Entitles law enforcement agencies to restitution for the costs of storage and destruction of goods or articles seized with arrests for trademark counterfeiting.
Sponsor: Lancman
Law Section: Penal Law / Law: Amd SS60.27 & 165.70, rpld & add SS165.74 & 420.00, Pen L; amd SS170.10, 180.10 & 210.15, CP L
Sponsor: Lancman
Law Section: Penal Law / Law: Amd SS60.27 & 165.70, rpld & add SS165.74 & 420.00, Pen L; amd SS170.10, 180.10 & 210.15, CP L
A6570-2011 Actions
- Jan 4, 2012: referred to codes
- Mar 22, 2011: referred to codes
A6570-2011 Text
S T A T E O F N E W Y O R K
6570 2011-2012 Regular Sessions I N ASSEMBLY March 22, 2011
Introduced by M. of A. LANCMAN -- read once and referred to the Commit tee on Codes
AN ACT to amend the penal law and the criminal procedure law, in relation to the storage and destruction of goods and articles relating to the offenses of trademark counterfeiting and unauthorized recordings; and to repeal certain provisions of the penal law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM BLY, DO ENACT AS FOLLOWS:
Section 1.
Section 60.27 of the penal law is amended by adding a new subdivision 15 to read as follows:
15. IF THE OFFENSE OF WHICH A PERSON IS CONVICTED IS DEFINED IN SECTION 165.71, 165.72, 165.73 OR ARTICLE TWO HUNDRED SEVENTY-FIVE OF THIS CHAPTER, AND A LAW ENFORCEMENT AGENCY OR OTHER PUBLIC ENTITY HAS EXPENDED FUNDS FOR THE PURPOSE OF STORING AND/OR DESTROYING GOODS OR ARTICLES SEIZED IN CONNECTION WITH SUCH OFFENSE, THEN NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH (A) OF SUBDIVISION FIVE OF THIS SECTION, SAID AGENCY OR OTHER PUBLIC ENTITY SHALL BE ENTITLED TO RESTITUTION OF THE REASONABLE COST OF SUCH STORAGE AND/OR DESTRUCTION, LESS THE AMOUNT OF ANY FUNDS WHICH HAVE BEEN OR ARE ANTICIPATED TO BE RECOVERED FROM ANY OTHER SOURCE. ANY LAW ENFORCEMENT AGENCY OR OTHER PUBLIC ENTITY SEEKING RESTITUTION PURSUANT TO THIS SUBDIVISION SHALL FILE WITH THE COURT, DISTRICT ATTORNEY AND DEFENSE COUNSEL AN AFFIDAVIT STATING THAT THE COSTS FOR WHICH RESTITUTION IS BEING SOUGHT HAVE NOT BEEN AND ARE NOT ANTICIPATED TO BE RECOVERED FROM ANY OTHER SOURCE OR IN ANY OTHER CIVIL OR CRIMINAL PROCEEDING.
S 2.
Section 165.70 of the penal law is amended by adding a new subdi vision 5 to read as follows:
5. THE TERM "REPRESENTATIVE SAMPLE" MEANS A MINIMUM OF ONE HUNDRED TWENTY-FIVE PERCENT OF THE AMOUNT OF GOODS THAT IS REQUIRED TO SUBSTAN TIATE THE HIGHEST DEGREE OF THE OFFENSE THAT MAY BE CHARGED IN THE ACCU EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD10375-01-1
A. 6570 2 SATORY INSTRUMENT, AS DETERMINED BY THE AGENCY HAVING CUSTODY OF SUCH GOODS.
S 3.
