Suffolk County, NY
 
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Suffolk County Legislature as indicated in article histories. Amendments noted where applicable. Uncodified sections of local laws amending these provisions after 1990 are included at the end of this chapter.]
GENERAL REFERENCES
Child sex abuse hot-line service agencies — See Ch. 378.
Safe school zones — See Ch. 713.
Sex offenders — See Chs. 745 and 1122.
Child protection — See Ch. 880.
672a Uncod LL Pro
[Adopted 2-13-1985 by L.L. No. 2-1985 (Ch. 367 of the 1985 Code)]

§ 672-1 Legislative intent.

A. 
This Legislature hereby declares that the unobstructed display of sexual materials in the County of Suffolk, which portray obscene sexual performance, deviate sexual performance or simulated sexual conduct, poses a threat to the health, safety, morals and general welfare of the people of the County of Suffolk because it can encourage and promote antisocial behavior. It is further declared that the prominent display of such obscene materials in public areas poses an intrusion upon individual privacy and constitutes a threat to impressionable young people who are indiscriminately exposed to such material.
B. 
The purpose of this article is not to prohibit the sale of obscene material but to prevent the public's, especially children's, involuntary exposure to such materials in limited public settings.

§ 672-2 Definitions.

As used in this article, the following terms shall have the meanings indicated:
COMMISSIONER
The Commissioner of the Suffolk County Department of Consumer Affairs.
DEPARTMENT
The Suffolk County Department of Consumer Affairs.
DEVIATE SEXUAL INTERCOURSE
Sexual conduct between persons consisting of contact between the penis and the anus, the mouth and penis or the mouth and the vulva.
MATERIAL
Anything tangible which is capable of being used or adopted to arouse interest, whether through the medium of reading, observation, sound or in any other manner.
NUDITY
The showing of the human male or female genitals, pubic area or buttocks, with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple or the depiction of covered male genitals in a discernibly turgid state.
OBSCENE
Material which:
A. 
Considered as a whole, predominantly appeals to the prurient interest in sex of individuals;
B. 
Is patently offensive to prevailing standards in the adult community as a whole, with respect to what is suitable material; and
C. 
Considered as a whole, lacks serious literary, artistic, political and scientific value.
PERFORMANCE
Any visual representation exhibited before a person.
PERSON
Individuals; natural persons; partnerships; joint ventures; societies; associations; clubs; corporations; unincorporated groups of any members; officers, directors or stockholders or any kind of personal representative thereof, in any capacity, acting for himself or for any other person, under either personal appointment or pursuant to law.
PREMISES
Any public or quasi-public place, building or store where the public may enter.
PROPRIETOR
Any person who, as the owner, lessee or proprietor, has under his or its control any establishment, place or premises, in or at which material portraying obscene sexual performance is placed or kept for use or sale or on exhibition for the purpose of use or sale.
SADOMASOCHISTIC ABUSE
Flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
A. 
Contact between any part of the genitals of one person and the genitals, mouth or anus of another person.
B. 
Contact between a person's mouth, anus or genitals and the mouth, anus or genitals of an animal or fowl.
C. 
Manipulation of a person's genitals.
D. 
Actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse or lewd exhibition of the genitals.
E. 
Acts of masturbation, homosexuality, sexual intercourse or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person is a female, breasts.
F. 
Portrayals of nudity.
SIMULATED
The explicit depiction of any of the conduct set forth in the definition of "sexual performance" above which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals or buttocks.

§ 672-3 Prohibited display.

A. 
No proprietor shall, with knowledge of its character or content, display for use or sale, on any window, showcase, newsstand, display rack, wall, counter, door or similar public place, any written or pictorial material which depicts obscene sexual performance, unless such material shall be obscured from public view in such a manner as not to make it readily visible to the public, except as to the name or title of such material when on display.
B. 
Nothing contained herein shall preclude the storage of such material on premises as long as such stored material is not readily visible to patrons conducting routine, ordinary business in the proprietor's place of business.

§ 672-4 Rules and regulations.

The Commissioner is hereby authorized to issue and promulgate such rules and regulations as he may deem necessary to implement and carry out the provisions of this article.

§ 672-5 Penalties for offenses; enforcement.

A. 
Any person violating § 672-3 of this article shall be guilty of a violation, punishable by a civil fine of $100. The continuation of a violation of this article shall constitute, for each and every day the offense is continued, a separate and distinct offense hereunder.
B. 
This article shall be enforced by the Department.
[Adopted 8-24-2004 by L.L. No. 29-2004 (Ch. 388, Art. I, of the 1985 Code)]

§ 672-6 Legislative intent.

