N.Y. Tax Law § 1845: Forfeiture action with respect to alcoholic beverages and vehicles carrying such beverages

§ 1845. Forfeiture action with respect to alcoholic beverages and

vehicles carrying such beverages. (a) Temporary seizure. Whenever a

police officer designated in section 1.20 of the criminal procedure law

or a peace officer designated in subdivision four of section 2.10 of

such law, acting pursuant to his special duties, shall discover more

than ninety liters of liquors which are being imported for sale or use

in the state, where the person importing or causing such liquors to be

imported is not registered as a distributor under section four hundred

twenty-one of this chapter, such police officer or peace officer is

hereby authorized to seize and take possession of such liquors, and to

seize and take possession of the vehicle or other means of

transportation used to transport such liquors.

(b) Retention of property. The department shall hold and safely keep

such liquors, vehicle or other means of transportation seized pursuant

to subdivision (a) of this section. Seized liquors may be deposited to

the credit of the department at a storage facility within the state or

may be sold by the department.

(c) Confirmation of temporary seizure. Within five business days after

the temporary seizure of liquors, vehicle or other means of

transportation pursuant to subdivision (a) of this section, the

department shall move in supreme court in the county where the temporary

seizure occurred, on such notice as the court shall direct to the owners

of the property, to confirm the temporary seizure. If the department

fails to make such motion within the required period, such seized

property shall be restored to the owners thereof as provided in

subdivision (e) of this section. On a motion for an order confirming the

seizure, the department shall show, by affidavit and such other written

evidence as may be submitted, that there is a cause of action for

forfeiture under subdivision (d) of this section and that there are

grounds for confirmation of the seizure. The department shall include,

in its motion papers, an inventory of all seized property. The court

shall grant an application for an order confirming the seizure when it

determines that there is a substantial probability that the department

will prevail on the issue of forfeiture.

(d) Forfeiture action. (1) A forfeiture action shall be commenced

within forty-five days from the date of the seizure. Such action shall

be commenced and service shall be made in accordance with the methods

authorized by the civil practice law and rules or the business

corporation law. Upon such terms as may be just and upon good cause

shown, the court may extend the time, not exceeding thirty days, within

which the summons must be served, provided that the application for

extentions made before the expiration of the time fixed. If the

department fails to commence the forfeiture action within the required

period, such seized property shall be restored to the owners thereof as

provided in subdivision (e) of this section.

(2) A forfeiture action under this subdivision shall be commenced in

supreme court. The proper venue for trial of an action for forfeiture is

the county in which the temporary seizure authorized by subdivision (a)

of this section occurred.

(3) Forfeiture of liquors together with the vehicle or other means of

transportation used to transport such liquors shall be adjudged where

the department proves, by clear and convincing evidence, that the person

importing or causing such liquors to be imported was not registered as a

distributor under section four hundred twenty-one of this chapter. All

defendants in a forfeiture action brought pursuant to this article shall

have the right to trial by jury on any issue of fact.

(4) The court in which a forfeiture action is pending may dismiss said

action in the interests of justice upon an application as provided for

herein.

(A) At any time during the pendency of a forfeiture action, the

department or a defendant may apply for an order dismissing the

complaint and terminating the forfeiture action in the interest of

justice.

(B) Such application for relief provided in subparagraph (a) hereof

must be made in writing and upon notice to all parties. The court, in

its discretion, may direct that notice be given to any other person

having an interest in the property.

(C) An application for the relief provided for in subparagraph (A)

hereof must be brought exclusively in the supreme court in the county in

which the forfeiture action is pending.

(D) The court may grant the relief provided in subparagraph (A) hereof

if it finds that such relief is warranted by the existence of some

compelling factor, consideration or circumstance demonstrating that

forfeiture of the property or any part thereof, would not serve the ends

of justice. Reporting and payment of the tax imposed by or pursuant to

article eighteen of this chapter with respect to such liquors subsequent

to the seizure of such liquors shall not constitute a compelling factor,

consideration or circumstance warranting the granting of the relief

provided for in subparagraph (A) of this paragraph. In determining

whether such relief is warranted by the existence of some compelling

factor, consideration or circumstances pursuant to this paragraph, the

court may, however, take into account the fact that such taxes with

respect to the seized liquors have been reported and remitted to the

state prior to the temporary seizure of such liquors if such

unregistered importation into the state was effected in good faith and

without knowledge of the requirement of registration and without intent

to evade tax. The court must issue a written decision, stating the basis

for an order issued pursuant to this paragraph.