Section 165.74 of the penal law is REPEALED and a new section 165.74 is added to read as follows:
S 165.74 SEIZURE AND DESTRUCTION OF GOODS BEARING COUNTERFEIT TRADE MARKS. 1. ANY GOODS MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED OR PRODUCED IN VIOLATION OF THIS ARTICLE MAY BE SEIZED BY ANY POLICE OFFI CER, OR BY ANY PEACE OFFICER ACTING WITHIN HIS OR HER LAWFUL AUTHORITY. 2. IF THE DEFENDANT REQUESTS A HEARING AT ARRAIGNMENT PURSUANT TO SUBDIVISION TEN OF SECTION 170.10, SUBDIVISION SEVEN OF SECTION 180.10 OR SUBDIVISION FOUR OF SECTION 210.15 OF THE CRIMINAL PROCEDURE LAW, OR IF ANY OTHER PERSON TIMELY REQUESTS SUCH A HEARING PURSUANT TO SUBDIVI SION FIVE OF THIS SECTION, THE COURT MUST, WITHIN FORTY-EIGHT HOURS AFTER ARRAIGNMENT OF THE DEFENDANT OR WITHIN FORTY-EIGHT HOURS OF A REQUEST FOR A HEARING PURSUANT TO PARAGRAPH (A) OF SUBDIVISION FIVE OF THIS SECTION, WHICHEVER IS LATER, HOLD A HEARING AND DETERMINE WHETHER PROBABLE CAUSE EXISTS TO BELIEVE THAT GOODS SEIZED PURSUANT TO SUBDIVI SION ONE OF THIS SECTION WERE MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED OR PRODUCED IN VIOLATION OF THIS ARTICLE. THE HEARING TO MAKE SUCH DETERMINATION SHALL BE CONCLUDED AND SUCH DETERMINATION SHALL BE MADE WITHIN FORTY-EIGHT HOURS AFTER THE COMMENCEMENT OF THE HEARING, PROVIDED THAT FOR GOOD CAUSE THE COURT MAY EXTENT THE TIME WITHIN WHICH TO HOLD OR CONCLUDE SUCH HEARING. 3. (A) IF A HEARING IS REQUIRED PURSUANT TO SUBDIVISION TWO OF THIS SECTION, AND THE COURT, AFTER SUCH HEARING, FINDS THAT NOTICE PURSUANT TO PARAGRAPH (B) OF SUBDIVISION FIVE OF THIS SECTION, IF REQUIRED, HAS BEEN PROVIDED AND THAT PROBABLE CAUSE EXISTS TO BELIEVE THAT SUCH GOODS WERE MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED OR PRODUCED IN VIOLATION OF THIS ARTICLE, THE COURT SHALL AUTHORIZE THAT ALL BUT A REPRESENTATIVE SAMPLE OF SUCH GOODS MAY BE DESTROYED BY THE AGENCY HAVING CUSTODY OF THE SEIZED GOODS. NOTWITHSTANDING THE FOREGOING, IF THE COURT FURTHER FINDS THAT A SUBSTANTIAL ISSUE OF FACT HAS BEEN RAISED WHETHER SUCH GOODS WERE MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIB UTED, OR PRODUCED IN VIOLATION OF THIS ARTICLE, THE COURT SHALL REQUIRE THAT SUCH GOODS BE RETAINED AS EVIDENCE PENDING THE TRIAL OF THE DEFEND ANT OR OTHER DISPOSITION OF THE CRIMINAL PROCEEDINGS INVOLVING THE DEFENDANT. (B) IF A HEARING IS NOT REQUIRED PURSUANT TO SUBDIVISION TWO OF THIS SECTION, THE AGENCY HAVING CUSTODY OF SEIZED GOODS MAY DESTROY ALL BUT A REPRESENTATIVE SAMPLE OF SUCH GOODS IN ACCORDANCE WITH THIS SECTION, PROVIDED THAT NOTICE PURSUANT TO PARAGRAPH (B) OF SUBDIVISION FIVE OF THIS SECTION, IF REQUIRED, HAS BEEN PROVIDED AND ANY TIME FOR REQUESTING SUCH HEARING HAS EXPIRED. 