N.Y. VAT. LAW § 511-c : NY Code - Section 511-C: Seizure and forfeiture of vehicles used in the unlicensed operation of a motor vehicle under certain circumstances

Search N.Y. VAT. LAW § 511-c : NY Code - Section 511-C: Seizure and forfeiture of vehicles used in the unlicensed operation of a motor vehicle under certain circumstances

1.  For
  purposes of this section:
    (a)  The  term  "owner"  shall mean an owner as defined in section one
  hundred twenty-eight and in subdivision three of section  three  hundred
  eighty-eight of this chapter.
    (b)  The  term  "security  interest" shall mean a security interest as
  defined in subdivision (k) of section two thousand one  hundred  one  of
  this chapter.
    (c)  The  term "termination of the criminal proceeding" shall mean the
  earliest of (i) thirty-one days following the imposition of sentence; or
  (ii) the date of acquittal of a person arrested for an offense; or (iii)
  where leave to file new charges or to resubmit the case to a  new  grand
  jury is required and has not been granted, thirty-one days following the
  dismissal  of  the  last accusatory instrument filed in the case, or, if
  applicable, upon  expiration  of  the  time  granted  by  the  court  or
  permitted  by statute for filing new charges or resubmitting the case to
  a new grand jury; or (iv) where leave to file new charges or to resubmit
  the case to a new grand jury is not required, thirty-one days  following
  the  dismissal  of the last accusatory instrument filed in the case, or,
  if applicable, upon expiration of the  time  granted  by  the  court  or
  permitted  by statute for filing new charges or resubmitting the case to
  a new grand jury; or (v) six months from the issuance of an "adjournment
  in contemplation of dismissal" order pursuant to section 170.55  of  the
  criminal  procedure  law,  where the case is not restored to the court's
  calendar within the applicable six-month period; or (vi) the date  when,
  prior  to  the  filing  of  an  accusatory  instrument  against a person
  arrested for  an  offense,  the  prosecuting  authority  elects  not  to
  prosecute such person.
    2.  Any  motor vehicle which has been or is being used in violation of
  paragraph (a) of subdivision three of section  five  hundred  eleven  of
  this  article may be seized by any peace officer, acting pursuant to his
  or her special duties, or police officer, and forfeited  as  hereinafter
  provided in this section.
    3.  A vehicle may be seized upon service of a notice of violation upon
  the owner or operator of a vehicle. The seized motor  vehicle  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 motor vehicle shall be delivered to the  custody  of  the  police
  department  of  such cities and such motor vehicle 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. Within  one  business  day  after  the
  seizure,  notice of such violation and a copy of the notice of violation
  shall be mailed to the owner of such vehicle at  the  address  for  such
  owner  set  forth  in  the records maintained by the department of motor
  vehicles or, for  vehicles  not  registered  in  New  York  state,  such
  equivalent record in such state of registration.
    4.  (a)  The  attorney  general  in  seizures  by members of the state
  police, or the district attorney of the county wherein  the  seizure  is
  made, if elsewhere than in the cities of New York, Yonkers, Rochester or
  Buffalo,  or  where  the seizure is made in such cities, the corporation
  counsel of the city shall inquire into  the  facts  of  the  seizure  so
  reported  to  him  or  her.  If it appears that there is a basis for the
  commencement and prosecution of a forfeiture proceeding pursuant to this
  section, any such forfeiture proceeding shall be  commenced  in  supreme
  court  not later than twenty days after the date of receipt of a written

