As used in this article, the following terms shall have the
meanings indicated:
CLAIMING AUTHORITY
The District Attorney, or his or her designee, and/or the
County Attorney, or his or her designee.
INSTRUMENTALITY OF AN OFFENSE
Any property whose use contributed directly and materially
to the commission of an offense as defined in this article.
OFFENSE
A violation of New York Vehicle and Traffic Law § 1192, Operating a motor vehicle under the influence of alcohol or drugs, Subdivision 2, 2-a, 3, 4, or 4-a, or § 1192-a, Operating a motor vehicle after having consumed alcohol; under the age of 21; per se, or § 1212, Reckless driving; or a violation of New York Navigation Law §
49-a, Operation of a vessel while under the influence of alcohol or drugs.
[Amended 11-20-2007 by L.L. No. 32-2007; 6-24-2008 by L.L. No.
26-2008]
OUTSIDE LAW ENFORCEMENT AGENCY
Any town or village law enforcement agency located in the
County of Suffolk that is not part of the Suffolk County Police District.
[Added 10-17-2006 by L.L. No. 55-2006]
PROPERTY
Vehicles, airplanes, boats, vessels, or any personal thing
of value or any interest in a thing of value, but shall not include
real property or any buildings, fixtures, appurtenances and improvements
thereon.
[Amended 11-20-2007 by L.L. No. 32-2007; 6-24-2008 by L.L. No.
26-2008; 11-18-2008 by L.L. No. 48-2008]
A. A civil action shall be commenced by the claiming authority, or its designees, against a defendant to forfeit seized property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense or to recover a money judgment in an amount equivalent in value to the property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense, if it can be demonstrated that the property was seized in connection with the acts of an individual who has been convicted at least once before of any of the following violations of New York Vehicle and Traffic Law § 1192(2), (2-a), (3), (4) or (4-a), §
49-a of the New York Navigation Law or having been found guilty of violating § 1192-a of the New York Vehicle and Traffic Law, except that:
(1) No property used by any person as a common carrier in the transaction
of business as a common carrier shall be forfeited under the provisions
of this subsection unless it shall appear that the owner or agent
of the owner was a consenting party or privy to the commission of
the offense as described in this article; and
(2) No property shall be forfeited under the provisions of this subsection
by reason of any act or omission established by the owner thereof
to have been committed or omitted by any person other than the owner
while the subject property was unlawfully in the possession of a person
other than the owner.
B. A civil action shall be commenced by the claiming authority, or its designee, against a defendant to seize and to forfeit property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense, or to recover a money judgment in an amount equivalent in value to the property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense, if it can be demonstrated that the property is to be seized in connection with the action of an individual who has been convicted at least once before of any of the following violations of New York Vehicle and Traffic Law § 1192(2), (2-a), (3), (4) or (4-a), or §
49-a of the New York Navigation Law or having been found guilty of § 1192-a of the New York Vehicle and Traffic Law, except that:
(1) No property used by any person as a common carrier in the transaction
of business as a common carrier shall be forfeited under the provision
of this subsection unless it shall appear that the owner or agent
of the owner was a consenting party or privy to the commission of
the offense as described in this article; and
(2) No property shall be forfeited under the provisions of this subsection
by reason of any act or omission established by the owner thereof
to have been committed or omitted by any person other than the owner
while the subject property was unlawfully in the possession of a person
other than the owner.
C. A civil action shall be commenced by the claiming authority, or its
designee, against a defendant to forfeit seized property which constitutes
the proceeds of an offense, the substituted proceeds of an offense,
or an instrumentality of an offense or to recover a money judgment
in an amount equivalent in value to the property which constitutes
the proceeds of an offense, the substituted proceeds of an offense,
or an instrumentality of an offense, if it can be demonstrated that
the property was seized in connection with the acts of an individual
who has been convicted at least once before of a violation of New
York Vehicle and Traffic Law § 1212, except that:
(1) No property used by any person as a common carrier in the transaction
of business as a common carrier shall be forfeited under the provisions
of this subsection unless it shall appear that the owner or agent
of the owner was a consenting party or privy to the commission of
the offense as described in this article; and
(2) No property shall be forfeited under the provisions of this subsection
by reason of any act or omission established by the owner thereof
to have been committed or omitted by any person other than the owner
while the subject property was unlawfully in the possession of a person
other than the owner.