4. PRIOR TO THE DESTRUCTION OF GOODS IN EXCESS OF A REPRESENTATIVE SAMPLE PURSUANT TO SUBDIVISION THREE OF THIS SECTION, THE AGENCY HAVING CUSTODY OF SEIZED GOODS SHALL PHOTOGRAPH, VIDEOTAPE OR OTHERWISE RECORD SUCH GOODS IN A MANNER THAT REASONABLY PORTRAYS THEIR QUANTITY AND CHAR ACTER AND IDENTIFIES THE CASE OR ARREST TO WHICH SUCH GOODS RELATE. WHERE THE GOODS SEIZED CONSIST OF ITEMS OF APPAREL OR FOOTWEAR BEARING A COUNTERFEIT TRADEMARK, WITH THE CONSENT OF THE HOLDER OF THE TRADEMARK THE GOODS MAY BE RELEASED BY SUCH AGENCY HAVING CUSTODY OF SEIZED GOODS TO THE HOLDER OF THE TRADEMARK OR A CHARITABLE ORGANIZATION AUTHORIZED TO RECEIVE SUCH GOODS BY THE HOLDER OF THE TRADEMARK RATHER THAN BEING DESTROYED PURSUANT TO THIS SECTION. SUCH AGENCY SHALL NOT BE REQUIRED TO REMOVE THE COUNTERFEIT TRADEMARK OR OTHERWISE ALTER THE GOODS BEFORE A. 6570 3 RELEASE PURSUANT TO THIS SUBDIVISION. EXCEPT AS PROVIDED IN THIS SUBDI VISION, DESTRUCTION SHALL NOT INCLUDE AUCTION, SALE OR DISTRIBUTION OF THE GOODS IN THEIR ORIGINAL FORM. 5. (A) A PERSON OTHER THAN THE DEFENDANT MAY REQUEST A HEARING IN THE COURT HAVING JURISDICTION OVER A CRIMINAL PROCEEDING RELATING TO THE DEFENDANT TO DETERMINE WHETHER PROBABLE CAUSE EXISTS TO BELIEVE THAT GOODS SEIZED PURSUANT TO SUBDIVISION ONE OF THIS SECTION WERE MANUFAC TURED, SOLD, OFFERED FOR SALE, DISTRIBUTED, OR PRODUCED IN VIOLATION OF THIS ARTICLE BY (I) CALLING THE TELEPHONE NUMBER, AS PROVIDED IN THE NOTICE REQUIRED BY PARAGRAPH (B) OF THIS SUBDIVISION, DURING REGULAR BUSINESS HOURS WITHIN TWO BUSINESS DAYS OF THE DATE OF SUCH NOTICE OR FIVE CALENDAR DAYS OF THE DATE OF THE NOTICE WHERE NOTICE HAS BEEN PROVIDED BY FIRST CLASS MAIL OR HAS BEEN PROVIDED PURSUANT TO CLAUSE (III) OF SUBPARAGRAPH TWO OF PARAGRAPH (B) OF THIS SUBDIVISION, OR (II) CONTACTING THE DESIGNATED PERSON OR UNIT WITHIN THE OFFICE OF THE DISTRICT ATTORNEY IN THE COUNTY WHERE THE GOODS WERE SEIZED DURING REGU LAR BUSINESS HOURS WITHIN TWO BUSINESS DAYS OF THE DATE OF THE SEIZURE, OR FIVE CALENDAR DAYS OF SUCH DATE WHERE NOTICE HAS BEEN PROVIDED BY FIRST CLASS MAIL OR PURSUANT TO CLAUSE (III) OF SUCH SUBPARAGRAPH. SUCH PERSON REQUESTING A HEARING SHALL PROVIDE A SWORN STATEMENT AT OR BEFORE THE HEARING DECLARING THAT HE OR SHE HAS A FINANCIAL OR OWNERSHIP INTER EST IN GOODS THAT ARE THE SUBJECT OF SUCH HEARING. (B) (1) NOTICE REQUIRED PURSUANT TO THIS PARAGRAPH AT A MINIMUM SHALL INDICATE THE FOLLOWING: (I) THAT THE SEIZED GOODS ARE SUBJECT TO DESTRUCTION PURSUANT TO THIS SECTION; (II) THAT ANY PERSON MAY REQUEST A HEARING, AS PROVIDED IN PARAGRAPH (A) OF THIS SUBDIVISION, TO DETERMINE WHETHER PROBABLE CAUSE EXISTS TO BELIEVE THAT THE SEIZED GOODS WERE MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED OR PRODUCED IN VIOLATION OF THIS ARTICLE; (III) THAT SUCH PERSON MUST PROVIDE A SWORN STATEMENT AT OR BEFORE THE HEARING DECLARING THAT HE OR SHE HAS A FINAN CIAL OR OWNERSHIP INTEREST IN THE SEIZED GOODS; AND (IV) THAT FAILURE TO TIMELY REQUEST SUCH HEARING OR PROVIDE SUCH SWORN STATEMENT SHALL BE DEEMED A WAIVER OF THE RIGHT TO CHALLENGE THE DESTRUCTION OF SEIZED GOODS IN ANY CRIMINAL OR CIVIL ACTION OR PROCEEDING. SUCH NOTICE SHALL PROVIDE A TELEPHONE NUMBER THAT A PERSON MAY CALL DURING REGULAR BUSI NESS HOURS TO REQUEST A HEARING. (2) NOTICE REQUIRED PURSUANT TO THIS PARAGRAPH SHALL BE PROVIDED AS FOLLOWS: (I) IF ANY OF THE GOODS TO