Suffolk County, NY Article II Forfeiture of Property Used in or Obtained Through Crime [1]

[Adopted 6-8-1999 by L.L. No. 18-1999; amended in its entirety 4-20-2004 by L.L. No. 7-2004 (Ch. 270, Art. IV, of the 1985 Code)]

[1] Editor's Note: Res. No. 270-2003, adopted 4-29-2003, stated that no town or village would receive public safety revenue-sharing funds on or after the effective date of such resolution until it had been certified, in writing, by the County Attorney that such town or village was actively and affirmatively enforcing the provisions of this article.

§ 420-5 Definitions.

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.

§ 420-6 Warrantless seizures.

A. Any 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.

B. Notice of seizure.

(1) The seizing agency shall send notification of the seizure to all titled owners, 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 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:

(a) Issuance of a restraining order prohibiting the sale, transfer, or loss of the vehicle with imposition(s) of appropriate penalties for violation of said restraining order;

(b) Taking of a bond; and/or

(c) Use of an interlock device.

(2) When a hearing is held, the 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 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.

(3) The Suffolk County Executive shall designate neutral magistrates to conduct hearings in accordance with this Subsection B.

(4) When property is seized by an outside law enforcement agency within the Towns of Riverhead, Southold, East Hampton, Southampton or Shelter Island, including seizures within any village located within the geographic boundaries of these towns, the hearings required under this subsection shall be conducted at a location in Riverhead.

[Added 10-17-2006 by L.L. No. 55-2006]

(5) Transfer of seized property.

[Added 10-17-2006 by L.L. No. 55-2006]

(a) Subject to Subsection B(5)(b) and (c) hereunder, when property is seized hereunder by an outside law enforcement agency, the County shall effectuate the transfer of the property from that agency into the custody of the County of Suffolk within five business days of a decision by the neutral magistrate authorizing the continued retention of the seized property. The claiming authority shall notify the Suffolk County Police Department within 24 hours to effectuate the transfer of the property.

(b) In the event the outside law enforcement agency makes a request to retain the property following forfeiture pursuant to § 420-8A(5) and said request is granted by the claiming authority, the outside law enforcement agency shall be responsible for the storage of the property until the property is forfeited under this article.

(c) In the event the outside law enforcement agency makes a request to retain the property following forfeiture pursuant to § 420-8A(5) and said request is not granted by the claiming authority, the County shall effectuate the transfer of the property from that agency into the custody of the County of Suffolk within five business days of a decision by the claiming authority. The claiming authority shall notify the Suffolk County Police Department within 24 hours of its denial to effectuate the transfer of the property.

C. Any action for forfeiture under § 420-7A of this article shall be commenced, in the manner prescribed by 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.

§ 420-7 Civil authority.

[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.[1]

[1] Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. IV).

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.

§ 420-8 Disposition of forfeited assets and proceeds.

A. Whenever property is forfeited under this article, the claiming authority, or his or her respective designee, may:

(1) Retain the property or asset for official use.

(2) Sell any forfeited property or asset which is not required to be destroyed by law and which is not harmful to the public.

(3) 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) 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.

(5) Transfer the property or asset to the outside law enforcement agency that made the original seizure, provided that the outside law enforcement agency has notified the claiming authority, in writing, on or before the hearing date before the neutral Magistrate, seeking authority to continue retention of the seized property or asset, of its intent to use the property or asset for law enforcement purposes, and a determination has been made by the claiming authority that such use is for legitimate law enforcement purposes. The claiming authority shall provide a written decision to the outside law enforcement agency within 15 days of receipt of the written request to retain the property or asset. In the event the property or asset is not used for legitimate law enforcement purposes by the outside law enforcement agency, the County may exercise its right to have the property or asset transferred to the Suffolk County impound facility at the County's expense.

[Added 10-17-2006 by L.L. No. 55-2006]

B. Distribution of funds generated by sale of forfeited property or assets.

(1) Any funds generated by the disposition of seized property or assets as described in this article, minus the reasonable and necessary expenses incurred 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 all costs actually incurred for towing the seized property or asset to and from its impound area and for paid storage, up to a maximum of $300, upon disposal of said seized asset, but said reimbursement shall not exceed money actually received by the Suffolk County Police Department for its disposition. 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 $300, 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.

[Amended 10-17-2006 by L.L. No. 55-2006; 6-12-2007 by L.L. No. 19-2007]

(2) Any funds generated by the disposition of forfeited property or assets described in this article, after deducting therefrom any fees imposed pursuant to Subsection B(1) above, shall be distributed in the following order of priority:

(a) Amounts to satisfy any valid lien or claim against the property forfeited.

(b) 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/her duly appointed representative within 30 days of the commencement of the civil forfeiture action in order for the victim to receive such funds.

(c) Remaining funds.

[1] All monies remaining after distributions pursuant to Subsection B(2)(a) and (b) 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 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.

[2] The expenditure of funds pursuant to this Subsection B(2)(c) shall be in accordance with an annual plan approved by resolution of the County Legislature.

§ 420-9 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.

§ 420-10 Rules and regulations.

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.