  demand by a person claiming ownership of the motor  vehicle  accompanied
  by  the  documentation  required  to  be  presented  upon release of the
  vehicle pursuant to subparagraphs (i), (ii), and (iv) of  paragraph  (a)
  of subdivision five of this section.
    (b) Where forfeiture proceedings are commenced and prosecuted pursuant
  to  this  section,  the  motor  vehicle  which  is  the  subject of such
  proceedings shall remain in  the  custody  of  such  district  attorney,
  police  department  or  superintendent  of  state police, as applicable,
  pending the final determination of such proceedings.
    (c) To the extent applicable, the procedures of article thirteen-A  of
  the  civil  practice  law and rules shall govern proceedings and actions
  under this section.
    5. A motor vehicle seized pursuant to this section shall  be  released
  when:
    (a)  (i)  Such  attorney  general,  district  attorney  or corporation
  counsel has made a determination not to institute forfeiture proceedings
  pursuant to this section or the time period within  which  a  forfeiture
  proceeding  could  have  been  commenced  pursuant  to  this section has
  elapsed and no such forfeiture proceeding was commenced or the  criminal
  proceeding  has  been  terminated in favor of the accused, as defined in
  subdivision three of section 160.50 of the criminal procedure law; and
    (ii) The person seeking to  claim  the  motor  vehicle  has  furnished
  satisfactory evidence of registration and financial security and, if the
  person  was  the operator of the vehicle at the time of the violation of
  paragraph (a) of subdivision three of section  five  hundred  eleven  of
  this article, satisfactory evidence of payment of any fines or penalties
  imposed in connection therewith; and
    (iii)  Payment  has  been made for the reasonable costs of removal and
  storage of the motor vehicle. The owner of the motor  vehicle  shall  be
  responsible  for  such  payment provided, however, that if he or she was
  not the operator at the time of the offense, such person  shall  have  a
  cause  of  action  against  such operator to recover such costs. Payment
  prior to release of the motor vehicle shall not  be  required  in  cases
  where  the  seized motor vehicle was stolen or rented or leased pursuant
  to a written agreement for a period of thirty days or less, however  the
  operator  of  such  a  motor  vehicle  shall  be liable for the costs of
  removal and storage of the motor vehicle to any  entity  rendering  such
  service; and
    (iv)  If  the motor vehicle is held as evidence, the person seeking to
  claim the motor vehicle has presented a  release  from  the  prosecuting
  authority providing that the motor vehicle is not needed as evidence.
    (b)  (i)  Pending completion of forfeiture proceedings which have been
  commenced, the person seeking to claim the motor vehicle  has  posted  a
  bond  in a form satisfactory to such attorney general, district attorney
  or corporation counsel in an amount that  shall  not  exceed  an  amount
  sufficient  to  cover  the maximum fines or civil penalties which may be
  imposed for the violation underlying  the  seizure  and  all  reasonable
  costs for removal and storage of such vehicle; and
    (ii)  The  persons  seeking  to  claim the motor vehicle has furnished
  satisfactory evidence of registration and financial security.
    6. Where a demand for the return of a motor vehicle is not made within
  ninety days after the termination of  the  criminal  proceeding  founded
  upon the charge of aggravated unlicensed operation of a motor vehicle in
  the  first  degree,  such motor vehicle shall be deemed to be abandoned.
  Such vehicle shall be disposed of by the county,  cities  of  New  York,
  Yonkers, Rochester or Buffalo or the state, as applicable, in accordance
  with  section twelve hundred twenty-four of this chapter or as otherwise
  provided by law.

    7. Notice of the institution of the  forfeiture  proceeding  shall  be
  served:
    (a)  By  personal service pursuant to the civil practice law and rules
  upon all owners of the  seized  motor  vehicle  listed  in  the  records
  maintained by the department, or for vehicles not registered in New York
  state, in the records maintained by the state of registration; and
    (b)  By  first  class mail upon all individuals who have notified such
  attorney general, district attorney or corporation counsel that they are
  an owner of the vehicle and upon all persons holding a security interest
  in such motor vehicle which security interest has been  filed  with  the
  department  pursuant  to the provisions of title ten of this chapter, at
  the address set forth in the records of such department,  or  for  motor
  vehicles  not  registered  in  New  York  state,  all  persons holding a
  security interest in such motor vehicle which security interest has been
  filed with such state of registration, at the address provided  by  such
  state of registration.
    8.  Any  owner  who receives notice of the institution of a forfeiture
  action who claims an interest in the motor vehicle subject to forfeiture
  shall  assert  a  claim  for  the  recovery  of  the  motor  vehicle  or
  satisfaction   of   the  owner's  interest  in  such  motor  vehicle  by
  intervening in the forfeiture action in accordance with subdivision  (a)
  of  section one thousand twelve of the civil practice law and rules. Any
  person with a security interest in such vehicle who receives  notice  of
  the  institution  of  the forfeiture action shall assert a claim for the
  satisfaction of such person's  security  interest  in  such  vehicle  by
  intervening  in the forfeiture action in accordance with subdivision (a)
  of section one thousand twelve of the civil practice law and rules.   If
  the  action  relates  to  a vehicle in which a person holding a security
  interest has intervened pursuant to this subdivision, the  burden  shall
  be  upon  the  designated  official  to  prove  by  clear and convincing
  evidence that such intervenor knew that such vehicle  was  or  would  be
  used for the commission of a violation of subparagraph (ii) of paragraph
  (a)  of  subdivision three of section five hundred eleven of the vehicle
  and traffic law and either (a) knowingly and unlawfully benefitted  from
  such conduct or (b) voluntarily agreed to the use of the vehicle for the
  commission  of  such  violation by consent freely given. For purposes of
  this subdivision, such intervenor  knowingly  and  unlawfully  benefited
  from the commission of such violation when he or she derived in exchange
  for permitting the use of such vehicle by a person or persons committing
  such  specified violation a substantial benefit that would otherwise not
  have accrued as a result of the lawful use of  such  vehicle.  "Benefit"
  means  benefit  as  defined in subdivision seventeen of section 10.00 of
  the penal law.
    9. No motor vehicle shall be  forfeited  under  this  section  to  the
  extent  of  the interest of a person who claims an interest in the motor
  vehicle, where such person pleads and proves that:
    (a) The use of such motor vehicle for the conduct that was  the  basis
  for  a seizure occurred without the knowledge of such person, or if such
  person had knowledge of such use, without the consent  of  such  person,
  and that such person did not knowingly obtain such interest in the motor
  vehicle in order to avoid the forfeiture of such vehicle; or
    (b)  The  conduct that was the basis for such seizure was committed by
  any person other than such person claiming  an  interest  in  the  motor
  vehicle,  while such motor vehicle was unlawfully in the possession of a
  person who acquired possession thereof in violation of the criminal laws
  of the United States or any state.

