|SAME AS||No Same As|
|Amd S1800, V & T L|
|Provides for forfeiture of a truck, tractor and/or tractor-trailer combination if a driver thereof has been convicted of three violations of a designated system of truck routes within eighteen months.|
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STATE OF NEW YORK ________________________________________________________________________ 946 2015-2016 Regular Sessions IN SENATE January 7, 2015 ___________ Introduced by Sen. AVELLA -- read twice and ordered printed, and when printed to be committed to the Committee on Transportation AN ACT to amend the vehicle and traffic law, in relation to providing for forfeiture of a truck, tractor and/or tractor-trailer combination if a driver thereof has been convicted of three violations of a desig- nated system of truck routes within eighteen months The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 1800 of the vehicle and traffic law is amended by 2 adding a new subdivision (i) to read as follows: 3 (i) 1. Any truck, tractor or tractor-trailer combination having a 4 total gross weight in excess of ten thousand pounds, which has been or 5 is being used in violation of a local law, ordinance, order, rule or 6 regulation enacted by the legislative body of any city, village or town, 7 pursuant to the provisions of paragraph ten of subdivision (a) of 8 section sixteen hundred forty or paragraph ten of subdivision (a) of 9 section sixteen hundred sixty of this chapter, may, upon a third 10 conviction for such an offense of the owner or operator of such vehicle 11 in an eighteen month period, be seized by any peace officer, acting 12 pursuant to his or her special duties, or police officer, and forfeited 13 as hereinafter provided in this subdivision. 14 2. A truck, tractor or tractor-trailer combination having a total 15 gross weight in excess of ten thousand pounds may be seized upon service 16 of a notice of violation upon the owner or operator of such vehicle. The 17 seized vehicle shall be delivered by the officer having made the seizure 18 to the custody of the district attorney, corporation counsel or other 19 prosecuting authority which is assigned to handle the prosecution of the 20 offense in the relevant municipality, together with a report of all the 21 facts and circumstances of the seizure. Within one business day after 22 the seizure, notice of such violation and a copy of the notice of 23 violation shall be mailed to the owner of such vehicle at the address EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01927-01-5S. 946 2 1 for such owner set forth in the records maintained by the department of 2 motor vehicles or, for vehicles not registered in New York state, such 3 equivalent record in such state of registration. 4 3. a. The attorney general in seizures by members of the state police, 5 or the district attorney, corporation counsel or other prosecuting 6 authority which is assigned to handle the prosecution of the offense in 7 the relevant municipality shall inquire into the facts of the seizure so 8 reported to him or her. If it appears that there is a basis for the 9 commencement and prosecution of a forfeiture proceeding pursuant to this 10 subdivision, any such forfeiture proceeding shall be commenced in 11 supreme court not later than twenty days after the date of receipt of a 12 written demand by a person claiming ownership of the truck, tractor or 13 tractor-trailer combination accompanied by the documentation required to 14 be presented upon release of such vehicle pursuant to clauses (i), (ii), 15 and (iv) of subparagraph a of paragraph four of this subdivision. 16 b. Where forfeiture proceedings are commenced and prosecuted pursuant 17 to this section, the truck, tractor or tractor-trailer combination which 18 is the subject of such proceedings shall remain in the custody of such 19 prosecuting authority, as applicable, pending the final determination of 20 such proceedings. 21 c. To the extent applicable, the procedures of article thirteen-A of 22 the civil practice law and rules shall govern proceedings and actions 23 under this subdivision. 24 4. A truck, tractor or tractor-trailer combination seized pursuant to 25 this section shall be released when: 26 a. (i) Such prosecuting authority has made a determination not to 27 institute forfeiture proceedings pursuant to this subdivision or the 28 time period within which a forfeiture proceeding could have been 29 commenced pursuant to this subdivision has elapsed and no such forfei- 30 ture proceeding was commenced or the prosecution for violation of the 31 local law, ordinance, order, rule or regulation enacted by the legisla- 32 tive body of any city, village or town, pursuant to the provisions of 33 paragraph ten of subdivision (a) of section sixteen hundred forty or 34 paragraph ten of subdivision (a) of section sixteen hundred sixty of 35 this chapter has been terminated in favor of the accused; and 36 (ii) The person seeking to claim the truck, tractor or tractor-trailer 37 combination has furnished satisfactory evidence of registration and 38 financial security and, if the person was the operator of the vehicle at 39 the time of the violation of the local law, ordinance, order, rule or 40 regulation enacted by the legislative body of any city, village or town, 41 pursuant to the provisions of paragraph ten of subdivision (a) of 42 section sixteen hundred forty or paragraph ten of subdivision (a) of 43 