N.Y. Tax Law § 1847: Seizure and forfeiture of vehicles or other means of transportation used to transport or for deposit or concealment of cigarettes or used...

§ 1847. Seizure and forfeiture of vehicles or other means of

transportation used to transport or for deposit or concealment of

cigarettes or used to import tobacco products. (a) Any peace officer

designated in subdivision four or five of section 2.10 of the criminal

procedure law, acting pursuant to his or her special duties, or any

police officer designated in section 1.20 of the criminal procedure law

may seize any vehicle or other means of transportation used to transport

or for the deposit or concealment of more than one hundred unstamped or

unlawfully stamped packages of cigarettes subject to tax under article

twenty of this chapter or by chapter thirteen of title eleven of the

administrative code of the city of New York, other than a vehicle or

other means of transportation used by any person as a common carrier in

transaction of business as such common carrier, and such vehicle or

other means of transportation shall be subject to forfeiture as

hereinafter in this section provided.

(b) Any peace officer designated in subdivision four of section 2.10

of the criminal procedure law, acting pursuant to their special duties,

or any police officer designated in section 1.20 of the criminal

procedure law may seize any vehicle or other means of transportation

used to import tobacco products in excess of five hundred cigars, ten

pounds of tobacco, or one hundred fifty units of alternative nicotine

products, for sale where the person importing or causing such tobacco

products to be imported has not been appointed a distributor pursuant to

section four hundred seventy-two of this chapter, other than a vehicle

or other means of transportation used by any person as a common carrier

in transaction of business as such common carrier, and such vehicle or

other means of transportation shall be subject to forfeiture as

hereinafter in this section provided.

(c) 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 city of New York,

Yonkers or Buffalo, the seized property shall be delivered to the

custody of the police department of such city, together with a report of

all the facts and circumstances of the seizure.

(d) It shall be the duty of the district attorney of the county

wherein the seizure was made, if elsewhere than in the city of New York,

Yonkers or Buffalo, and where the seizure is made in any of 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, 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, at any

time after thirty days from the date of seizure, to declare such

forfeiture, unless, upon inquiry and examination such district attorney

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

or corporation counsel shall cause such seized property to be returned

to the owner thereof.

(e) Notice of the institution of the forfeiture proceeding shall be

served either (i) personally on the owners of the seized property or

(ii) 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.

(f) Forfeiture shall not be adjudged where the owners establish by a

preponderance of the evidence that (i) the use of such seized property

was not intentional on the part of any owner, (ii) said seized property

was used 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, or (iii) forfeiture is not warranted or would

not serve the ends of justice, taking into consideration the factors

specified in paragraph (d) of subdivision four of section thirteen

hundred eleven of the civil practice law and rules.

(g) The district attorney or the police department having custody of

the seized property, after such judicial determination of forfeiture,

shall, at its discretion, either retain such seized property for the

official use of its office or department, transfer such property to the

department of taxation and finance of the state of New York for its

official use, or, upon publication of a notice to such effect for at

least five successive days, before the day of sale, in a newspaper

published or circulated in the county where the seizure was made, sell

such forfeited property at public sale. 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 city of New

York, Yonkers or Buffalo shall be paid into the general fund of such

city.

(h) Whenever any property is seized and declared forfeited, any person

interested in any such property may apply to a justice of the supreme

court, on serving a notice of petition and petition on the appropriate

district attorney, police department or corporation counsel, for the

recovery of such forfeited property. The justice of the supreme court to

whom such application is made may restore said forfeited property upon

such terms as he deems reasonable and just, if the petitioner

establishes either of the affirmative defenses set forth in subdivision

(f) of this section and that the petitioner was without personal or

actual knowledge of the forfeiture proceeding. 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, police department or corporation counsel.

(i) 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.