STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6278
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 4, 2006
                                       ___________
 
        Introduced  by  Sens.  PADAVAN,  DeFRANCISCO,  JOHNSON, LARKIN, MORAHAN,
          RATH, SKELOS, WRIGHT -- read  twice  and  ordered  printed,  and  when
          printed to be committed to the Committee on Codes
 
        AN ACT to amend the penal law, in relation to the seizure and forfeiture
          of vehicles, vessels and aircraft used in counterfeit goods
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Title J of part 3 of the penal law is amended by  adding  a
     2  new article 166 to read as follows:
     3                                 ARTICLE 166
     4               SEIZURE AND FORFEITURE OF VEHICLES, VESSELS AND
     5                     AIRCRAFT USED IN COUNTERFEIT GOODS
     6  Section 166.00 Seizure  and forfeiture of vehicles, vessels and aircraft
     7                   used in counterfeit goods.
     8  § 166.00 Seizure and forfeiture of vehicles, vessels and  aircraft  used
     9             in counterfeit goods.
    10    1.  Any vehicle, vessel or aircraft which has been or is being used in
    11  violation of section 165.71, 165.72, or 165.73 of this  title  shall  be
    12  seized  by  any  peace  officer,  who  is acting pursuant to his special
    13  duties, or police officer, and forfeited as provided  in  this  section.
    14  However,  such  forfeiture and seizure provisions shall not apply to any
    15  vehicle, vessel or aircraft used by any person as a  common  carrier  in
    16  the transaction of business as such common carrier.
    17    2.  The  seized  property  shall be delivered by the police officer or
    18  peace officer having made the seizure to the  custody  of  the  district
    19  attorney  of  the  county  wherein the seizure was made, together with a
    20  report of all the facts and circumstances of the seizure.
    21    3. It shall be the duty of the district attorney of the county wherein
    22  the seizure is made, to  inquire  into  the  facts  of  the  seizure  so
    23  reported  to  him  and if it appears probable that a forfeiture has been
    24  incurred by reason of a violation of section 165.71, 165.72,  or  165.73
    25  of  this  title,  for  the  determination  of  which  the institution of
    26  proceedings in the supreme court  is  necessary,  to  cause  the  proper
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14171-01-5

S. 6278 2

1 proceedings to be commenced and prosecuted, at any time after thirty
2 days from the date of the seizure, to declare such forfeiture, unless,
3 upon inquiry and examination, such district attorney or corporation
4 counsel decides that such proceedings can not probably be sustained or
5 that the ends of public justice do not require that they should be
6 instituted or prosecuted, in which case, the district attorney or corpo-
7 ration counsel shall cause such seized property to be returned to the
8 owner thereof.
9 4. Notice of the institution of the forfeiture proceeding shall be
10 served either (a) personally on the owners of the seized property, or
11 (b) by registered mail to the owners' last known address and by publica-
12 tion of the notice once a week for two successive weeks in a newspaper
13 published or circulated in the county wherein the seizure was made.
14 5. Forfeiture shall not be adjudged where the owners establish by
15 preponderance of the evidence that (a) the use of such seized property,
16 in violation of section 165.71, 165.72, or 165.73 of this title, was not
17 intentional on the part of any owner, or (b) such seized property was
18 used in violation of section 165.71, 165.72, or 165.73 of this title, by
19 any person other than an owner thereof, while such seized property was
20 unlawfully in the possession of a person who acquired possession thereof
21 in violation of the criminal laws of the United States, or of any state.
22 6. The district attorney or the police department having custody of
23 the seized property, after such judicial determination of forfeiture,
24 shall, at their discretion, either retain such seized property for the
25 official use of their office or department, or, by a public notice of at
26 least five days, sell such forfeited property at public sale. The net
27 proceeds of any such sale, after deduction of the lawful expenses 28 incurred, shall be paid into the general fund of the county wherein the
29 seizure was made.
30 7. Whenever any person interested in any property which is seized and
31 declared forfeited under the provisions of this section files with a
32 justice of the supreme court a petition for the recovery of such
33 forfeited property, the justice of the supreme court may restore such
34 forfeited property upon such terms and conditions as he deems reasonable
35 and just, if the petitioner establishes either of the affirmative
36 defenses set forth in subdivision five of this section and that the
37 petitioner was without personal or actual knowledge of the forfeiture
38 proceeding. If the petition is filed after the sale of the forfeited
39 property, any judgment in favor of the petitioner shall be limited to
40 the net proceeds of such sale after deduction of the lawful expenses and
41 costs incurred by the district attorney, police department or corpo-
42 ration counsel.
43 8. No suit or action under this section for wrongful seizure shall be
44 instituted unless such suit or action is commenced within two years
45 after the time when the property was seized.
46 § 2. This act shall take effect on the first of November next succeed-
47 ing the date on which it shall have become a law.

 
BILL NUMBER: S6278
 
SPONSOR: PADAVAN

 
TITLE OF BILL:  An act to amend the penal law, in relation to the
seizure and forfeiture of vehicles, vessels and aircraft used in coun-
terfeit goods
 
 
PURPOSE: To provide for the seizure and forfeiture of the property
used in trafficking in counterfeit goods.
 
 
SUMMARY OF PROVISIONS: This legislation would provide for the seizure
and forfeiture of the property of trademark counterfeiters and those who
traffic in counterfeit goods.
 
 
LEGISLATIVE HISTORY: New bill.
 
 
JUSTIFICATION: Trademark counterfeiting is a serious problem which is
reportedly getting worse. The counterfeit goods trade comprises the sale
of so-called knock-offs of brand-name products as well as pirated intel-
lectual property, including "bootleg" DVDs. It has been estimated that
this illicit trade takes billions of dollars out of the state's economy,
with an annual fiscal impact of over $2.6 billion in lost revenue.
 
This legislation would provide for the seizure and forfeiture of the
property used in trafficking in counterfeit goods.
 
 
FISCAL IMPLICATIONS: None.
 
 
EFFECTIVE DATE: The first day of November next succeeding the date on
which it shall have become a law.