D. A civil action shall be commenced by the claiming authority, or its
designee, against a defendant to seize and to forfeit property which
constitutes the proceeds of an offense, the substituted proceeds of
an offense, or an instrumentality of an offense, or to recover a money
judgment in an amount equivalent in value to the property which constitutes
the proceeds of an offense, the substituted proceeds of an offense,
or an instrumentality of an offense, if it can be demonstrated that
the property is to be seized in connection with the action of an individual
who has been convicted at least once before of a violation of New
York Vehicle and Traffic Law § 1212, except that:
(1) No property used by any person as a common carrier in the transaction
of business as a common carrier shall be forfeited under the provisions
of this subsection unless it shall appear that the owner or agent
of the owner was a consenting party or privy to the commission of
the offense as described in this article; and
(2) No property shall be forfeited under the provisions of this subsection
by reason of any act or omission established by the owner thereof
to have been committed or omitted by any person other than the owner
while the subject property was unlawfully in the possession of a person
other than the owner.
E. A civil action may also be commenced against a noncriminal defendant to recover the property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense, subject to the same exceptions contained in Subsections
A and
B of this section.
F. All actions commenced under this article shall be governed by the
procedures enumerated in Article 13-A of the New York Civil Practice
Law and Rules, where not specifically outlined herein.
G. No property shall be forfeited under this article unless the claiming
authority produces clear and convincing evidence that the noncriminal
defendant engaged in affirmative acts which aided, abetted or facilitated
the conduct of the criminal defendant. The noncriminal defendant must
take all prudent steps to prevent the illegal use of his or her property,
and willful disregard by the owner or lienholder of the acts giving
rise to forfeiture shall not constitute a defense to such forfeiture.
H. Any action to forfeit seized property under Subsection
A of this section shall be commenced within 180 days after the seizure when the property has first been seized under §
420-6 of this article and within 180 days after the commission of the offense when the property has not been first seized under §
420-6, and said action shall be civil, remedial, and in rem in nature and shall not be deemed to be a penalty or criminal forfeiture for any purpose. An action under this article shall not be deemed a criminal proceeding of any type. The action shall be commenced in the manner prescribed by New York Civil Practice Law and Rules § 304. Potential claimants to the seized asset shall be served with a summons and notice or summons and verified complaint. No property as defined in §
420-5 of this article shall be forfeited without service of notice upon potential claimants to the seized asset and the opportunity for a prompt post-seizure hearing given prior to such forfeiture.
I. Once a civil action for forfeiture has been commenced pursuant to
this section, the claiming authority shall notify victims and parents,
spouses, siblings, or children of any individual who has been physically
injured as a result of the offensive actions of an individual which
have precipitated such seizure and forfeiture proceeding as to the
time and place of said court forfeiture hearing.
J. In order to establish its case in any action commenced under this
article, the County shall demonstrate, by clear and convincing evidence,
that the property in question is subject to forfeiture at the time
of commission of the offense, as defined in this article, which precipitated
the seizure or the commencement of an action for the seizure of the
property without regard to the final determination of any criminal
actions brought against the individual for such offense. The noncriminal
defendant shall then have the burden of proving a lack of knowledge
or lack of consent on behalf of said noncriminal defendant sufficient
to constitute a defense to such forfeiture.
K. If, after a seizure of property has been made under §
420-6 of this article, it is determined that the noncriminal defendant of the property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense, or the individual whose criminal actions precipitated the seizure, has not been previously convicted at least once of a violation of New York Vehicle and Traffic Law § 1192(2), (2-a), (3), (4) or (4-a) or §
49-a of the New York Navigation Law or having been found guilty of violating § 1192-a or 1212 of the New York Vehicle and Traffic Law, then the property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense so seized shall immediately be returned to its lawful owner as of the time of seizure.
L. All property seized pursuant to this article is subject to reasonable
and customary towing, maintenance and daily storage fees as may be
established by the Suffolk County Police Commissioner. Such fees shall
be payable to the seizing agent prior to the release of said property.
The District Attorney and/or the County Attorney shall issue
and promulgate such rules and regulations as shall be necessary to
implement the provisions of this article.