[HISTORY: Adopted by the City Council of the City of Yonkers
2-28-2017 by L.L. No. 6-2017. Amendments noted where applicable.]
GENERAL REFERENCES
Vehicles and traffic — See Ch. 109.
A.
The Corporation Counsel may commence a civil action for forfeiture
to the City of any vehicle, as such term is defined in Subdivision
14 of § 10.00 of the Penal Law, when such vehicle is operated
or used by a person who is arrested or issued a summons by any police
officer of the Yonkers Police Department for engaging in or aiding
or abetting in any motor vehicle or other speed contest or exhibition
of speed on a highway as prohibited by § 1182 of the Vehicle
and Traffic Law and such person is convicted or pleads guilty to any
offense arising out of such arrest or summons. In order to establish
its case in any action commenced under this subsection, the City shall
demonstrate, by a preponderance of the evidence in the civil forfeiture
proceeding, that such person engaged in or aided or abetted in any
motor vehicle or other speed contest or exhibition of speed on a highway
as prohibited by § 1182 of the Vehicle and Traffic Law and
that such person's operation or use of such vehicle contributed
directly and materially to the commission of such offense.
B.
A civil action seeking forfeiture brought pursuant to this section shall be commenced in the County of Westchester within 60 days after such person has been convicted of any subdivision of § 1182 of the Vehicle and Traffic Law, if brought pursuant to Subsection A of this section, or within 60 days after such person has been convicted of any offense arising out of his or her arrest or summons under § 1182 of the Vehicle and Traffic Law, if brought pursuant to Subsection B of this section. The Yonkers Police Department shall make a timely notification to the Office of the Corporation Counsel regarding such conviction, or other disposition of the applicable criminal action or proceeding regarding such person.
A person who is arrested or summonsed by any police officer of the Yonkers Police Department for an offense under § 1182 of the Vehicle and Traffic Law shall receive notice at the time of arrest or summonsing on such charge and by certified mail, return receipt requested, as soon thereafter as practical, informing such person how and when the vehicle may be released and that the vehicle may be subject to a civil forfeiture proceeding. In the event that the driver is not the registered owner of the vehicle, separate notice shall be provided to the registered owner of the vehicle. Notice shall also be provided to any lienholder. Notice pursuant to this section shall be to the address recorded with the Department of Motor Vehicles of New York State or any other state, territory, district, province, nation or other jurisdiction, by certified mail, return receipt requested. The procedures set forth in Chapter 109 of the Code of the City of Yonkers with respect to impoundment, towing, storage and release of vehicles shall apply whenever a person has been arrested for an offense under § 1182 of the Vehicle and Traffic Law.
A.
The owner of a vehicle subject to forfeiture pursuant to this article must notify the City of any intention to transfer ownership or possession of such vehicle, no later than 15 days prior to such transfer. Notice provided pursuant to § 85-2 shall set forth the time and manner and procedures for such notification to the City. The provisions of this section shall remain in effect until the resolution of the forfeiture proceeding; provided, however, that the notice requirement herein shall expire as follows:
(1)
If the vehicle may be subject to forfeiture pursuant to Subsection A of § 85-1 of this chapter: (a) on the 61st day after any conviction of any offense arising out of an arrest or summons for an offense under § 1182 of the Vehicle and Traffic Law, in the event that the City has not commenced a forfeiture proceeding pursuant to this article prior to such day; or (b) on the day that the criminal action or proceeding against the person arrested or summonsed for violation of any provision of § 1182 of the Vehicle and Traffic Law is terminated in favor of such person without a conviction, as set forth in Subdivision 3 of § 160.50 of the Criminal Procedure Law.
B.
Applicability.
(1)
Nothing in this section shall be construed to affect the ability
of an entity that leases vehicles or a lienholder to exercise its
lawful rights to obtain possession of a vehicle under a contract or
applicable law.
C.
A person who transfers title or possession of a vehicle without providing
notice to the City as required by this section shall be subject, upon
a judgment that the vehicle shall be forfeited, to a penalty in the
amount of $1,500 in addition to the fair market value of the vehicle
at the time of the arrest. Evidence of such fair market value may
be established with reference to publications such as, but not limited
to, Kelley Blue Book or NADA guide.
A.
Upon receiving notification pursuant to § 85-3, the City may apply for a court order, either prior to or subsequent to the commencement of the civil forfeiture proceeding, to ensure that the vehicle remains available pending the outcome of the civil forfeiture proceeding pursuant to this chapter. In such an application, the City may request appropriate measures including, but not limited to, an order of the court restraining the transfer of title or possession of such vehicle, retention by the City of the vehicle pending the outcome of the forfeiture proceeding, or a bond in the amount of $1,500 plus the fair market value of the vehicle at the time of the arrest, to be determined as set forth in Subsection C of § 85-3.
B.
