§ 511-C — Seizure and forfeiture of vehicles used in the unlicensed operation of a motor vehicle under certain circumstances

§ 511-c. Seizure and forfeiture of vehicles used in the unlicensed\noperation of a motor vehicle under certain circumstances. 1. For\npurposes of this section:\n (a) The term "owner" shall mean an owner as defined in section one\nhundred twenty-eight and in subdivision three of section three hundred\neighty-eight of this chapter.\n (b) The term "security interest" shall mean a security interest as\ndefined in subdivision (k) of section two thousand one hundred one of\nthis chapter.\n (c) The term "termination of the criminal proceeding" shall mean the\nearliest of (i) thirty-one days following the imposition of sentence; or\n(ii) the date of acquittal of a person arrested for an offense; or (iii)\nwhere leave to file new charges or to resubmit the case to a new grand\njury is required and has not been granted, thirty-one days following the\ndismissal of the last accusatory instrument filed in the case, or, if\napplicable, upon expiration of the time granted by the court or\npermitted by statute for filing new charges or resubmitting the case to\na new grand jury; or (iv) where leave to file new charges or to resubmit\nthe case to a new grand jury is not required, thirty-one days following\nthe dismissal of the last accusatory instrument filed in the case, or,\nif applicable, upon expiration of the time granted by the court or\npermitted by statute for filing new charges or resubmitting the case to\na new grand jury; or (v) six months from the issuance of an "adjournment\nin contemplation of dismissal" order pursuant to section 170.55 of the\ncriminal procedure law, where the case is not restored to the court's\ncalendar within the applicable six-month period; or (vi) the date when,\nprior to the filing of an accusatory instrument against a person\narrested for an offense, the prosecuting authority elects not to\nprosecute such person.\n 2. Any motor vehicle which has been or is being used in violation of\nparagraph (a) of subdivision three of section five hundred eleven of\nthis article may be seized by any peace officer, acting pursuant to his\nor her special duties, or police officer, and forfeited as hereinafter\nprovided in this section.\n 3. A vehicle may be seized upon service of a notice of violation upon\nthe owner or operator of a vehicle. The seized motor vehicle shall be\ndelivered by the officer having made the seizure to the custody of the\ndistrict attorney of the county wherein the seizure was made, except\nthat in the cities of New York, Yonkers, Rochester and Buffalo the\nseized motor vehicle shall be delivered to the custody of the police\ndepartment of such cities and such motor vehicle seized by a member or\nmembers of the state police shall be delivered to the custody of the\nsuperintendent of state police, together with a report of all the facts\nand circumstances of the seizure. Within one business day after the\nseizure, notice of such violation and a copy of the notice of violation\nshall be mailed to the owner of such vehicle at the address for such\nowner set forth in the records maintained by the department of motor\nvehicles or, for vehicles not registered in New York state, such\nequivalent record in such state of registration.\n 4. (a) The attorney general in seizures by members of the state\npolice, or the district attorney of the county wherein the seizure is\nmade, if elsewhere than in the cities of New York, Yonkers, Rochester or\nBuffalo, or where the seizure is made in such cities, the corporation\ncounsel of the city shall inquire into the facts of the seizure so\nreported to him or her. If it appears that there is a basis for the\ncommencement and prosecution of a forfeiture proceeding pursuant to this\nsection, any such forfeiture proceeding shall be commenced in supreme\ncourt not later than twenty days after the date of receipt of a written\ndemand by a person claiming ownership of the motor vehicle accompanied\nby the documentation required to be presented upon release of the\nvehicle pursuant to subparagraphs (i), (ii), and (iv) of paragraph (a)\nof subdivision five of this section.\n (b) Where forfeiture proceedings are commenced and prosecuted pursuant\nto this section, the motor vehicle which is the subject of such\nproceedings shall remain in the custody of such district attorney,\npolice department or superintendent of state police, as applicable,\npending the final determination of such proceedings.\n (c) To the extent applicable, the procedures of article thirteen-A of\nthe civil practice law and rules shall govern proceedings and actions\nunder this section.