[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.
As used in this article, the following terms shall have the
meanings indicated:
The District Attorney, or his or her designee, and/or the
County Attorney, or his or her designee.
Any property whose use contributed directly and materially
to the commission of an offense as defined in this article.
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]
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]
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.
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:
(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.
[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.
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]
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.
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.
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 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.