BE DESTROYED PURSUANT TO SUBDIVISION THREE OF THIS SECTION WERE SEIZED FROM A PREMISES, NOTICE SHALL BE CONSPICUOUSLY AFFIXED TO A DOOR OR OTHER LOCATION REASONABLY CALCULATED TO BE VISIBLE TO A PERSON ENTERING THE AREA FROM WHICH THE GOODS WERE SEIZED; (II) IF ANY SUCH GOODS WERE SEIZED FROM A VEHICLE, NOTICE SHALL BE CONSPICUOUSLY AFFIXED TO THE VEHICLE OR LEFT INSIDE SUCH VEHICLE AND MAILED BY FIRST CLASS MAIL TO THE VEHICLE'S REGISTERED OWNER; AND (III) IF ANY PERSON IS KNOWN TO HAVE A FINANCIAL OR OWNERSHIP INTEREST IN THE SEIZED GOODS, NOTICE SHALL BE PROVIDED BY A MEANS REASONABLY CALCULATED TO CONVEY THE INFORMATION SET FORTH IN SUBPARAGRAPH ONE OF THIS PARA GRAPH. 6. FAILURE OF ANY PERSON TO TIMELY REQUEST A HEARING PURSUANT TO THIS SECTION OR PROVIDE A SWORN STATEMENT AS REQUIRED BY PARAGRAPH (A) OF SUBDIVISION FIVE OF THIS SECTION SHALL BE DEEMED A WAIVER OF SUCH PERSON'S RIGHT TO CHALLENGE THE DESTRUCTION OF ANY SEIZED GOODS IN ANY CRIMINAL OR CIVIL ACTION OR PROCEEDING. 7. UPON FINAL DETERMINATION OF THE CHARGES, THE COURT SHALL, UPON PROPER NOTICE BY THE DISTRICT ATTORNEY OR REPRESENTATIVE OF THE CRIME VICTIM OR VICTIMS, AFTER PRIOR NOTICE TO THE DISTRICT ATTORNEY AND A. 6570 4 CUSTODIAN OF THE SEIZED PROPERTY, ENTER AN ORDER PRESERVING ANY OF THE GOODS MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED OR PRODUCED IN VIOLATION OF THIS ARTICLE, NOT OTHERWISE DESTROYED OR PERMITTED TO BE DESTROYED PURSUANT TO SUBDIVISION THREE OF THIS SECTION, AS EVIDENCE FOR USE IN OTHER CASES, INCLUDING A CIVIL ACTION. THIS NOTICE MUST BE RECEIVED WITHIN THIRTY DAYS OF FINAL DETERMINATION OF THE CHARGES. THE COST OF STORAGE, SECURITY AND DESTRUCTION OF GOODS SO ORDERED FOR PRES ERVATION, OTHER THAN FOR A CIVIL ACTION UNDER ARTICLE THIRTEEN-A OF THE CIVIL PRACTICE LAW AND RULES INITIATED BY THE DISTRICT ATTORNEY, SHALL BE PAID BY THE PARTY SEEKING SUCH PRESERVATION. IF NO SUCH ORDER IS ENTERED WITHIN THE THIRTY DAY PERIOD, SUCH GOODS MAY BE DESTROYED BY THE AGENCY HAVING CUSTODY OF SUCH GOODS. WHERE SUCH GOODS CONSIST OF ITEMS OF APPAREL OR FOOTWEAR BEARING A COUNTERFEIT TRADEMARK, WITH THE CONSENT OF THE HOLDER OF THE TRADEMARK THE GOODS MAY BE RELEASED BY SUCH AGENCY HAVING CUSTODY OF SEIZED GOODS TO THE HOLDER OF THE TRADEMARK OR A CHAR ITABLE ORGANIZATION AUTHORIZED TO RECEIVE SUCH GOODS BY THE HOLDER OF THE TRADEMARK RATHER THAN BEING DESTROYED PURSUANT TO THIS SECTION. SUCH AGENCY SHALL NOT BE REQUIRED TO REMOVE THE COUNTERFEIT TRADEMARK OR OTHERWISE ALTER THE GOODS BEFORE RELEASE PURSUANT TO THIS SUBDIVISION. EXCEPT AS PROVIDED IN THIS SUBDIVISION, DESTRUCTION SHALL NOT INCLUDE AUCTION, SALE OR DISTRIBUTION OF THE GOODS IN THEIR ORIGINAL FORM. 8. EXCEPT AS PROVIDED IN SUBDIVISION SEVEN OF THIS SECTION, NOTHING IN THIS SECTION SHALL PROHIBIT THE DESTRUCTION OR OTHER DISPOSITION, PURSU ANT TO ANY OTHER APPLICABLE PROVISION OF STATE OR LOCAL LAW, OF GOODS SEIZED PURSUANT TO SUBDIVISION ONE OF THIS SECTION WHERE THERE IS NO ONGOING CRIMINAL PROCEEDING THAT HAS BEEN COMMENCED IN RELATION TO SUCH GOODS.
S 4.
