Town of Brookhaven, NY Article V Enforcement

[Amended 3-17-2022 by L.L. No. 4-2022, effective 3-24-2022; 9-18-2023 by L.L. No. 7-2023, effective 10-2-2023]

§ 57-32 Seizure.

A. Any peace or police officer shall have the power to seize as evidence without a warrant any rake, tong, dredge or device, other than a boat or vehicle, which he has cause to believe is being used or is possessed for the taking of shellfish in violation of this chapter, provided that the requirements of Subsection C following are fulfilled.

B. Any peace or police officer shall have the power to seize without a warrant for conservation, health or evidentiary purposes any shellfish taken or possessed in violation of this chapter, provided that the requirements of Subsection C following are fulfilled:

(1) Shellfish seized for conservation purposes shall be returned to the bay.

(2) Shellfish seized for health or evidentiary purposes shall be dealt with as provided in Subsection D.

C. Seizures of shellfish and/or devices without a warrant are permitted, provided that there is not ample opportunity to obtain a warrant prior to such seizure of such shellfish and/or devices and that such seizure is reasonable to prevent their concealment or destruction. Ample opportunity includes advance knowledge of the existence and precise location of the shellfish and/or devices to be seized.

D. Any peace or police officer shall have the power to retain custody of and provide for the safekeeping of anything seized as provided in Subsection A or B, as he deems appropriate, subject to the regulations of the Town and subject to an order of any court having jurisdiction, until a determination of any prosecution arising from the violation or alleged violation with respect to which they are in evidence.

§ 57-33 Forfeiture.

A. Should the defendant be found guilty in any prosecution, civil or criminal, of a violation of any provision of this chapter, the defendant's interest in any and all shellfish rakes, tongs, dredges or devices, other than a boat or vehicle, taken or used for the purpose of taking shellfish in violation of such provision shall be forfeited to the Town. Unless a claim of ownership of such device shall be made to the Town by some other person within 30 days thereafter and shall be established by order of a court or to the satisfaction of the Town, such device shall be disposed of as the Town shall direct.

B. Claim of ownership.

(1) For the purposes of this section, a "claim of ownership" shall mean any lawful interest, including a part interest or security interest.

(2) A claim of ownership shall not prevent vesting or revesting ownership and right of possession in the Town pursuant to Subsection A of this section unless the person establishing it either establishes a right of ownership exclusive of any interest of the defendant or shall purchase or redeem from the Town any interest of the defendant by payment to the Town of the value thereof, together with the reasonable expenses of safekeeping of such property between the time of seizure and such redemption. Establishment of a claim of ownership shall not, in any event, prevent such revesting in the Town if the Town shall establish that the illegal use or possession of which the defendant is held liable or found guilty was expressly or impliedly permitted by the person establishing the claim of ownership.

(3) Establishment of a claim of ownership consisting of a part ownership or a security interest shall not entitle the person establishing it to delivery of property as to which the interest of the defendant is declared confiscated or forfeited as provided in Subsection A of this section unless the person establishing it shall redeem any interest of the defendant by payment to the Town of the value thereof, together with the reasonable expenses of safekeeping of such property between the time of seizure and such redemption. Establishment of a claim of ownership shall not, in any event, entitle the person establishing it to delivery of the property if the Town shall establish that the illegal use or possession of such property in the manner or for the purposes or in the circumstances making such use or possession illegal was expressly or impliedly permitted by the person establishing such claim of ownership.

(4) Where a person establishing a claim of ownership is required to purchase or redeem any interest of the defendant in a civil or criminal prosecution in order to be entitled to delivery of property in which such claim of ownership is established, such interest of the defendant must be so purchased or redeemed not less than 10 days after the price of purchase or redemption shall have been fixed by order of the court or agreed to between the person whose claim is so established and the Town. If a person establishing a claim of ownership shall fail to purchase or redeem the interest of the defendant within the time provided in this subsection or such longer time as may be provided by order of the court or agreement of the Town, he shall be deemed to have abandoned his claim of ownership, and the property may be disposed of as if no such claim had been asserted.

(5) A person asserting a claim of ownership as provided in this section shall have the burden of proof.

