[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.]
[Adopted 2-13-1985 by L.L. No. 2-1985 (Ch. 367 of the 1985
Code)]
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.
As used in this article, the following terms shall have the
meanings indicated:
The Commissioner of the Suffolk County Department of Consumer
Affairs.
The Suffolk County Department of Consumer Affairs.
Sexual conduct between persons consisting of contact between
the penis and the anus, the mouth and penis or the mouth and the vulva.
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.
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.
Material which:
Considered as a whole, predominantly appeals to the prurient
interest in sex of individuals;
Is patently offensive to prevailing standards in the adult community
as a whole, with respect to what is suitable material; and
Considered as a whole, lacks serious literary, artistic, political
and scientific value.
Any visual representation exhibited before a 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.
Any public or quasi-public place, building or store where
the public may enter.
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.
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.
Contact between any part of the genitals of one person and the
genitals, mouth or anus of another person.
Contact between a person's mouth, anus or genitals and
the mouth, anus or genitals of an animal or fowl.
Manipulation of a person's genitals.
Actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, sadomasochistic abuse or lewd exhibition
of the genitals.
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.
Portrayals of nudity.
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.
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.
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.
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)]
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.
As used in this article, the following terms shall have the
meanings indicated:
The County Attorney, or her or his designee.
Any property the use of which contributed directly and materially
to the commission of an offense as defined in this article.
A violation of any section of Article 263 of the Penal Law
of the State of New York.
Any vehicles, airplanes, boats, vessels, computers, equipment
or any personal thing of value or any interest in a thing of value.
Includes land, buildings, fixtures, appurtenances, and improvements
thereon.
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.
(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.
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.
The County Attorney shall issue and promulgate such rules and
regulations as shall be necessary to implement the provisions of this
article.
This article shall apply to all actions and transactions occurring
on or after the effective date.
