[HISTORY: Adopted by the County Legislature of the County
of Sullivan as indicated in article histories. Amendments noted where
applicable.]
[Adopted 9-15-2011 by L.L. No. 5-2011]
A.
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.
B.
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.
C.
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.
Except as otherwise authorized by law, it shall be unlawful
for any person to:
A.
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
B.
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
C.
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
D.
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.
A.
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.
B.
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.
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.
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.
A.
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.
B.
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:
C.
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.
A.
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.
B.
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.
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.
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.
