Sullivan County, NY Property Seizure and Forfeiture

This Legislature hereby finds and determines that activity associated with misdemeanor drug offenses poses a serious threat to the health, safety and welfare of the County residents and imposes an enormous burden upon the County in the provisions of personnel to enforce the laws, prosecute the violators and deliver services necessary to address the adverse social and health consequences of such criminal activity.

This Legislature further finds and determines that while criminal sanctions under the Penal Law are a useful weapon to deter misdemeanor drug activity, further local legislation is needed to achieve a reduction of such activity in the County by removing the potential for profit and developing greater resources to enhance treatment and education strategies to deter future crimes.

Therefore, the purpose of this article is to provide for the seizure and forfeiture of property and funds used in connection with or constituting the proceeds of misdemeanor drug activity.

§ 162-2 Unlawful acts.

Except as otherwise authorized by law, it shall be unlawful for any person to:

Transport, carry, or convey any controlled substance or marijuana in, upon, or by means of any vehicle, snowmobile, all-terrain vehicle, boat, ship, watercraft; or

Conceal or possess any controlled substance or marijuana in or upon themselves or any vehicle, snowmobile, all-terrain vehicle, boat, ship, watercraft, or upon the person of anyone in or upon any vehicle, snowmobile, all-terrain vehicle, boat, ship, watercraft; or

Use any vehicle, snowmobile, all-terrain vehicle, boat, ship, watercraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, or sale of any controlled substance or marijuana; or

Possess monies that are proceeds from the sale of any controlled substance or marijuana or used or intended to be used for the purchase of any controlled substance or marijuana.

§ 162-3 Property seized and forfeited; delivery of report to District Attorney.

Any vehicle, snowmobile, all-terrain vehicle, boat, ship, watercraft which has been or is being used in violation of § 162-2, except a vehicle used by any person as a common carrier in the transaction of business as such common carrier, and any money possessed in violation of § 162-2 shall be seized by any peace officer, acting pursuant to his or her special duties, or police officer, and forfeited as hereinafter provided in this article.

The officer having made the seizure of such property shall promptly deliver a report of all the facts and circumstances of the seizure to the District Attorney.

§ 162-4 Duty of District Attorney; civil proceedings; declaration of forfeiture or return of property.

It shall be the duty of the District Attorney to inquire into the facts of the seizure so reported to the District Attorney and, if it appears probable that forfeiture has been incurred by reason of a violation of this article, for the determination of which the institution of proceedings in the Supreme Court is necessary, to cause the proper proceedings to be commenced and prosecuted, not later than 10 days after written demand by a person claiming ownership thereof, to declare such forfeiture, unless upon inquiry and examination, the District Attorney decides that such proceedings cannot probably be sustained or that the ends of public justice do not require that they should be instituted or prosecuted in which case the District Attorney shall cause such seized property to be returned to the owner thereof. The procedure for proceedings instituted under this article shall conform as much as possible to be the procedure for attachment.

§ 162-5 Notice of proceedings.

Notice of the institution of the forfeiture proceeding shall be served on the owner of the seized property in accordance with the notice and service provisions of the New York State Civil Practice Law and Rules.

§ 162-6 Requirements for forfeiture; voluntary forfeiture.

In the event the seized property was used or possessed in violation of § 162-2 by the owner thereof, forfeiture shall not be adjudged in the absence of a misdemeanor conviction under Article 220 or Article 221 of the Penal Law.

In the event the seized property was used or possessed in violation of § 162-2 by a person other than the owner thereof, the forfeiture shall not be adjudged in the absence of a misdemeanor conviction under Article 220 or Article 221 of the Penal Law together with proof established by a preponderance of the evidence that the owner either:

(1)

Knew that the property would be used in violation of § 162-2; or

(2)

Had reason to know that the property would be used in violation of § 162-2.

Notwithstanding the provisions of this article, nothing herein shall be deemed to preclude the owner of seized property from entering into a consent agreement with the District Attorney's office addressing the voluntary forfeiture of any property seized in furtherance of drug activity as set forth in §§ 162-1 and 162-2. Any property voluntarily forfeited shall be distributed pursuant to § 162-7 of this article.

§ 162-7 Retention or sale of property; distribution and monitoring of proceeds.

The District Attorney, after such judicial determination of forfeiture, shall have the discretion where the property is a vehicle, snowmobile, all-terrain vehicle, boat, ship, watercraft to either retain such forfeited vehicle for the official use of the District Attorney's Office or the seizing police agency, or, by a public notice of at least five days, sell such forfeited vehicle, snowmobile, all-terrain vehicle, boat, ship, watercraft at public sale; provided, however, that where such vehicle, snowmobile, all-terrain vehicle, boat, ship, watercraft is subject to a perfected lien such vehicle may not be retained for official use unless all such liens on the vehicle to be retained have been or will be satisfied. The net proceeds of any such forfeiture under this article, after deduction of the lawful expenses incurred, shall be collected by the District Attorney and deposited with the Treasurer of Sullivan County, who shall record them in the appropriate trust account(s) and who shall forthwith distribute directly from this account as follows:

(1)

Thirty-three and one-third percent of all monies realized through forfeiture shall be paid into an account to be designated as the District Attorney's County Forfeiture Account. These funds are for the costs incurred in protecting, maintaining and forfeiting the property including that proportion of the salaries of attorneys, clerical and investigative personnel devoted thereto, as well as the related expenses towards increased forfeiture capabilities;

(2)

Thirty-three and one-third percent of all monies realized through forfeiture to the seizing police agency in satisfaction of the costs incurred for protecting, maintaining, and storing the seized property, said monies to be deposited in the agency's general forfeiture account in accordance with said agency's routine accounting procedures. The seizure agency may lose any claim to the seized asset pursuant to this section, if the report of facts and circumstances is not filed with the District Attorney's Office in a timely manner pursuant to § 162-3B;

(3)

The remaining 33 1/3% of all monies realized through forfeiture shall be paid into an account to be designated Law Enforcement Against Drugs. Monies paid into this account shall be used to fund Law Enforcement Against Drugs program initiatives of the District Attorney's Office in law enforcement, treatment, diversion, education, and increased forfeiture capabilities.

The Division of Management and Budget and the Sullivan County Treasurer shall monitor usage of all monies paid directly to the office of the District Attorney under § 162-7A(1) of this article or to the account used to fund Law Enforcement Against Drugs program initiatives under § 162-7A(3) of this article, and these assets will be accounted for and reported through Sullivan County's official accounting records.

§ 162-8 Restoration of property.

Whenever a person interested in any property which is seized and declared forfeited under the provisions of this article files with a Justice of the Supreme Court a petition for the recovery of such forfeited property, the Justice of the Supreme Court may restore said forfeited property upon such terms and conditions as the Supreme Court deems reasonable and just, if the petitioner establishes that the petitioner was without personal or actual knowledge of the forfeiture proceeding and that the District Attorney failed to establish the requirements for forfeiture as set forth in § 162-6 of this article. If the petition is filed after the sale of the forfeited property, any judgment in favor of the petitioner shall be limited to the net proceeds of such sale, after deduction of the lawful expenses and costs incurred by the District Attorney, and police agency.

§ 162-9 Time limitation for action for wrongful seizure.

No suit or action under this article for wrongful seizure shall be instituted unless such suit or action is commenced within six months after the time when the property was seized.