(5) An action under this subdivision shall be stayed during the

pendency of a criminal action which is related to it; provided, that

upon motion of a defendant in the forfeiture action or the department, a

court may, in the interest of justice and for good cause, and with the

consent of all parties, order that the forfeiture action proceed despite

the pending criminal action; and provided that such stay shall not

prevent the granting or continuance of an order confirming the seizure

provided under this section.

(6) The total that may be recovered shall not exceed the value of the

liquors seized and, in addition, either the value of the vehicle or

other means of transportation used to transport such liquors or three

times the amount of the tax, interest and penalty under article eighteen

of this chapter with respect to the liquors, whichever is less.

(e) Return of property. If (1) the department fails to move for

confirmation of the seizure pursuant to subdivision (c) of this section

or (2) a court denies an application for an order confirming the seizure

or (3) judgment is entered against the department in the forfeiture

action and that judgment is affirmed after all appeals are exhausted or

the time within which to appeal has expired, then the department shall

restore such seized liquors, or liquors of a like quantity and type, or

such seized vehicle or other means of transportation to the owners

thereof. Alternatively, if such seized liquors have been sold as

provided in subdivision (b) of this section, the department shall pay to

the owners of such liquors the proceeds of such sale or, if greater, an

amount of money representing the fair market value of the liquors at the

time of the seizure.

(f) Release of property. A person whose property has been seized may

move, upon notice to the commissioner, in the supreme court in the

county in which the temporary seizure occurred, for an order releasing

all or part of the property seized upon payment of the department's

reasonable fees and expenses, if any. On such a motion, the defendant

shall give an undertaking in accordance with article twenty-five of the

civil practice law and rules, in an amount equal to the value of the

property sought to be released, that defendant will pay the department

the value of such property which may be adjudged forfeited (but in the

case of the owner of a vehicle or other means of transportation, the

amount of the undertaking required shall not exceed three times the

amount of all taxes, interest and penalties due under article eighteen

of this chapter).

(g) Disposal of property. The department, after a judicial

determination of forfeiture, shall, in its discretion, either retain

such seized property for its official use or sell such forfeited

property at public sale. The net proceeds of any such sale, or of any

sale of seized liquors as provided in subdivision (b) of this section,

after deduction of the lawful expenses incurred, shall be deposited and

disposed of pursuant to the provisions of section one hundred

seventy-one-a of this chapter with respect to deposit and disposition of

revenue.

(h) Wrongful seizure. A defendant in a forfeiture action may recover

in an action for wrongful seizure all costs and damages, including

reasonable attorneys' fees, which may be sustained by reason of the

seizure if the defendant recovers judgment in the forfeiture action, or

if it is finally decided that there was no justification for the

seizure. In order to establish a claim for wrongful seizure, the

defendant must establish by a preponderance of the evidence that the

seizure was made without reasonable cause and not in good faith. An

action for wrongful seizure under this subdivision shall be the

defendant's exclusive remedy in connection with seizures made under this

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

be instituted unless such suit or action is commenced within two years

after the time when the property was seized.

(i) The remedies provided to the department by this section shall be

in addition to any other remedies provided by law.

(j) An action under this section is civil and remedial and shall not

be deemed to be a penalty or criminal forfeiture for any purpose. Except

as otherwise provided by statute, the proceedings under this section

shall be governed by the civil practice law and rules. An action under

this section is not a criminal proceeding and shall not be deemed to be

a previous prosecution under article forty of the criminal procedure

law.

(k) An additional ground for seizure and forfeiture under this section

shall be where such police officer or peace officer shall discover more

than ninety liters of liquors in this state, with respect to which the

taxes imposed by or pursuant to article eighteen of this chapter have

not been paid or assumed by a person registered as a distributor

pursuant to such article, which are in the course of distribution in

this state or which are being sold in this state. All the foregoing

subdivisions of this section shall apply to the seizure and forfeiture

of liquors referred to in this subdivision and the vehicle transporting

the same as if such foregoing subdivisions specifically referred to such

grounds and as if such grounds set forth in this subdivision were set

forth as grounds for seizure in subdivision (a) hereof. Provided that in

the forfeiture action with respect to the liquors or vehicle referred to

in this subdivision, the department shall be required to show that such

liquors were found within the state and that they were in the course of

distribution in this state or were being sold in this state.

(l) This section shall also apply to a forfeiture action with respect

to the importation of more than ninety liters of liquors into a city

imposing a tax pursuant to the authority of section four hundred

forty-five of this chapter by a person not registered as a distributor

for purposes of such tax or, in addition, with respect to the

distribution or sale of untaxed liquors in such city.