or\nother means of transportation shall be subject to forfeiture as\nhereinafter in this section provided.\n (b) Any peace officer designated in subdivision four of section 2.10\nof the criminal procedure law, acting pursuant to his special duties, or\nany police officer designated in section 1.20 of the criminal procedure\nlaw may seize any vehicle or other means of transportation used to\nimport tobacco products in excess of five hundred cigars or ten pounds\nof tobacco for sale where the person importing or causing such tobacco\nproducts to be imported has not been appointed a distributor pursuant to\nsection four hundred seventy-two of this chapter, other than a vehicle\nor other means of transportation used by any person as a common carrier\nin transaction of business as such common carrier, and such vehicle or\nother means of transportation shall be subject to forfeiture as\nhereinafter in this section provided.\n (c) 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 city of New York,\nYonkers or Buffalo, the seized property shall be delivered to the\ncustody of the police department of such city, together with a report of\nall the facts and circumstances of the seizure.\n (d) It shall be the duty of the district attorney of the county\nwherein the seizure was made, if elsewhere than in the city of New York,\nYonkers or Buffalo, and where the seizure is made in any of such cities\nit shall be the duty of the corporation counsel of the city, to inquire\ninto the facts of the seizure so reported to him and if it appears\nprobable that a forfeiture has been incurred, for the determination of\nwhich the institution of proceedings in the supreme court is necessary,\nto cause the proper proceedings to be commenced and prosecuted, at any\ntime after thirty days from the date of seizure, to declare such\nforfeiture, unless, upon inquiry and examination such district attorney\nor corporation 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 attorney\nor corporation counsel shall cause such seized property to be returned\nto the owner thereof.\n (e) Notice of the institution of the forfeiture proceeding shall be\nserved either (i) personally on the owners of the seized property or\n(ii) 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 (f) Forfeiture shall not be adjudged where the owners establish by a\npreponderance of the evidence that (i) the use of such seized property\nwas not intentional on the part of any owner, (ii) said seized property\nwas used by any person other than an owner thereof, while such seized\nproperty was unlawfully in the possession of a person who acquired\npossession thereof in violation of the criminal laws of the United\nStates, or of any state, or (iii) forfeiture is not warranted or would\nnot serve the ends of justice, taking into consideration the factors\nspecified in paragraph (d) of subdivision four of section thirteen\nhundred eleven of the civil practice law and rules.\n (g) The district attorney or the police department having custody of\nthe seized property, after such judicial determination of forfeiture,\nshall, at its discretion, either retain such seized property for the\nofficial use of its office or department, transfer such property to the\ndepartment of taxation and finance of the state of New York for its\nofficial use, or, upon publication of a notice to such effect for at\nleast five successive days, before the day of sale, in a newspaper\npublished or circulated in the county where the seizure was made, sell\nsuch forfeited property at public sale. The net proceeds of any such\nsale, after deduction of the lawful expenses incurred, shall be paid\ninto the general fund of the county wherein the seizure was made except\nthat the net proceeds of the sale of property seized in the city of New\nYork, Yonkers or Buffalo shall be paid into the general fund of such\ncity.\n (h) Whenever any property is seized and declared forfeited, any person\ninterested in any such property may apply to a justice of the supreme\ncourt, on serving a notice of petition and petition on the appropriate\ndistrict attorney, police department or corporation counsel, for the\nrecovery of such forfeited property. The justice of the supreme court to\nwhom such application is made may restore said forfeited property upon\nsuch terms as he deems reasonable and just, if the petitioner\nestablishes either of the affirmative defenses set forth in subdivision\n(f) of this section and that the petitioner was without personal or\nactual knowledge of the forfeiture proceeding. If the petition is filed\nafter the sale of the forfeited property, any judgment in favor of the\npetitioner shall be limited to the net proceeds of such sale, after\ndeduction of the lawful expenses and costs incurred by the district\nattorney, police department or corporation counsel.\n (i) 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