Bill Text: NY S04105 | 2009-2010 | General Assembly | Introduced
Bill Title: Provides for the seizure of any property or money furnished illegally in exchange for a controlled substance; creates a rebuttable presumption of such use or intent in certain circumstances; provides for disposition of the property so seized; applies also to property used to convey, conceal, or transport controlled substances illegally.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-01-06 - REFERRED TO HEALTH [S04105 Detail]
Download: New_York-2009-S04105-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 4105 2009-2010 Regular Sessions I N S E N A T E April 9, 2009 ___________ Introduced by Sen. AUBERTINE -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the public health law, in relation to the seizure and forfeiture of property or money furnished in the illegal exchange of a controlled substance THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Section 3388 of the public health law, as added by chapter 2 878 of the laws of 1972, subdivision 2 as amended by chapter 843 of the 3 laws of 1980, subdivision 3 as amended by chapter 419 of the laws of 4 1986, subdivision 4 as amended by chapter 527 of the laws of 1987 and 5 subdivision 7 as amended by chapter 655 of the laws of 1990, is amended 6 to read as follows: 7 S 3388. Seizure and forfeiture of vehicles, vessels or aircraft 8 unlawfully used to conceal, convey or transport controlled substances 9 AND OF PROPERTY FURNISHED IN EXCHANGE FOR SUCH SUBSTANCES. 1. Except as 10 authorized in this article, it shall be unlawful to: 11 (a) transport, carry, or convey any controlled substance in, upon, or 12 by means of any vehicle, vessel or aircraft; or 13 (b) conceal or possess any controlled substance in or upon any vehi- 14 cle, vessel or aircraft, or upon the person of anyone in or upon any 15 vehicle, vessel or aircraft; or 16 (c) use any vehicle, vessel or aircraft to facilitate the transporta- 17 tion, carriage, conveyance, concealment, receipt, possession, purchase, 18 or sale of any controlled substance[.]; OR 19 (D) POSSESS PROPERTY FURNISHED IN EXCHANGE FOR ANY CONTROLLED 20 SUBSTANCE IN VIOLATION OF THIS ARTICLE. 21 2. (A) Any vehicle, vessel or aircraft which has been or is being 22 used in violation of subdivision one OF THIS SECTION, (except a vehicle, 23 vessel or aircraft used by any person as a common carrier in the trans- 24 action of business as such common carrier) AND PROPERTY, POSSESSED IN EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08935-01-9 S. 4105 2 1 VIOLATION OF PARAGRAPH (D) OF SUCH SUBDIVISION, shall be seized by any 2 peace officer, acting pursuant to his OR HER special duties, or police 3 officer, and forfeited as hereinafter in this section provided. 4 (B) A vehicle, vessel or aircraft is not subject to forfeiture unless 5 used in connection with acts or conduct which would constitute a felony 6 under article [220] TWO HUNDRED TWENTY of the penal law. 7 (C) FOR PURPOSES OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION 8 AND THIS SUBDIVISION: 9 (1) THE TERM "PROPERTY" HAS THE ORDINARY, COMMON MEANING ASCRIBED TO 10 IT AND INCLUDES REAL AND PERSONAL PROPERTY, MONEY, NEGOTIABLE AND 11 NON-NEGOTIABLE INSTRUMENTS AND SECURITIES, AND THE BENEFITS AND PROPERTY 12 RESULTING FROM THE USE OR EXCHANGE OF ANY OF THEM. 13 (2) IT SHALL BE A PRESUMPTION (SUBJECT TO REBUTTAL BY THE CLAIMANT) 14 THAT ANY MONEY FOUND IN CLOSE PROXIMITY TO ANY CONTROLLED SUBSTANCE 15 OWNED OR POSSESSED IN VIOLATION OF THIS ARTICLE OR IN CLOSE PROXIMITY TO 16 ANY MATERIALS OR RECORDS USED IN CONNECTION THEREWITH, WAS MONEY 17 FURNISHED IN VIOLATION OF PARAGRAPH (D) OF SUBDIVISION ONE OF THIS 18 SECTION. 19 3. The seized property shall be delivered by the officer having made 20 the seizure to the custody of the district attorney of the county where- 21 in the seizure was made, except that in the cities of New York, Yonkers, 22 Rochester and Buffalo the seized property shall be delivered to the 23 custody of the police department of such cities and such property seized 24 by a member or members of the state police shall be delivered to the 25 custody of the superintendent of state police, together with a report of 26 all the facts and circumstances of the seizure. 