Section 420.00 of the penal law is REPEALED and a new section 420.00 is added to read as follows:
S 420.00 SEIZURE AND DESTRUCTION OF UNAUTHORIZED RECORDINGS. 1. ANY ARTICLE MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED OR PRODUCED IN VIOLATION OF ARTICLE TWO HUNDRED SEVENTY-FIVE OF THIS CHAP TER MAY BE SEIZED BY ANY POLICE OFFICER, OR BY ANY PEACE OFFICER ACTING WITHIN HIS OR HER LAWFUL AUTHORITY. 2. IF THE DEFENDANT REQUESTS A HEARING AT ARRAIGNMENT PURSUANT TO SUBDIVISION TEN OF SECTION 170.10, SUBDIVISION SEVEN OF SECTION 180.10 OR SUBDIVISION FOUR OF SECTION 210.15 OF THE CRIMINAL PROCEDURE LAW, OR IF ANY OTHER PERSON TIMELY REQUESTS SUCH A HEARING PURSUANT TO SUBDIVI SION FIVE OF THIS SECTION, THE COURT MUST, WITHIN FORTY-EIGHT HOURS AFTER ARRAIGNMENT OF THE DEFENDANT OR WITHIN FORTY-EIGHT HOURS OF A REQUEST FOR A HEARING PURSUANT TO PARAGRAPH (A) OF SUBDIVISION FIVE OF THIS SECTION, WHICHEVER IS LATER, HOLD A HEARING AND DETERMINE WHETHER PROBABLE CAUSE EXISTS TO BELIEVE THAT THE ARTICLES SEIZED PURSUANT TO SUBDIVISION ONE OF THIS SECTION WERE MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED OR PRODUCED IN VIOLATION OF ARTICLE TWO HUNDRED SEVEN TY-FIVE OF THIS CHAPTER. THE HEARING TO MAKE SUCH DETERMINATION SHALL BE CONCLUDED AND SUCH DETERMINATION SHALL BE MADE WITHIN FORTY-EIGHT HOURS AFTER THE COMMENCEMENT OF THE HEARING, PROVIDED THAT FOR GOOD CAUSE THE COURT MAY EXTEND THE TIME WITHIN WHICH TO HOLD OR CONCLUDE SUCH HEARING OR MAKE SUCH DETERMINATION. 3. (A) IF A HEARING IS REQUIRED PURSUANT TO SUBDIVISION TWO OF THIS SECTION, AND THE COURT, AFTER SUCH HEARING, FINDS THAT NOTICE PURSUANT TO PARAGRAPH (B) OF SUBDIVISION FIVE OF THIS SECTION, IF REQUIRED, HAS BEEN PROVIDED AND THAT PROBABLE CAUSE EXISTS TO BELIEVE THAT SUCH ARTI CLES WERE MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED OR PRODUCED IN VIOLATION OF ARTICLE TWO HUNDRED SEVENTY-FIVE OF THIS CHAPTER, THE A. 6570 5 COURT SHALL AUTHORIZE THAT ALL BUT A REPRESENTATIVE SAMPLE OF SUCH ARTI CLES MAY BE DESTROYED BY THE AGENCY HAVING CUSTODY OF THE SEIZED ARTI CLES. NOTWITHSTANDING THE FOREGOING, IF THE COURT FURTHER FINDS THAT A SUBSTANTIAL ISSUE OF FACT HAS BEEN RAISED WHETHER SUCH ARTICLES WERE MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED, OR PRODUCED IN VIOLATION OF ARTICLE TWO HUNDRED SEVENTY-FIVE OF THIS CHAPTER, THE COURT SHALL REQUIRE THAT SUCH ARTICLES BE RETAINED AS EVIDENCE PENDING THE TRIAL OF THE DEFENDANT OR OTHER DISPOSITION OF THE CRIMINAL PROCEEDINGS INVOLVING THE DEFENDANT. (B) IF A HEARING IS NOT REQUIRED PURSUANT TO SUBDIVISION TWO OF THIS SECTION, THE AGENCY HAVING CUSTODY OF SEIZED GOODS MAY DESTROY ALL BUT A REPRESENTATIVE SAMPLE OF SUCH ARTICLES IN ACCORDANCE WITH THIS SECTION, PROVIDED THAT NOTICE PURSUANT TO PARAGRAPH (B) OF SUBDIVISION FIVE OF THIS SECTION, IF REQUIRED, HAS BEEN PROVIDED AND ANY TIME FOR REQUESTING SUCH HEARING HAS EXPIRED. 