•  Summary 
  •  
  •  Actions 
  •  
  •  Committee Votes 
  •  
  •  Floor Votes 
  •  
  •  Memo 
  •  
  •  Text 

S00946 Summary:

BILL NOS00946
 
SAME ASNo Same As
 
SPONSORAVELLA
 
COSPNSR
 
MLTSPNSR
 
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.
Go to top

S00946 Text:



 
                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.
                                                                   LBD01927-01-5

        S. 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; and

        S. 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  that

        S. 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.
Go to top