\n 5. A motor vehicle seized pursuant to this section shall be released\nwhen:\n (a) (i) Such attorney general, district attorney or corporation\ncounsel has made a determination not to institute forfeiture proceedings\npursuant to this section or the time period within which a forfeiture\nproceeding could have been commenced pursuant to this section has\nelapsed and no such forfeiture proceeding was commenced or the criminal\nproceeding has been terminated in favor of the accused, as defined in\nsubdivision three of section 160.50 of the criminal procedure law; and\n (ii) The person seeking to claim the motor vehicle has furnished\nsatisfactory evidence of registration and financial security and, if the\nperson was the operator of the vehicle at the time of the violation of\nparagraph (a) of subdivision three of section five hundred eleven of\nthis article, satisfactory evidence of payment of any fines or penalties\nimposed in connection therewith; and\n (iii) Payment has been made for the reasonable costs of removal and\nstorage of the motor vehicle. The owner of the motor vehicle shall be\nresponsible for such payment provided, however, that if he or she was\nnot the operator at the time of the offense, such person shall have a\ncause of action against such operator to recover such costs. Payment\nprior to release of the motor vehicle shall not be required in cases\nwhere the seized motor vehicle was stolen or rented or leased pursuant\nto a written agreement for a period of thirty days or less, however the\noperator of such a motor vehicle shall be liable for the costs of\nremoval and storage of the motor vehicle to any entity rendering such\nservice; and\n (iv) If the motor vehicle is held as evidence, the person seeking to\nclaim the motor vehicle has presented a release from the prosecuting\nauthority providing that the motor vehicle is not needed as evidence.\n (b) (i) Pending completion of forfeiture proceedings which have been\ncommenced, the person seeking to claim the motor vehicle has posted a\nbond in a form satisfactory to such attorney general, district attorney\nor corporation counsel in an amount that shall not exceed an amount\nsufficient to cover the maximum fines or civil penalties which may be\nimposed for the violation underlying the seizure and all reasonable\ncosts for removal and storage of such vehicle; and\n (ii) The persons seeking to claim the motor vehicle has furnished\nsatisfactory evidence of registration and financial security.\n 6. Where a demand for the return of a motor vehicle is not made within\nninety days after the termination of the criminal proceeding founded\nupon the charge of aggravated unlicensed operation of a motor vehicle in\nthe first degree, such motor vehicle shall be deemed to be abandoned.\nSuch vehicle shall be disposed of by the county, cities of New York,\nYonkers, Rochester or Buffalo or the state, as applicable, in accordance\nwith section twelve hundred twenty-four of this chapter or as otherwise\nprovided by law.\n 7. Notice of the institution of the forfeiture proceeding shall be\nserved:\n (a) By personal service pursuant to the civil practice law and rules\nupon all owners of the seized motor vehicle listed in the records\nmaintained by the department, or for vehicles not registered in New York\nstate, in the records maintained by the state of registration; and\n (b) By first class mail upon all individuals who have notified such\nattorney general, district attorney or corporation counsel that they are\nan owner of the vehicle and upon all persons holding a security interest\nin such motor vehicle which security interest has been filed with the\ndepartment pursuant to the provisions of title ten of this chapter, at\nthe address set forth in the records of such department, or for motor\nvehicles not registered in New York state, all persons holding a\nsecurity interest in such motor vehicle which security interest has been\nfiled with such state of registration, at the address provided by such\nstate of registration.\n 8. Any owner who receives notice of the institution of a forfeiture\naction who claims an interest in the motor vehicle subject to forfeiture\nshall assert a claim for the recovery of the motor vehicle or\nsatisfaction of the owner's interest in such motor vehicle by\nintervening in the forfeiture action in accordance with subdivision (a)\nof section one thousand twelve of the civil practice law and rules. Any\nperson with a security interest in such vehicle who receives notice of\nthe institution of the forfeiture action shall assert a claim for the\nsatisfaction of such person's security interest in such vehicle by\nintervening in the forfeiture action in accordance with subdivision (a)\nof section one thousand twelve of the civil practice law and rules. If\nthe action relates to a vehicle in which a person holding a security\ninterest has intervened pursuant to this subdivision, the burden shall\nbe upon the designated official to prove by clear and convincing\nevidence that such intervenor knew that such vehicle was or would be\nused for the commission of a violation of subparagraph (ii) of paragraph\n(a) of subdivision three of section five hundred eleven of the vehicle\nand traffic law and either (a) knowingly and unlawfully benefitted from\nsuch conduct or (b) voluntarily agreed to the use of the vehicle for the\ncommission of such violation by consent freely given. For purposes of\nthis subdivision, such intervenor knowingly and unlawfully benefited\nfrom the commission of such violation when he or she derived in exchange\nfor permitting the use of such vehicle by a person or persons committing\nsuch specified violation a substantial benefit that would otherwise not\nhave accrued as a result of the lawful use of such vehicle. "Benefit"\nmeans benefit as defined in subdivision seventeen of section 10.00 of\nthe penal law.