4. PRIOR TO THE DESTRUCTION OF ARTICLES IN EXCESS OF A REPRESENTATIVE SAMPLE PURSUANT TO SUBDIVISION THREE OF THIS SECTION, THE AGENCY HAVING CUSTODY OF SEIZED ARTICLES SHALL PHOTOGRAPH, VIDEOTAPE OR OTHERWISE RECORD SUCH ARTICLES IN A MANNER THAT REASONABLY PORTRAYS THEIR QUANTITY AND CHARACTER AND IDENTIFIES THE CASE OR ARREST TO WHICH SUCH ARTICLES RELATE. 5. (A) A PERSON OTHER THAN THE DEFENDANT MAY REQUEST A HEARING IN THE COURT HAVING JURISDICTION OVER A CRIMINAL PROCEEDING RELATING TO THE DEFENDANT TO DETERMINE WHETHER PROBABLE CAUSE EXISTS TO BELIEVE THAT ARTICLES SEIZED PURSUANT TO SUBDIVISION ONE OF THIS SECTION WERE MANU FACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED, OR PRODUCED IN VIOLATION OF ARTICLE TWO HUNDRED SEVENTY-FIVE OF THIS CHAPTER BY (I) CALLING THE TELEPHONE NUMBER, AS PROVIDED IN THE NOTICE REQUIRED BY PARAGRAPH (B) OF THIS SUBDIVISION, DURING REGULAR BUSINESS HOURS WITHIN TWO BUSINESS DAYS OF THE DATE OF SUCH NOTICE OR WITHIN FIVE CALENDAR DAYS OF SUCH DATE WHERE NOTICE HAS BEEN PROVIDED BY FIRST CLASS MAIL OR PURSUANT TO CLAUSE (III) OF SUBPARAGRAPH TWO OF PARAGRAPH (B) OF THIS SUBDIVISION, OR (II) CONTACTING THE DESIGNATED PERSON OR UNIT WITHIN THE OFFICE OF THE DISTRICT ATTORNEY IN THE COUNTY WHERE THE ARTICLES WERE SEIZED DURING REGULAR BUSINESS HOURS WITHIN TWO BUSINESS DAYS OF THE DATE OF THE SEIZURE, OR WITHIN FIVE CALENDAR DAYS OF SUCH DATE WHERE NOTICE HAS BEEN PROVIDED BY FIRST CLASS MAIL OR PURSUANT TO CLAUSE (III) OF SUCH SUBPAR AGRAPH. SUCH PERSON REQUESTING A HEARING SHALL PROVIDE A SWORN STATEMENT AT OR BEFORE THE HEARING DECLARING THAT HE OR SHE HAS A FINANCIAL OR OWNERSHIP INTEREST IN ARTICLES THAT ARE THE SUBJECT OF SUCH HEARING. (B) (1) NOTICE REQUIRED PURSUANT TO THIS PARAGRAPH AT A MINIMUM SHALL INDICATE THE FOLLOWING: (I) THAT THE SEIZED ARTICLES ARE SUBJECT TO DESTRUCTION PURSUANT TO THIS SECTION; (II) THAT ANY PERSON MAY REQUEST A HEARING, AS PROVIDED IN PARAGRAPH (A) OF THIS SUBDIVISION, TO DETERMINE WHETHER PROBABLE CAUSE EXISTS TO BELIEVE THAT THE SEIZED ARTICLES WERE MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED OR PRODUCED IN VIOLATION OF ARTICLE TWO HUNDRED SEVENTY-FIVE OF THIS CHAPTER; (III) THAT SUCH PERSON MUST PROVIDE A SWORN STATEMENT AT OR BEFORE THE HEARING DECLARING THAT HE OR SHE HAS A FINANCIAL OR OWNERSHIP INTEREST IN THE SEIZED ARTICLES; AND (IV) THAT FAILURE TO TIMELY REQUEST SUCH HEARING OR PROVIDE SUCH SWORN STATEMENT SHALL BE DEEMED A WAIVER OF THE RIGHT TO CHALLENGE THE DESTRUCTION OF SEIZED ARTICLES IN ANY CRIMINAL OR CIVIL ACTION OR PROCEEDING. SUCH NOTICE SHALL PROVIDE A TELEPHONE NUMBER THAT A PERSON MAY CALL DURING REGULAR BUSINESS HOURS TO REQUEST A HEARING. (2) NOTICE REQUIRED PURSUANT TO THIS PARAGRAPH SHALL BE PROVIDED AS FOLLOWS: (I) IF ANY OF THE ARTICLES TO BE DESTROYED PURSUANT TO SUBDIVI A. 6570 6 SION THREE OF THIS SECTION WERE SEIZED FROM A PREMISES, NOTICE SHALL BE CONSPICUOUSLY AFFIXED TO A DOOR OR OTHER LOCATION REASONABLY CALCULATED TO BE VISIBLE TO A PERSON ENTERING THE AREA FROM WHICH THE ARTICLES WERE SEIZED; (II) IF ANY SUCH ARTICLES WERE SEIZED FROM A VEHICLE, NOTICE SHALL BE CONSPICUOUSLY AFFIXED TO THE VEHICLE OR LEFT INSIDE SUCH VEHI CLE AND MAILED BY FIRST CLASS MAIL TO THE VEHICLE'S REGISTERED OWNER; AND (III) IF ANY PERSON IS KNOWN TO HAVE A FINANCIAL OR OWNERSHIP INTER EST IN THE SEIZED GOODS, NOTICE SHALL BE PROVIDED BY A MEANS REASONABLY CALCULATED TO CONVEY THE INFORMATION SET FORTH IN SUBPARAGRAPH ONE OF THIS PARAGRAPH. 6. FAILURE OF ANY PERSON TO TIMELY REQUEST A HEARING PURSUANT TO THIS SECTION OR PROVIDE A SWORN STATEMENT AS REQUIRED BY PARAGRAPH (A) OF SUBDIVISION FIVE OF THIS SECTION SHALL BE DEEMED A WAIVER OF SUCH PERSON'S RIGHT TO CHALLENGE THE DESTRUCTION OF ANY SEIZED ARTICLES IN ANY CRIMINAL OR CIVIL ACTION OR PROCEEDING. 7. UPON FINAL DETERMINATION OF THE CHARGES, THE COURT SHALL, UPON PROPER NOTICE BY THE DISTRICT ATTORNEY OR REPRESENTATIVE OF THE CRIME VICTIM OR VICTIMS, AFTER PRIOR NOTICE TO THE DISTRICT ATTORNEY AND CUSTODIAN OF THE SEIZED PROPERTY, ENTER AN ORDER PRESERVING ANY OF THE ARTICLES MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED OR PRODUCED IN VIOLATION OF ARTICLE TWO HUNDRED SEVENTY-FIVE OF THIS CHAPTER, NOT OTHERWISE DESTROYED OR PERMITTED TO BE DESTROYED PURSUANT TO SUBDIVISION THREE OF THIS SECTION, AS EVIDENCE FOR USE IN OTHER CASES, INCLUDING A CIVIL ACTION. THIS NOTICE MUST BE RECEIVED WITHIN THIRTY DAYS OF FINAL DETERMINATION OF THE CHARGES. THE COST OF STORAGE, SECURITY AND DESTRUCTION OF ARTICLES SO ORDERED FOR PRESERVATION, OTHER THAN FOR A CIVIL ACTION UNDER ARTICLE THIRTEEN-A OF THE CIVIL PRACTICE LAW AND RULES INITIATED BY THE DISTRICT ATTORNEY, SHALL BE PAID BY THE PARTY SEEKING SUCH PRESERVATION. IF NO SUCH ORDER IS ENTERED WITHIN THE THIRTY DAY PERIOD, SUCH ARTICLES MAY BE DESTROYED BY THE AGENCY HAVING CUSTODY OF SUCH ARTICLES. DESTRUCTION SHALL NOT INCLUDE AUCTION, SALE OR DISTRIBUTION OF THE ARTICLES IN THEIR ORIGINAL FORM. 8. EXCEPT AS PROVIDED IN SUBDIVISION SEVEN OF THIS SECTION, NOTHING IN THIS SECTION SHALL PROHIBIT THE DESTRUCTION OR OTHER DISPOSITION, PURSU ANT TO ANY OTHER APPLICABLE PROVISION OF STATE OR LOCAL LAW, OR ARTICLES SEIZED PURSUANT TO SUBDIVISION ONE OF THIS SECTION, WHERE THERE IS NO ONGOING CRIMINAL PROCEEDING THAT HAS BEEN COMMENCED IN RELATION TO SUCH ARTICLES. 9. FOR PURPOSES OF THIS SECTION, THE TERM "REPRESENTATIVE SAMPLE" MEANS A MINIMUM OF ONE HUNDRED TWENTY-FIVE PERCENT OF THE AMOUNT OF ARTICLES THAT IS REQUIRED TO SUBSTANTIATE THE HIGHEST DEGREE OF THE OFFENSE THAT MAY BE CHARGED IN THE ACCUSATORY INSTRUMENT.
S 5.