(6) In any action or proceeding in which any person asserts a claim of ownership with respect to property in which the interest of the defendant is declared confiscated and forfeited as provided in Subsection A of this section, the testimony of such person or of the defendant in the civil or criminal prosecution, or of both, shall not be deemed sufficient to establish his claim unless corroborated by documentary evidence or by testimony of some other person not interested in the event.

§ 57-34 Penalties for offenses.

A. Any person convicted of violating § 57-3, 57-5A or 57-7A shall be guilty of a violation and punishable as follows:

(1) For a first conviction, by a fine of not less than $50 nor more than $250.

(2) For a second or subsequent conviction within five years of a previous conviction for a like offense, by a fine of not less than $250 nor more than $500.

B. Any person convicted of violating any of the provisions of § 57-11, 57-13, 57-16, 57-21, 57-22, 57-23 or 57-24 shall be guilty of a violation and punishable as follows:

(1) For a first conviction, by a fine of not less than $100 nor more than $250.

(2) For a second or subsequent conviction within five years of a previous conviction for a like offense, by a fine of not less than $250 nor more than $500.

C. Any person convicted of violating any of the provisions of § 57-4, 57-5B, 57-10C or D, 57-14B, 57-19, 57-25, 57-28C or D, 57-30 or 57-31A shall be guilty of a violation and punishable as follows:

(1) For a first conviction, by a fine of not less than $200 nor more than $500.

(2) For a second or subsequent conviction within five years of a previous conviction for a like offense, by a fine of not less than $500 nor more than $1,000.

D. Any person convicted of a violation of any of the provisions of §§ 57-14A, 57-15, 57-17 and 57-20A shall be guilty of the following:

(1) A violation for a first conviction, punishable by a fine of not less than $250 nor more than $500 or by imprisonment of not less than three months nor more than one year, or by both such fine and imprisonment.

(2) A misdemeanor for a second or subsequent conviction within five years of a previous conviction for a like offense, punishable by a fine of not less than $500 nor more than $1,000 or by imprisonment for not less than six months nor more than one year, or by both such fine and imprisonment.

E. Any person convicted of violating the provisions of § 57-7B shall be guilty of a misdemeanor and punishable by a fine of not less than $500 nor more than $1,000 or by imprisonment for not less than six months nor more than one year, or by both such fine and imprisonment.

F. Any person convicted of the simultaneous violation of §§ 57-14A, 57-15 and 57-17 shall be guilty of a misdemeanor and punishable by a fine of not less than $500 nor more than $1,000 or by imprisonment for not less than six months nor more than one year, or by both such fine and imprisonment. A conviction of having simultaneously violated §§ 57-14A, 57-15 and 57-17 shall result in the immediate and permanent revocation of all shellfish permits issued hereunder.

G. Any person convicted of violating any of the provisions of § 57-20B shall be guilty of the following:

(1) For a first conviction involving undersized clams in excess of 3% but less than 10% of the total catch: a violation punishable by a fine of not less than $100 nor more than $250.

(2) For a first conviction involving undersized clams in excess of 10% but less than 50% of the total catch: a violation punishable by a fine of not less than $250 nor more than $500.

(3) For a first conviction involving undersized clams in excess of 50% of the total catch: a misdemeanor, punishable by a fine of not less than $500 nor more than $1,000 or by imprisonment for not less than six months, nor more than one year, or by both such fine and imprisonment, and immediate revocation of any and all current shellfish permits for a period of not less than one year.

(4) For a second conviction involving undersized clams in excess of 3% but less than 10% of the total catch: a violation punishable by a fine of not less than $250 nor more than $500.

(5) For a second conviction involving undersized clams in excess of 10% but less than 50% of the total catch: a violation punishable by a fine of not less than $500 nor more than $1,000.

(6) For a second conviction involving undersized clams in excess of 50% of the total catch: a misdemeanor punishable by a fine of not less than $1,000 nor more than $1,500 or by imprisonment for not less than six months nor more than one year, or by both such fine and imprisonment, and immediate, permanent revocation of any and all shellfish permits.

H. Any person convicted of violating any of the provisions of § 57-18 shall be guilty of a violation and punishable as follows:

(1) For a first conviction, by a fine of not less than $1,000 nor more than $2,500.

(2) For a second or subsequent conviction for a like offense, by a fine of not less than $2,500 nor more than $5,000.