    10. The court in which a forfeiture action is pending may dismiss said
  action in the interests of justice  upon  its  own  motion  or  upon  an
  application as provided for herein.
    (a)  At  any  time  during  the  pendency  of a forfeiture action, the
  designated official who instituted the action, 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 the relief provided in paragraph (a) of  this
  subdivision  must be made in writing and upon notice to all parties. The
  court may, in its discretion, direct that notice be given to  any  other
  person having an interest in the property.
    (c)  An  application  for  the relief provided for in paragraph (a) of
  this subdivision must be brought exclusively in the  superior  court  in
  which the forfeiture action is pending.
    (d)  The  court may grant the relief provided in paragraph (a) of this
  subdivision 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. Among the factors, considerations and circumstances the
  court may consider, among others, are:
    (i) the seriousness and  circumstances  of  the  crime  to  which  the
  property  is  connected relative to the impact of forfeiture of property
  upon the person who committed the crime; or
    (ii) the adverse impact of a  forfeiture  of  property  upon  innocent
  persons.
    (e)  The  court must issue a written decision stating the basis for an
  order issued pursuant to this subdivision.
    11. The district attorney,  police  department  or  superintendent  of
  state  police  having  custody  of  the seized motor vehicle, after such
  judicial determination of forfeiture, shall, by a public  notice  of  at
  least twenty days, sell such forfeited motor vehicle 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, provided, however, that the net proceeds of the sale
  of a motor vehicle seized in the cities of New York, Yonkers,  Rochester
  and  Buffalo  shall  be  paid  into the respective general funds of such
  cities, and provided further that the net proceeds  of  the  sale  of  a
  motor  vehicle  seized  by the state police shall be paid into the state
  police seized assets account.
    12. In any action commenced pursuant to this section, where the  court
  awards  a  sum  of  money to one or more persons in satisfaction of such
  person's or persons'  interest  or  interests  in  the  forfeited  motor
  vehicle,  the total amount awarded to satisfy such interest or interests
  shall not exceed the amount of the net  proceeds  of  the  sale  of  the
  forfeited motor vehicle, after deduction of the lawful expenses incurred
  by  the county, cities of New York, Yonkers, Rochester or Buffalo or the
  state, as applicable, and storage of the motor vehicle between the  time
  of seizure and the date of sale.
    13.  At  any  time  within  two  years  after  the seizure, any person
  claiming an interest  in  a  motor  vehicle  which  has  been  forfeited
  pursuant  to this section who was not sent notice of the commencement of
  the forfeiture action pursuant to subdivision seven of this section,  or
  who  did  not  otherwise receive actual notice of the forfeiture action,
  may assert in an action commenced before  the  justice  of  the  supreme
  court  before  whom  the  forfeiture action was held such claim as could
  have been asserted in the forfeiture action pursuant  to  this  section.
  The  court may grant the relief sought upon such terms and conditions as
  it deems reasonable and just if the person claiming an interest  in  the

  motor  vehicle  establishes  that  he  or she was not sent notice of the
  commencement of the forfeiture action and was without  actual  knowledge
  of  the  forfeiture  action,  and  establishes either of the affirmative
  defenses set forth in subdivision nine of this section.
    14.  No  action  under  this  section  for  wrongful  seizure shall be
  instituted unless such action is commenced within two  years  after  the
  time when the motor vehicle was seized.