27 4. It shall be the duty of the attorney general in seizures by members 28 of the state police, otherwise it shall be the duty of the district 29 attorney of the county wherein the seizure is made, if elsewhere than in 30 the cities of New York, Yonkers, Rochester or Buffalo, and where the 31 seizure is made in such cities it shall be the duty of the corporation 32 counsel of the city, to inquire into the facts of the seizure so 33 reported to him OR HER and if it appears probable that a forfeiture has 34 been incurred by reason of a violation of this section, for the determi- 35 nation of which the institution of proceedings in the supreme court is 36 necessary, to cause the proper proceedings to be commenced and prose- 37 cuted, not later than twenty days after written demand by a person 38 claiming ownership thereof, to declare such forfeiture, unless, upon 39 inquiry and examination, such district attorney, attorney general or 40 corporation counsel decides that such proceedings cannot probably be 41 sustained or that the ends of public justice do not require that they 42 should be instituted or prosecuted, in which case, the district attor- 43 ney, the attorney general or corporation counsel shall cause such seized 44 property to be returned to the owner thereof. The procedure for 45 proceedings instituted under this section shall conform as much as 46 possible to the procedure for attachment. 47 5. Notice of the institution of the forfeiture proceeding shall be 48 served either: 49 (a) personally on the owners of the seized property; or 50 (b) by registered mail to the owners' last known address and by publi- 51 cation of the notice once a week for two successive weeks in a newspaper 52 published or circulated in the county wherein the seizure was made. 53 6. Forfeiture shall not be adjudged where the owners establish by 54 preponderance of the evidence that: 55 (a) the use of such seized property, in violation of subdivision one 56 of this section, was not intentional on the part of any owner; or S. 4105 3 1 (b) said seized property was used in violation of subdivision one of 2 this section by any person other than an owner thereof, while such 3 seized property was unlawfully in the possession of a person who 4 acquired possession thereof in violation of the criminal laws of the 5 United States, or of any state. 6 7. The district attorney, the superintendent of state police or the 7 police department having custody of the seized property, after such 8 judicial determination of forfeiture, shall EXCEPT WITH RESPECT TO 9 MONEY, at their discretion, either retain such seized property for the 10 official use of their office, division or department, or, by a public 11 notice of at least five days, sell such forfeited property at public 12 sale; provided, however, that where such property is subject to a 13 perfected lien such property may not be retained for their official use 14 unless all such liens on the property to be retained have been or will 15 be satisfied. The net proceeds of any such sale, after deduction of the 16 lawful expenses incurred, AND ALL SEIZED MONEY shall be paid into the 17 general fund of the county wherein the seizure was made except that the 18 net proceeds of the sale of property AND ALL MONEY seized in the cities 19 of New York, Yonkers, Rochester and Buffalo shall be paid into the 20 respective general funds of such cities, and THE NET PROCEEDS of the 21 sale of property AND ALL MONEY seized by the state police into the 22 general fund of the state. 23 8. Whenever any person interested in any property OR MONEY which is 24 seized and declared forfeited under the provisions of this section files 25 with a justice of the supreme court a petition for the recovery of such 26 forfeited property OR MONEY, the justice of the supreme court may 27 restore said forfeited property OR MONEY upon such terms and conditions 28 as he OR SHE deems reasonable and just, if the petitioner establishes 29 either of the affirmative defenses set forth in subdivision six of this 30 section and that the petitioner was without personal or actual knowledge 31 of the forfeiture proceeding. If the petition be filed after the sale 32 of the forfeited property, any judgment in favor of the petitioner shall 33 be limited to the net proceeds of such sale, after deduction of the 34 lawful expenses and costs incurred by the district attorney, police 35 department or corporation counsel. 36 9. No suit or action under this section for wrongful seizure shall be 37 instituted unless such suit or action is commenced within two years 38 after the time when the property was seized. 39 S 2. This act shall take effect immediately.