§ 1848 — Forfeiture action with respect to motor fuel and diesel motor fuel and vehicle carrying such fuel

New York § 1848

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

Text

§ 1848. Forfeiture action with respect to motor fuel and diesel motor\nfuel and vehicle carrying such fuel.\n (a) Temporary seizure. Whenever a police officer designated in section\n1.20 of the criminal procedure law or a peace officer designated in\nsubdivision four of section 2.10 of such law, acting pursuant to his\nspecial duties, shall discover any motor fuel or diesel motor fuel which\nis being imported for use, distribution, storage or sale in the state\nwhere the person importing or causing such motor fuel or diesel motor\nfuel to be imported is not registered as a distributor under section two\nhundred eighty-three or section two hundred eighty-two-a, of this\nchapter, as the case may be, such police officer or peace officer is\nhereby authorized to seize and take possession of such motor fuel or\ndiesel motor fuel, together with the vehicle or other means of\ntransportation used to transport such motor fuel.\n (b) Retention of property. The department shall hold and safely keep\nsuch motor fuel, diesel motor fuel, vehicle or other means of\ntransportation seized pursuant to subdivision (a) of this section.\nSeized motor fuel or diesel motor fuel may be deposited to the credit of\nthe department at a terminal or other storage facility within the state\nor may be sold by the department on the open market.\n (c) Confirmation of temporary seizure. Within five business days after\nthe temporary seizure of motor fuel, diesel motor fuel, vehicle or other\nmeans of transportation pursuant to subdivision (a) of this section, the\ndepartment shall move in supreme court in any county, on such notice as\nthe court shall direct to the owners of the property, to confirm the\ntemporary seizure. If the department fails to make such motion within\nthe required period, such seized property shall be restored to the\nowners thereof as provided in subdivision (e) of this section. On a\nmotion for an order confirming the seizure, the department shall show,\nby affidavit and such other written evidence as may be submitted, that\nthere is a cause of action for forfeiture under subdivision (d) of this\nsection and that there are grounds for confirmation of the seizure. The\ndepartment shall include, in its motion papers, an inventory of all\nseized property. The court shall grant an application for an order\nconfirming the seizure when it determines that there is a substantial\nprobability that the department will 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 by service of a summons with notice or summons and\ncomplaint in accordance with the methods authorized by the civil\npractice law and rules or the business corporation law with respect to\npersonal service of a summons. Upon such terms as may be just and upon\ngood cause shown the court may extend the time, not exceeding thirty\ndays, within which the summons must be served, provided that the\napplication for extensions made before the expiration of the time fixed.\nIf the department fails to commence the forfeiture action within the\nrequired period, such seized property shall be restored to the owners\nthereof as provided 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 motor fuel or diesel motor fuel together with the\nvehicle or other means of transportation used to transport such motor\nfuel or diesel motor fuel shall be adjudged where the department proves,\nby clear and convincing evidence, that the person importing or causing\nsuch motor fuel or diesel motor fuel to be imported was not registered\nas a distributor under section two hundred eighty-three or section two\nhundred eighty-two-a of this chapter, as the case may be. All defendants\nin a forfeiture action brought pursuant to this article shall have the\nright 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 of taxation and finance or a defendant may apply for an order\ndismissing the complaint and terminating the forfeiture action in the\ninterest of justice.\n (B) Such application for the relief provided in subparagraph (A)\nhereof must be made in writing and upon notice to all parties. The court\nmay, in its discretion, 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) of\nthis paragraph if it finds that such relief is warranted by the\nexistence of some compelling factor, consideration or circumstance\ndemonstrating that forfeiture of the property or any part thereof, would\nnot serve the ends of justice. Reporting and payment of the tax imposed\npursuant to article twelve-A or article twenty-eight of this chapter\nwith respect to such motor fuel or diesel motor fuel subsequent to the\nseizure of such fuel 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 fuel have been reported and remitted to the state\nprior to the temporary seizure of such fuel if the unregistered\nimportation into the state was effected in good faith and without\nknowledge of the requirement of registration and without intent to evade\ntax. The court must issue a written decision, stating the basis for an\norder 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 of\ntaxation and finance, a court may, in the interest of justice and for\ngood cause, and with the consent of all parties, order that the\nforfeiture action proceed despite the pending criminal action; and\nprovided that such stay shall not prevent the granting or continuance of\nan order confirming the seizure provided under this section.\n (6) The total that may be recovered shall not exceed the value of the\nmotor fuel or diesel motor fuel seized and, in addition, either the\nvalue of the vehicle or other means of transportation used to transport\nsuch fuel or three times the amount of the tax and penalty under\narticles twelve-A, thirteen-A and twenty-eight and pursuant to the\nauthority of article twenty-nine of this chapter with respect to the\nmotor fuel or diesel motor fuel, 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,\nthen the department shall restore such seized motor fuel or diesel motor\nfuel, or motor fuel or diesel motor fuel of a like quantity and type, or\nsuch seized vehicle or other means of transportation to the owners\nthereof. Alternatively, if such seized motor fuel or diesel motor fuel\nhas been sold as provided in subdivision (b) of this section, the\ndepartment shall pay to the owners of such motor fuel or diesel motor\nfuel the proceeds of such sale or, if greater, an amount of money\nrepresenting the fair market value of the motor fuel or diesel motor\nfuel at the time of the seizure.\n (f) Release of property. A person whose property has been seized may\nmove, upon notice to the department of taxation and finance, in the\nsupreme court in any county, provided that if the department shall have\nmoved to confirm the temporary seizure of such property, in the supreme\ncourt of such county for an order releasing all or part of the property\nseized upon payment of the department's fees and expenses, if any. On\nsuch a motion, the defendant shall give an undertaking in accordance\nwith article twenty-five of the civil practice law and rules, in an\namount equal to the value of the property sought to be released, that he\nwill pay the department the value of such property which may be adjudged\nforfeited (but in the case of the owner of a vehicle or other means of\ntransportation, the amount of the undertaking required shall not exceed\nthree times the amount of all taxes and penalties due under articles\ntwelve-A, thirteen-A and twenty-eight and pursuant to the authority of\narticle twenty-nine of 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 motor fuel or diesel motor fuel as provided in\nsubdivision (b) of this section, after deduction of the lawful expenses\nincurred, shall be deposited and disposed of pursuant to the provisions\nof section one hundred seventy-one-a of this chapter with respect to\ndeposit and disposition of revenue.\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 of taxation and finance by\nthis section shall be in 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