Section 170.10 of the criminal procedure law is amended by adding a new subdivision 10 to read as follows:
10. WHERE A VIOLATION OF SECTION 165.71, 275.05, 275.15, 275.25 OR 275.35 OF THE PENAL LAW IS ALLEGED, THE COURT SHALL INFORM THE DEFENDANT AT ARRAIGNMENT THAT (A) HE OR SHE MAY REQUEST A HEARING TO DETERMINE WHETHER PROBABLE CAUSE EXISTS TO BELIEVE THAT ANY SEIZED GOODS OR ARTI CLES THAT ARE THE SUBJECT OF SUCH ALLEGED VIOLATION WERE MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED OR PRODUCED IN VIOLATION OF ANY SUCH SECTION, AND (B) FAILURE TO REQUEST SUCH A HEARING AT ARRAIGNMENT SHALL BE DEEMED A WAIVER OF SUCH DEFENDANT'S RIGHT TO CHALLENGE THE DESTRUCTION OF THE GOODS OR ARTICLES PURSUANT TO SECTION 165.74 OR 420.00 OF THE PENAL LAW IN ANY CRIMINAL OR CIVIL ACTION OR PROCEEDING. SUCH HEARING SHALL BE CONDUCTED IN ACCORDANCE WITH SECTION 165.74 OF THE PENAL LAW, WITH RESPECT TO A VIOLATION OF SECTION 165.71 OF SUCH LAW, OR A. 6570 7 SECTION 420.00 OF THE PENAL LAW, WITH RESPECT TO ANY VIOLATION OF SECTION 275.05, 275.15, 275.25 OR 275.35 OF SUCH LAW.
S 6.
Section 180.10 of the criminal procedure law is amended by adding a new subdivision 7 to read as follows:
7. WHERE A VIOLATION OF SECTION 165.71, 165.72, 165.73, 275.05, 275.10, 275.15, 275.20, 275.25, 275.30, 275.35 OR 275.40 OF THE PENAL LAW IS ALLEGED, THE COURT SHALL INFORM THE DEFENDANT AT ARRAIGNMENT THAT (A) HE OR SHE MAY REQUEST A HEARING TO DETERMINE WHETHER PROBABLE CAUSE EXISTS TO BELIEVE THAT ANY SEIZED GOODS OR ARTICLES THAT ARE THE SUBJECT OF SUCH ALLEGED VIOLATION WERE MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED OR PRODUCED IN VIOLATION OF ANY SUCH SECTION, AND (B) FAIL URE TO REQUEST SUCH A HEARING AT ARRAIGNMENT SHALL BE DEEMED A WAIVER OF SUCH DEFENDANT'S RIGHT TO CHALLENGE THE DESTRUCTION OF THE GOODS OR ARTICLES PURSUANT TO SECTION 165.74 OR 420.00 OF THE PENAL LAW IN ANY CRIMINAL OR CIVIL ACTION OR PROCEEDING. SUCH HEARING SHALL BE CONDUCTED IN ACCORDANCE WITH SECTION 165.74 OF THE PENAL LAW, WITH RESPECT TO A VIOLATION OF SECTION 165.72 OR 165.73 OF SUCH LAW, OR SECTION 420.00 OF THE PENAL LAW, WITH RESPECT TO ANY VIOLATION OF SECTION 275.10, 275.20, 275.30 OR 275.40 OF SUCH LAW.
S 7.
Section 210.15 of the criminal procedure law is amended by adding a new subdivision 4 to read as follows:
4. WHERE A VIOLATION OF SECTION 165.71, 165.72, 165.73, 275.05, 275.10, 275.15, 275.20, 275.25, 275.30, 275.35 OR 275.40 OF THE PENAL LAW IS ALLEGED, THE COURT SHALL INFORM THE DEFENDANT AT ARRAIGNMENT THAT (A) HE OR SHE MAY REQUEST A HEARING TO DETERMINE WHETHER PROBABLE CAUSE EXISTS TO BELIEVE THAT ANY SEIZED GOODS OR ARTICLES THAT ARE THE SUBJECT OF SUCH ALLEGED VIOLATION WERE MANUFACTURED, SOLD, OFFERED FOR SALE, DISTRIBUTED OR PRODUCED IN VIOLATION OF ANY SUCH SECTION, AND (B) FAIL URE TO REQUEST SUCH A HEARING AT ARRAIGNMENT SHALL BE DEEMED A WAIVER OF SUCH DEFENDANT'S RIGHT TO CHALLENGE THE DESTRUCTION OF THE GOODS OR ARTICLES PURSUANT TO SECTION 165.74 OR 420.00 OF THE PENAL LAW IN ANY CRIMINAL OR CIVIL ACTION OR PROCEEDING. SUCH HEARING SHALL BE CONDUCTED IN ACCORDANCE WITH SECTION 165.74 OF THE PENAL LAW, WITH RESPECT TO A VIOLATION OF SECTION 165.71, 165.72 OR 165.73 OF SUCH LAW, OR SECTION 420.00 OF THE PENAL LAW, WITH RESPECT TO ANY VIOLATION OF SECTION 275.05, 275.10, 275.15, 275.20, 275.25, 275.30, 275.35 OR 275.40 OF SUCH LAW.
S 8. This act shall take effect on the ninetieth day after it shall have become a law.
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