section sixteen hundred sixty of this chapter, satisfactory evidence of 44 payment of any fines or penalties imposed in connection therewith; and 45 (iii) Payment has been made for the reasonable costs of removal and 46 storage of the truck, tractor or tractor-trailer combination. The owner 47 of such vehicle shall be responsible for such payment provided, however, 48 that if he or she was not the operator at the time of the offense, such 49 person shall have a cause of action against such operator to recover 50 such costs. Payment prior to release of such vehicle shall not be 51 required in cases where the seized truck, tractor or tractor-trailer 52 combination was stolen or rented or leased pursuant to a written agree- 53 ment for a period of thirty days or less, however the operator of such a 54 vehicle shall be liable for the costs of removal and storage of such 55 vehicle to any entity rendering such service; andS. 946 3 1 (iv) If the truck, tractor or tractor-trailer combination is held as 2 evidence, the person seeking to claim such vehicle has presented a 3 release from the prosecuting authority providing that the motor vehicle 4 is not needed as evidence. 5 b. (i) Pending completion of forfeiture proceedings which have been 6 commenced, the person seeking to claim the truck, tractor or tractor- 7 trailer combination has posted a bond in a form satisfactory to such 8 prosecuting authority in an amount that shall not exceed an amount 9 sufficient to cover the maximum fines or civil penalties which may be 10 imposed for the violation underlying the seizure and all reasonable 11 costs for removal and storage of such vehicle; and 12 (ii) The persons seeking to claim the motor vehicle have furnished 13 satisfactory evidence of registration and financial security. 14 5. Where a demand for the return of a truck, tractor or tractor-trail- 15 er combination is not made within ninety days after the termination of 16 the proceeding founded upon the charge of violation of a local law, 17 ordinance, order, rule or regulation enacted by the legislative body of 18 any city, village or town, pursuant to the provisions of paragraph ten 19 of subdivision (a) of section sixteen hundred forty or paragraph ten of 20 subdivision (a) of section sixteen hundred sixty of this chapter, such 21 motor vehicle shall be deemed to be abandoned. Such vehicle shall be 22 disposed of by the relevant municipality, as applicable, in accordance 23 with section twelve hundred twenty-four of this chapter or as otherwise 24 provided by law. 25 6. Notice of the institution of the forfeiture proceeding shall be 26 served: 27 a. By personal service pursuant to the civil practice law and rules 28 upon all owners of the seized truck, tractor or tractor-trailer combina- 29 tion listed in the records maintained by the department, or for vehicles 30 not registered in New York state, in the records maintained by the state 31 of registration; and 32 b. By first class mail upon all individuals who have notified such 33 prosecuting authority that they are an owner of the truck, tractor or 34 tractor-trailer combination and upon all persons holding a security 35 interest in such vehicle which security interest has been filed with the 36 department pursuant to the provisions of title ten of this chapter, at 37 the address set forth in the records of such department, or for vehicles 38 not registered in New York state, all persons holding a security inter- 39 est in such vehicle which security interest has been filed with such 40 state of registration, at the address provided by such state of regis- 41 tration. 42 7. Any owner who receives notice of the institution of a forfeiture 43 action who claims an interest in the truck, tractor or tractor-trailer 44 combination subject to forfeiture shall assert a claim for the recovery 45 of such vehicle or satisfaction of the owner's interest in such vehicle 46 by intervening in the forfeiture action in accordance with subdivision 47 (a) of section one thousand twelve of the civil practice law and rules. 48 Any person with a security interest in such vehicle who receives notice 49 of the institution of the forfeiture action shall assert a claim for the 50 satisfaction of such person's security interest in such vehicle by 51 intervening in the forfeiture action in accordance with subdivision (a) 52 of section one thousand twelve of the civil practice law and rules. If 53 the action relates to a truck, tractor or tractor-trailer combination in 54 which a person holding a security interest has intervened pursuant to 55 this paragraph, the burden shall be upon the designated official to 56 prove by clear and convincing evidence that such intervenor knew thatS. 