[Adopted 2-3-2009 by L.L. No. 4-2009 (Ch. 467, Art. VI,
of the 1985 Code)]
A.Â
This Legislature finds that in 2006, the New York State Legislature
enacted the Craig J. Todeschini Unlawful Fleeing a Police Officer
Act in honor of an officer killed in the line of duty by a motorist
fleeing from the police, which act elevated fleeing a police officer
in a motor vehicle to a crime and imposed criminal sanctions for such
activity.
B.Â
This Legislature further finds that from November 1, 2006, to June
30, 2008, there were 220 arrests in Suffolk County involving drivers
fleeing from police.
C.Â
This Legislature further finds that drivers who flee from police
place the public at peril of grave injury, and that penalties stronger
than those currently in place are needed to deter individuals from
unlawfully fleeing a police officer in a motor vehicle.
D.Â
Therefore, the purpose of this article is to protect the health and
lives of Suffolk motorists and residents by permitting the seizure
and forfeiture of vehicles involved in unlawfully fleeing a police
officer in a motor vehicle.
As used in this article, the following terms shall have the
meanings indicated:
The County Attorney, or his or her designee.
A vehicle, the use of which contributed directly and materially
to the commission of an offense as defined in this article.
Engaging in unlawfully fleeing a police officer in a motor
vehicle as prohibited by New York Penal Law § 270.25, § 270.30
or § 270.35.
A police officer as defined in § 1.20 of the New
York Criminal Procedure Law.[1]
The law enforcement agency seizing the instrumentality of
an offense.
A.Â
Upon making an arrest or upon issuing a summons or an appearance
ticket for an offense, or in the event an officer has probable cause
to believe a person has committed an offense and has fled the scene
of the offense, leaving the instrumentality of an offense behind,
an officer shall seize such instrumentality. Said instrumentality
may be forfeited as hereinafter provided.
B.Â
Notice of seizure.
(1)Â
The seizing agency shall send notification of the seizure to all
titled owners and registrants, if different, on file with the New
York State Department of Motor Vehicles or another state's equivalent
office if not titled in New York 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 having been issued a summons or having been arrested
for committing an offense, or in the event a person has fled the scene
of an offense, leaving the vehicle behind, whether probable cause
existed that the vehicle was used in the commission of an offense,
and whether the County is likely to succeed on the merits of the forfeiture
action, whether retention is necessary to preserve the vehicle 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:
(2)Â
When a hearing is held, the neutral magistrate shall review the documents or other evidence supporting the probable cause for the determination that an offense was committed and the vehicle was used in the commission of the offense, or for the issuance of a summons or arrest for an offense and any other relevant documents and take any testimony to determine whether the seizing agency has sustained its burden of proof as set forth in Subsection B(1) of this section. 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.Â
Any action for forfeiture under § 818-40 of this article shall be commenced, in the manner prescribed by New York Civil Practice Law and Rules § 304, within 180 days after the disposition of the summons or arrest for the offense, and in the instance where no summons or arrest was made, within the period consistent with the statute of limitations for the underlying offense, but in no event more than five years after seizure. Failure to commence such an action within the aforesaid time period shall result in the immediate return of the property to its lawful owner. The vehicle will be made available for release to the titled owner at the place of storage, subject to payment of reasonable and customary towing, maintenance and storage fees to the date of release. In the event of a failure to take possession of the vehicle within 60 days after actual notification or by certified mail, return receipt requested, sent to the address of the titled owner on file with the New York State Department of Motor Vehicles or another state's equivalent office, if not titled in New York, whichever date is earlier, the vehicle will be forfeited.
A.Â
A civil action may be commenced by the claiming authority, or its
designee, against a defendant to forfeit seized property which constitutes
the instrumentality of an offense or to recover a money judgment in
an amount equivalent in value to the property which constitutes an
instrumentality of an offense, except that:
(1)Â
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 article unless it shall appear that the owner or agent of
the owner was a consenting party or privy to the commission of the
offense; and
(2)Â
No property shall be forfeited under the provisions of this article
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.Â
A civil action may be commenced by the claiming authority, or its
designee, against a defendant to seize and to forfeit property which
constitutes the instrumentality of an offense, or to recover a money
judgment in an amount equivalent in value to the property which constitutes
the instrumentality of an offense, except that:
(1)Â
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 article unless it shall appear that the owner or agent of
the owner was a consenting party or privy to the commission of the
offense; and
(2)Â
No property shall be forfeited under the provisions of this article
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 is unlawfully in the possession of a person
other than the owner.
C.Â
A civil action may also be commenced against a noncriminal defendant to recover the property which constitutes the instrumentality of an offense, subject to the same exceptions contained in Subsections A and B of this section. A noncriminal defendant who is physically present in an instrumentality at the time of the commission of an offense, or a noncriminal defendant whose vehicle was an instrumentality used and operated by a person who is unlicensed or is driving with a suspended or revoked license, shall be presumed to know that the instrumentality of an offense was or would be used in a manner that would directly and materially contribute to the commission of an offense or that obtaining his or her interest in the instrumentality could assist the criminal defendant in avoiding the forfeiture. A noncriminal defendant who knows, or should know, of prior illegal use by a criminal defendant of an instrumentality or other property of a like nature or kind shall be presumed to know that the instrumentality of an offense was or would be used in a manner that would directly and materially contribute to the commission of a subsequent crime or that obtaining his or her interest in the instrumentality of an offense could assist the criminal defendant in avoiding the forfeiture.
