N.Y. Public Health Law § 3388: Seizure and forfeiture of vehicles, vessels or aircraft unlawfully used to conceal, convey or transport controlled substances

§ 3388. Seizure and forfeiture of vehicles, vessels or aircraft

unlawfully used to conceal, convey or transport controlled substances.

1. Except as authorized in this article, it shall be unlawful to:

(a) transport, carry, or convey any controlled substance in, upon, or

by means of any vehicle, vessel or aircraft; or

(b) conceal or possess any controlled substance in or upon any

vehicle, vessel or aircraft, or upon the person of anyone in or upon any

vehicle, vessel or aircraft; or

(c) use any vehicle, vessel or aircraft to facilitate the

transportation, carriage, conveyance, concealment, receipt, possession,

purchase, or sale of any controlled substance.

2. Any vehicle, vessel or aircraft which has been or is being used in

violation of subdivision one, except a vehicle, vessel or aircraft used

by any person as a common carrier in the transaction of business as such

common carrier shall be seized by any peace officer, acting pursuant to

his special duties, or police officer, and forfeited as hereinafter in

this section provided. A vehicle, vessel or aircraft is not subject to

forfeiture unless used in connection with acts or conduct which would

constitute a felony under article 220 of the penal law.

3. The seized property shall be delivered by the officer having made

the seizure to the custody of the district attorney of the county

wherein the seizure was made, except that in the cities of New York,

Yonkers, Rochester and Buffalo the seized property shall be delivered to

the custody of the police department of such cities and such property

seized by a member or members of the state police shall be delivered to

the custody of the superintendent of state police, together with a

report of all the facts and circumstances of the seizure.

4. It shall be the duty of the attorney general in seizures by members

of the state police, otherwise it shall be the duty of the district

attorney of the county wherein the seizure is made, if elsewhere than in

the cities of New York, Yonkers, Rochester or Buffalo, and where the

seizure is made in such cities it shall be the duty of the corporation

counsel of the city, to inquire into the facts of the seizure so

reported to him and if it appears probable that a forfeiture has been

incurred by reason of a violation of this section, 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 twenty days after written demand by a person

claiming ownership thereof, to declare such forfeiture, unless, upon

inquiry and examination, such district attorney, attorney general or

corporation counsel 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, the attorney general or corporation counsel shall cause such

seized property to be returned to the owner thereof. The procedure for

proceedings instituted under this section shall conform as much as

possible to the procedure for attachment.

5. Notice of the institution of the forfeiture proceeding shall be

served either:

(a) personally on the owners of the seized property; or

(b) by registered mail to the owners' last known address and by

publication of the notice once a week for two successive weeks in a

newspaper published or circulated in the county wherein the seizure was

made.

6. Forfeiture shall not be adjudged where the owners establish by

preponderance of the evidence that:

(a) the use of such seized property, in violation of subdivision one

of this section, was not intentional on the part of any owner; or

(b) said seized property was used in violation of subdivision one of

this section by any person other than an owner thereof, while such

seized property was unlawfully in the possession of a person who

acquired possession thereof in violation of the criminal laws of the

United States, or of any state.

7. The district attorney, the superintendent of state police or the

police department having custody of the seized property, after such

judicial determination of forfeiture, shall, at their discretion, either

retain such seized property for the official use of their office,

division or department, or, by a public notice of at least five days,

sell such forfeited property at public sale; provided, however, that

where such property is subject to a perfected lien such property may not

be retained for their official use unless all such liens on the property

to be retained have been or will be satisfied. The net proceeds of any

such sale, after deduction of the lawful expenses incurred, shall be

paid into the general fund of the county wherein the seizure was made

except that the net proceeds of the sale of property seized in the

cities of New York, Yonkers, Rochester and Buffalo shall be paid into

the respective general funds of such cities, and of the sale of property

seized by the state police into the general fund of the state.

8. Whenever any person interested in any property which is seized and

declared forfeited under the provisions of this section 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 he deems reasonable

and just, if the petitioner establishes either of the affirmative

defenses set forth in subdivision six of this section and that the

petitioner was without personal or actual knowledge of the forfeiture

proceeding. If the petition be 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, police department or

corporation counsel.

9. No suit or action under this section for wrongful seizure shall be

instituted unless such suit or action is commenced within two years

after the time when the property was seized.