946 4 1 such vehicle was or would be used for the commission of a violation of a 2 local law, ordinance, order, rule or regulation enacted by the legisla- 3 tive body of any city, village or town, pursuant to the provisions of 4 paragraph ten of subdivision (a) of section sixteen hundred forty or 5 paragraph ten of subdivision (a) of section sixteen hundred sixty of 6 this chapter and either a. knowingly and unlawfully benefitted from such 7 conduct or b. voluntarily agreed to the use of the vehicle for the 8 commission of such violation by consent freely given. For purposes of 9 this paragraph, such intervenor knowingly and unlawfully benefited from 10 the commission of such violation when he or she derived in exchange for 11 permitting the unlawful use of such vehicle by a person or persons 12 committing such specified violation a substantial benefit that would 13 otherwise not have accrued as a result of the lawful use of such vehi- 14 cle. "Benefit" means benefit as defined in subdivision seventeen of 15 section 10.00 of the penal law. 16 8. No truck, tractor or tractor-trailer combination shall be forfeited 17 under this subdivision to the extent of the interest of a person who 18 claims an interest in such vehicle, where such person pleads and proves 19 that: 20 a. The use of such vehicle for the conduct that was the basis for a 21 seizure occurred without the knowledge of such person, or if such person 22 had knowledge of such use, without the consent of such person, and that 23 such person did not knowingly obtain such interest in the vehicle in 24 order to avoid the forfeiture of such vehicle; or 25 b. The conduct that was the basis for such seizure was committed by 26 any person other than such person claiming an interest in the vehicle, 27 while such vehicle was unlawfully in the possession of a person who 28 acquired possession thereof in violation of the criminal laws of the 29 United States or any state. 30 9. The court in which a forfeiture action is pending may dismiss said 31 action in the interests of justice upon its own motion or upon an appli- 32 cation as provided for herein. 33 a. At any time during the pendency of a forfeiture action, the desig- 34 nated official who instituted the action, or a defendant may apply for 35 an order dismissing the complaint and terminating the forfeiture action 36 in the interest of justice. 37 b. Such application for the relief provided in subparagraph a of this 38 paragraph must be made in writing and upon notice to all parties. The 39 court may, in its discretion, direct that notice be given to any other 40 person having an interest in the property. 41 c. An application for the relief provided for in subparagraph a of 42 this paragraph must be brought exclusively in the court in which the 43 forfeiture action is pending. 44 d. The court may grant the relief provided in subparagraph a of this 45 paragraph if it finds that such relief is warranted by the existence of 46 some compelling factor, consideration or circumstance demonstrating that 47 forfeiture of the property or any part thereof, would not serve the ends 48 of justice. Among the factors, considerations and circumstances the 49 court may consider, among others, are: 50 (i) the seriousness and circumstances of the crime to which the prop- 51 erty is connected relative to the impact of forfeiture of property upon 52 the person who committed the crime; or 53 (ii) the adverse impact of a forfeiture of property upon innocent 54 persons. 55 e. The court must issue a written decision stating the basis for an 56 order issued pursuant to this subdivision.S. 946 5 1 10. The prosecuting authority having custody of the seized truck, 2 tractor or tractor-trailer combination, after such judicial determi- 3 nation of forfeiture, shall, by a public notice of at least twenty days, 4 sell such forfeited vehicle at public sale. The net proceeds of any such 5 sale, after deduction of the lawful expenses incurred, shall be paid 6 into the general fund of the municipality wherein the seizure was made, 7 and provided further that the net proceeds of the sale of a motor vehi- 8 cle seized by the state police shall be paid into the state police 9 seized assets account. 10 11. In any action commenced pursuant to this section, where the court 11 awards a sum of money to one or more persons in satisfaction of such 12 person's or persons' interest or interests in the forfeited truck, trac- 13 tor or tractor-trailer combination, the total amount awarded to satisfy 14 such interest or interests shall not exceed the amount of the net 15 proceeds of the sale of the forfeited vehicle, after deduction of the 16 lawful expenses incurred by the municipality or the state, as applica- 17 ble, and storage of the vehicle between the time of seizure and the date 18 of sale. 19 12. At any time within two years after the seizure, any person claim- 20 ing an interest in a truck, tractor or tractor-trailer combination which 21 has been forfeited pursuant to this subdivision who was not sent notice 22 of the commencement of the forfeiture action pursuant to paragraph six 23 of this subdivision, or who did not otherwise receive actual notice of 24 the forfeiture action, may assert in an action commenced before the 25 justice of the supreme court before whom the forfeiture action was held 26 such claim as could have been asserted in the forfeiture action pursuant 27 to this subdivision. The court may grant the relief sought upon such 28 terms and conditions as it deems reasonable and just if the person 29 claiming an interest in the truck, tractor or tractor-trailer combina- 30 tion establishes that he or she was not sent notice of the commencement 31 of the forfeiture action and was without actual knowledge of the forfei- 32 ture action, and establishes either of the affirmative defenses set 33 forth in paragraph eight of this subdivision. 34 13. No action under this subdivision for wrongful seizure shall be 35 instituted unless such action is commenced within two years after the 36 time when the truck, tractor or tractor-trailer combination was seized. 37 § 2. This act shall take effect on the ninetieth day after it shall 38 have become a law.