D.Â
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.
E.Â
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.
F.Â
Unless barred by the five-year limitation contained in § 818-39C of this article, any action to forfeit seized property under Subsection A of this section may be commenced within 180 days after the disposition of the summons or arrest for the offense or, in the instance where no summons or arrest was made, within the statute of limitations for the underlying offense when the property has first been seized under § 818-39A of this article, and within 180 days after the disposition of the summons or arrest for the offense, or within the statute of limitations for the underlying offense where no summons or arrest has been made when the property has not been first seized under § 818-39A, 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 property shall be served with a summons and notice or summons and verified complaint. No property shall be forfeited without service of notice upon potential claimants to the property and the opportunity for a hearing given prior to such forfeiture.
G.Â
Once a civil action for forfeiture has been commenced pursuant to
this section, the claiming authority shall notify victims who have
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.
H.Â
In order to establish its case in any action commenced under this
article, the claiming authority shall demonstrate, by clear and convincing
evidence, that the instrumentality 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, if any, 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.
I.Â
If, after a seizure of property has been made under § 818-39A of this article, it is determined that the noncriminal defendant has met the burden set forth hereinabove, then the vehicle which constitutes the instrumentality of an offense so seized shall immediately be returned to its lawful owner. The vehicle will be made available for release to the lawful owner at the place of storage, subject to payment of reasonable and customary towing, maintenance and storage fees to the date of release. In the event of a failure to take possession of the vehicle within 60 days after actual notification or by certified mail, return receipt requested, sent to the address on file to the titled owner with the New York State Department of Motor Vehicles or another state's equivalent office, if not titled in New York, whichever date is earlier, then upon such failure the vehicle will be forfeited.
J.Â
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 agency, or in the event the instrumentality
of the offense has been transferred to the custody of the Suffolk
County Police Department by the seizing agency, such fees shall be
payable to the Suffolk County Police Department, prior to release
of said property. The seizing agency, if other than the Suffolk County
Police Department, shall be reimbursed up to $300 for towing and storage
expense actually incurred, upon disposal of said instrumentality of
the offense by the claiming authority, but said reimbursement shall
not exceed money actually received by the Suffolk County Police Department
for its disposition. All towing, storage and maintenance fees collected
shall be retained by the Suffolk County Police Department and shall
be transferred into a police asset forfeiture fund in a separate nonlapsing
appropriation for law enforcement purposes.
K.Â
The claiming authority may at any time authorize the return of the
seized vehicle to the lawful owner, with or without conditions attached.
When a vehicle is made available for release to the lawful owner,
it shall be at the place of storage and subject to payment of reasonable
and customary towing, maintenance and storage fees to the date of
release. In the event of a failure to take possession of the vehicle
within 60 days after actual notification or by certified mail, return
receipt requested, sent to the address on file to the titled owner
with the New York State Department of Motor Vehicles or another state's
equivalent office, if not titled in New York, whichever date is earlier,
then upon such failure the vehicle will be forfeited.
A.Â
Whenever property is forfeited under this article, the claiming authority,
or his or her respective designee, may:
(1)Â
Retain the property or asset for official use.
(2)Â
Sell any forfeited property or asset which is not required to be
destroyed by law and which is not harmful to the public.
(3)Â
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.
(4)Â
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.
B.Â
Any funds generated by the sale of forfeited property or assets described in this article, after deducting therefrom any fees imposed pursuant to § 818-40J above, shall be distributed in the following order of priority:
(1)Â
Amounts to satisfy any valid lien or claim against the property forfeited;
(2)Â
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)Â
All monies remaining after distributions made pursuant to Subsection B(1) and (2) shall be distributed as follows:
(a)Â
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, which shall be deposited into a separate nonlapsing
appropriation of the claiming authority for law enforcement purposes;
(b)Â
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, which shall be deposited into a separate
nonlapsing appropriation of the Sheriff's Department for law enforcement
purposes; and
(c)Â
Seventy percent to the Suffolk County STOP-DWI Office for the
purposes of supporting or providing drunk driving education, prevention
and enforcement programs administered by governmental and/or nongovernmental
agencies within Suffolk County.
A.Â
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.Â
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 may be necessary to implement the provisions of this
article.
This article shall apply to all actions occurring on or after
the effective date of this article.
This article shall be null and void on the day that statewide
or federal legislation goes into effect, incorporating either the
same or substantially similar provisions as are contained in this
article, or in the event that a pertinent state or federal administrative
agency issues and promulgates regulations preempting such action by
the County of Suffolk. The County Legislature may determine via mere
resolution whether or not identical or substantially similar statewide
legislation has been enacted for the purposes of triggering the provision
of this section.