\n 9. No motor vehicle shall be forfeited under this section to the\nextent of the interest of a person who claims an interest in the motor\nvehicle, where such person pleads and proves that:\n (a) The use of such motor vehicle for the conduct that was the basis\nfor a seizure occurred without the knowledge of such person, or if such\nperson had knowledge of such use, without the consent of such person,\nand that such person did not knowingly obtain such interest in the motor\nvehicle in order to avoid the forfeiture of such vehicle; or\n (b) The conduct that was the basis for such seizure was committed by\nany person other than such person claiming an interest in the motor\nvehicle, while such motor vehicle was unlawfully in the possession of a\nperson who acquired possession thereof in violation of the criminal laws\nof the United States or any state.\n 10. The court in which a forfeiture action is pending may dismiss said\naction in the interests of justice upon its own motion or upon an\napplication as provided for herein.\n (a) At any time during the pendency of a forfeiture action, the\ndesignated official who instituted the action, or a defendant may apply\nfor an order dismissing the complaint and terminating the forfeiture\naction in the interest of justice.\n (b) Such application for the relief provided in paragraph (a) of this\nsubdivision must be made in writing and upon notice to all parties. The\ncourt may, in its discretion, direct that notice be given to any other\nperson having an interest in the property.\n (c) An application for the relief provided for in paragraph (a) of\nthis subdivision must be brought exclusively in the superior court in\nwhich the forfeiture action is pending.\n (d) The court may grant the relief provided in paragraph (a) of this\nsubdivision if it finds that such relief is warranted by the existence\nof some compelling factor, consideration or circumstance demonstrating\nthat forfeiture of the property or any part thereof, would not serve the\nends of justice. Among the factors, considerations and circumstances the\ncourt may consider, among others, are:\n (i) the seriousness and circumstances of the crime to which the\nproperty is connected relative to the impact of forfeiture of property\nupon the person who committed the crime; or\n (ii) the adverse impact of a forfeiture of property upon innocent\npersons.\n (e) The court must issue a written decision stating the basis for an\norder issued pursuant to this subdivision.\n 11. The district attorney, police department or superintendent of\nstate police having custody of the seized motor vehicle, after such\njudicial determination of forfeiture, shall, by a public notice of at\nleast twenty days, sell such forfeited motor vehicle at public sale. The\nnet proceeds of any such sale, after deduction of the lawful expenses\nincurred, shall be paid into the general fund of the county wherein the\nseizure was made, provided, however, that the net proceeds of the sale\nof a motor vehicle seized in the cities of New York, Yonkers, Rochester\nand Buffalo shall be paid into the respective general funds of such\ncities, and provided further that the net proceeds of the sale of a\nmotor vehicle seized by the state police shall be paid into the state\npolice seized assets account.\n 12. In any action commenced pursuant to this section, where the court\nawards a sum of money to one or more persons in satisfaction of such\nperson's or persons' interest or interests in the forfeited motor\nvehicle, the total amount awarded to satisfy such interest or interests\nshall not exceed the amount of the net proceeds of the sale of the\nforfeited motor vehicle, after deduction of the lawful expenses incurred\nby the county, cities of New York, Yonkers, Rochester or Buffalo or the\nstate, as applicable, and storage of the motor vehicle between the time\nof seizure and the date of sale.\n 13. At any time within two years after the seizure, any person\nclaiming an interest in a motor vehicle which has been forfeited\npursuant to this section who was not sent notice of the commencement of\nthe forfeiture action pursuant to subdivision seven of this section, or\nwho did not otherwise receive actual notice of the forfeiture action,\nmay assert in an action commenced before the justice of the supreme\ncourt before whom the forfeiture action was held such claim as could\nhave been asserted in the forfeiture action pursuant to this section.\nThe court may grant the relief sought upon such terms and conditions as\nit deems reasonable and just if the person claiming an interest in the\nmotor vehicle establishes that he or she was not sent notice of the\ncommencement of the forfeiture action and was without actual knowledge\nof the forfeiture action, and establishes either of the affirmative\ndefenses set forth in subdivision nine of this section.\n 14. No action under this section for wrongful seizure shall be\ninstituted unless such action is commenced within two years after the\ntime when the motor vehicle was seized.\n