A. 
This Legislature hereby finds and determines that the use of children in the production of sexually explicit material, including photographs, films, videos, computer images, and other visual depictions, is a form of sexual abuse which can result in physical and psychological harm, or both.
B. 
This Legislature further finds and determines that child pornography is often used as part of a method of seducing other children into sexual activity.
C. 
This Legislature finds that when children are used in the production of child pornography, there is a permanent record of the victim's abuse, and its continuing existence causes the victims of sexual abuse continuing harm by haunting these children in future years.
D. 
Therefore, the purpose of this article is to establish the procedure to seize and forfeit property used by child pornographers in connection with the creation, possession, sale, or distribution of child pornography in the County of Suffolk.

§ 672-7 Definitions.

As used in this article, the following terms shall have the meanings indicated:
CLAIMING AUTHORITY
The County Attorney, or her or his designee.
INSTRUMENTALITY OF AN OFFENSE
Any property the use of which contributed directly and materially to the commission of an offense as defined in this article.
OFFENSE
A violation of any section of Article 263 of the Penal Law of the State of New York.
PROPERTY
Any vehicles, airplanes, boats, vessels, computers, equipment or any personal thing of value or any interest in a thing of value.
REAL PROPERTY
Includes land, buildings, fixtures, appurtenances, and improvements thereon.

§ 672-8 Procedure.

