Seizure and forfeiture of vehicles or other means of transportation used to transport or for deposit or concealment of cigarettes or used...

# (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.