If a person is arrested or summonsed by any police officer of the Yonkers Police Department for an offense under § 1182 of the Vehicle and Traffic Law and such person is not convicted or does not plead guilty to any offense arising out of such arrest or summons, any vehicle retained pursuant to Subsection A of this section will be returned to him or her, or in the event that another person has a superior right of possession in such property, to such other person.
A.
It shall be an affirmative defense to an action brought pursuant
to this article that the owner of the vehicle, other than the person
arrested or summonsed for an offense under § 1182 of the
Vehicle and Traffic Law, did not have actual or constructive knowledge
that the vehicle would be used or operated in violation of any such
offenses or that the owner took reasonable steps to prevent use of
the vehicle by the person arrested or summonsed.
B.
Subject to the provisions of Subsection A of this section, the interest of a lienholder in such vehicle shall not be subject to forfeiture pursuant to this article; provided, however, that this provision shall not be construed to entitle a lienholder to more than the outstanding balance of the lien. For purposes of this subsection, the term "lienholder" shall mean any person, corporation, partnership, firm, agency, association or other entity who at the time of an arrest or summonsing pursuant to this article has a financial interest recorded as a lien with the Department of Motor Vehicles of New York State or any other state, territory, district, province, nation or other jurisdiction, except that "lienholder" shall not mean an entity that leases vehicles pursuant to a written agreement subject to the New York State Personal Property Law or the Uniform Commercial Code. Nothing in this provision shall be construed to prevent a lienholder whose lien is not so recorded from intervening in any action or proceeding under this article.
Following a determination by the court pursuant to this chapter
that a vehicle shall be forfeited, an owner may make a motion to the
court for relief from such determination. Such motion shall be made
on notice to the City. In order to obtain such relief, the owner must
submit evidence which establishes that the loss of the vehicle would
cause a substantial and unwarranted hardship because the owner has
no reasonable access to public transportation and to the use of another
vehicle and lacks the financial resources to purchase or lease another
vehicle and that possession of a vehicle is a necessary incident to
his or her employment, business, trade, occupation or profession;
or to his or her travel to and from a class or course at an accredited
school, college or university or at a state approved institution of
vocational or technical training; or necessary to travel to and from
a necessary medical examination or necessary medical treatment for
such owner or a member of his or her household. Upon satisfactory
demonstration of these factors to the court, the court may grant relief
from the forfeiture determination upon such terms and conditions as
will provide maximum protection to the public safety, which may include,
but not be limited to, installation of an ignition interlock device
in such vehicle.
Notwithstanding any provision of law to the contrary, the Corporation
Counsel shall be empowered to compromise, settle, or adjust rights,
claims, demands or causes of action in favor of or against the City
arising under this chapter.
A.
After a judicial determination of forfeiture, the Yonkers Police Department shall effect seizure of the vehicle, if such vehicle has not already been retained by the City pursuant to § 85-4 of this chapter, unless relief from such judicial determination by the court pursuant to § 85-6 of this article would prevent such seizure, or the Corporation Counsel has otherwise compromised, settled or adjusted the matter pursuant to § 85-7 of this chapter, in a manner that renders such seizure unnecessary. Following such seizure, the Yonkers Police Department shall either:
(1)
Retain such seized vehicle for the official use of its office, division
or department; or
(2)
Transfer such seized vehicle to any City agency, department, board
or commission demonstrating need for such seized vehicle, so that
such seized vehicle may be put into official use by that agency, department,
board or commission; or
(3)
Transfer such seized vehicle to any City-funded agency or organization
demonstrating need for such seized vehicle, so that such seized vehicle
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 vehicles under this subsection may result in
an in-kind deduction from those funds paid by the City to the specific
agency or organization; or
(4)
By a public notice of at least five days, sell such forfeited property
at a public sale conducted by the City Purchasing Agent.
B.
The net proceeds from any sale pursuant to Subsection A(4) of this section or from any compromise, settlement or adjustment by the Corporation Counsel pursuant to § 85-7 of this chapter, after deduction of the lawful expenses incurred, shall be paid into an account to be designated "Chapter 85 Forfeiture Proceeds." Monies paid into this account shall be used for the costs of the respective City departments administering the provisions of this article, including but not limited to costs of seizing property, publication service and legal costs; any balance shall be used to fund traffic program initiatives in law enforcement, treatment and education/prevention.
The City of Yonkers shall conduct public education to advise
members of the public, the judiciary, and legal community of the provisions
of this chapter.
The Yonkers Police Department shall provide a detailed annual
report to the City Council on the enforcement of this article for
the previous year. Such report shall include appropriate statistical
analysis and comment.
If any clause, sentence, subparagraph, subsection or section
of this chapter shall be held invalid by any court of competent jurisdiction,
or the application of this chapter to any person or set of circumstances
shall be held invalid, such invalidity or judgment shall not affect,
impair, or invalidate the remainder thereof, but shall be confined
in its operation to the clause, sentence, subparagraph, subsection,
section, or operation of this chapter directly involved in the controversy
in which the judgment shall have been rendered. To further this end,
the provisions of this chapter are hereby declared to be severable.