A. 
Warrantless seizures.
(1) 
Any property or real property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense shall be seized by any peace officer, acting pursuant to his or her special duties, or police officer upon probable cause to believe that an offense, as defined in this article, has been committed, and may be forfeited as hereinafter provided.
(2) 
Notice of seizure.
(a) 
The seizing agency shall send notification of the seizure of real property and the contents thereof to all owners as shown on the records contained in the office of the County Clerk, and, for motor vehicles, the contents thereof to all titled owners and/or registrants on file with the New York State Department of Motor Vehicles, by certified mail, return receipt requested, within five business days of the seizure. Such notification shall inform the recipient that there will be a hearing promptly scheduled before a neutral magistrate to determine whether probable cause existed for the defendant's warrantless arrest, whether the County is likely to succeed on the merits of the forfeiture action, whether retention is necessary to preserve the property from destruction or sale during the pendency of the forfeiture proceeding, and whether any other measures would better protect the County's interest during the proceedings, including, but not limited to, issuance of a restraining order prohibiting the sale, transfer, or loss of the property with imposition(s) of appropriate penalties for violation of said restraining order; and/or taking of a bond.
(b) 
When a hearing is held, a neutral magistrate shall review the documents supporting the arrest and any other relevant documents and take any testimony to determine whether the seizing agency has sustained its burden of proof as set forth herein. If the seizing agency has met its burden of proof, the neutral magistrate shall authorize the continued retention of the property by the seizing agency pending a judicial determination of any civil forfeiture action. Nothing herein shall be construed to preclude a party with a legal interest in the seized property from commencing an action or proceeding in a court of competent jurisdiction for its return.
(c) 
The Suffolk County Executive shall designate neutral magistrates to conduct hearings in accordance with this Subsection A(2).
(3) 
Any action for forfeiture shall be commenced, in the manner prescribed by the New York Civil Practice Law and Rules § 304, within 180 days after the seizure. Failure to commence such an action with 180 days after the seizure shall result in the immediate return of the property to its lawful owner as of the time of the seizure.
B. 
Civil authority.
(1) 
A civil action shall be commenced by the claiming authority, or its designees, against a defendant(s) 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 of violating any section of Article 263 of the Penal Law of New York State.
(a) 
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 without the consent or knowledge of the owner of the subject property;
(b) 
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
(c) 
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.
(2) 
A civil action shall be commenced by the claiming authority, or its designee against a defendant(s) 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 of violating any section of Article 263 of the Penal Law of New York State.
(a) 
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 without the consent or knowledge of the owner of the subject property;
(b) 
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
(c) 
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.
(3) 
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 Subsection B(1) and (2) of this section.
(4) 
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.
(5) 
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.
(6) 
Any action to forfeit seized property under Subsection B(1) of this section shall be commenced within 180 days after the seizure when the property has first been seized and within 180 days after the commission of the offense when the property has not been first seized, 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 the 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 herein 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.
(7) 
Once a civil action for forfeiture has been commenced pursuant to this section, the claiming authority shall notify victims and parents, or siblings, 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.
(8) 
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 herein, 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.
(9) 
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 and to the cost of maintaining real property as may be determined by the County Division of Real Estate. Such fees shall be payable to the seizing agent prior to the release of said property.
C. 
Disposition of forfeited assets and proceeds.
(1) 
Whenever property is forfeited under this article, the claiming authority, or his or her respective designee, may:
(a) 
Retain the property or asset for official use.
(b) 
Sell any forfeited property or asset which is not required to be destroyed by law and which is not harmful to the public.
(c) 
Transfer the property or asset to any County agency, department or other political subdivision demonstrating need for the specific property or asset so that the property or asset may be put into official use by that agency, department or other political subdivision.
(d) 
Transfer the property or asset to any County-funded agency or organization demonstrating need for the specific property or asset so that the property or asset may be put into use by the funded agency or organization in the regular course of business of that funded agency or organization. Any such transfer of forfeited property or assets under this subsection may result in an in-kind deduction from those funds paid by the County to the specific agency or organization.
(2) 
Distribution of funds generated by sale of forfeited real property, motor vehicles, personal property or assets.
(a) 
Any funds generated by the disposition of seized property or assets as described herein, minus the reasonable and necessary expenses incurred in connection with real property, maintenance and/or in connection with towing, maintenance, and storage of the assets seized in accordance with this article, shall be distributed as set forth in this section. These funds shall include all fees received from the towing, maintenance, and storage of the assets seized by another law enforcement agency and thereafter transferred to the Suffolk County police impound facility. Whenever an outside law enforcement agency shall transfer a seized asset to the Suffolk County police impound facility, it shall be entitled to reimbursement of the towing fee actually incurred, up to a maximum of $200, upon disposal of said seized asset. In the event the fees collected by the Police Department upon disposal of said seized asset exceed the actual towing costs incurred, or the maximum of $200, whichever is less, as the case may be, such excess shall be retained by the Suffolk County Police Department. All reasonable and necessary expenses collected pursuant to this subsection shall be transferred into a police asset forfeiture fund in a separate nonlapsing appropriation for law enforcement purposes.
(b) 
Any funds generated by the disposition of forfeited property or assets described in this article, after deducting therefrom any fees imposed pursuant to Subsection C(2)(a) above, shall be distributed in the following order of priority:
[1] 
Amounts to satisfy any valid lien or claim against the property forfeited;
[2] 
Amounts ordered to be paid by the defendant in any other action or proceeding as restitution, reparations or damages to a victim of the offense which constitutes the basis upon which forfeiture of the seized asset was effected under this article, to the extent such amounts remain unpaid, whichever is less; provided, however, the claiming authority receives written notice from the victim or his or her duly appointed representative within 30 days of the commencement of the civil forfeiture action in order for the victim to receive such funds;
[3] 
All monies remaining after distributions pursuant to this subsection shall be distributed as follows:
[a] 
Twenty percent to the claiming authority in satisfaction of actual costs and expenses incurred in the investigation, preparation and litigation of the forfeiture action, including that proportion of the salaries of the attorneys, clerical and investigative personnel devoted thereto, plus all costs and disbursements made in the administration of this article shall be deposited into a separate nonlapsing appropriation of the claiming authority for law enforcement purposes;
[b] 
Ten percent to the Sheriff's Department in satisfaction of actual costs and expenses incurred in the service of process of the civil forfeiture actions, including that proportion of the salaries of the personnel devoted thereto shall be deposited into a separate nonlapsing appropriation of the Sheriff's Department for law enforcement purposes;
[c] 
Seventy percent to the Suffolk County District Attorney's Office for the purposes of supporting efforts to prosecute child pornography crimes; to enforce child pornography laws; and to educate the public about child pornography laws within Suffolk County. The expenditure of funds pursuant to this subsection shall be in accordance with an annual plan approved by resolution of the County Legislature.

§ 672-9 Discretionary action.

A. 
Nothing contained in this article shall require the claiming authority, or his or her respective designee, to commence a forfeiture action when, in his or her discretion, it is in the interests of justice not to commence such an action.
B. 
Nothing contained in this article shall require a court to order a forfeiture when it determines, in its discretion, that it is in the interests of justice not to do so.

§ 672-10 Rules and regulations.

The County Attorney shall issue and promulgate such rules and regulations as shall be necessary to implement the provisions of this article.

§ 672-11 Applicability.

This article shall apply to all actions and transactions occurring on or after the effective date.