NY State Senate Bill 2011-S4147

Senate Bill S4147

2011-2012 Legislative Session

Entitles law enforcement agencies for restitution for the costs of storage and destruction of goods or articles seized with arrests for trademark conterfeiting; repealer

download bill text pdf

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 04, 2012	referred to codes returned to senate died in assembly
Jun 20, 2011	referred to codes delivered to assembly passed senate
Jun 01, 2011	advanced to third reading
May 25, 2011	2nd report cal.
May 24, 2011	1st report cal.804
Mar 21, 2011	referred to codes

Votes

- Jun 20, 2011 - Floor Vote
  S4147
  
  62
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 20, 2011
      
      aye (62)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Avella
      
      Ball
      
      Bonacic
      
      Breslin
      
      Carlucci
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Duane
      
      Espaillat
      
      Farley
      
      Flanagan
      
      Fuschillo
      
      Gallivan
      
      Gianaris
      
      Golden
      
      Griffo
      
      Grisanti
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Kennedy
      
      Klein
      
      Krueger
      
      Kruger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Libous
      
      Little
      
      Marcellino
      
      Martins
      
      Maziarz
      
      McDonald
      
      Montgomery
      
      Nozzolio
      
      O'Mara
      
      Oppenheimer
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Saland
      
      Sampson
      
      Savino
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stavisky
      
      Stewart-Cousins
      
      Valesky
      
      Young
      
      Zeldin
  May 24, 2011 - Codes Committee Vote
  S4147
  
  10
  
  Aye
  
  1
  
  Nay
  
  5
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Codes Committee Vote: May 24, 2011
      
      aye (10)
      
      Espaillat
      
      Flanagan
      
      Fuschillo
      
      Gianaris
      
      Golden
      
      Lanza
      
      Nozzolio
      
      O'Mara
      
      Saland
      
      Squadron
      
      nay (1)
      
      Parker
      
      aye wr (5)
      
      DeFrancisco
      
      Duane
      
      Gallivan
      
      Huntley
      
      Perkins

co-Sponsors

2011-S4147 (ACTIVE) - Details

See Assembly Version of this Bill:: A6570
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§60.27 & 165.70, rpld & add §§165.74 & 420.00, Pen L; amd §§170.10, 180.10 & 210.15, CP L

2011-S4147 (ACTIVE) - Summary

Entitles law enforcement agencies to restitution for the costs of storage and destruction of goods or articles seized with arrests for trademark counterfeiting.

2011-S4147 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4147

TITLE OF BILL:
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

SUMMARY OF PROVISIONS:
Section 1 of the bill would amend Penal Law
("PL") § 60.27 to entitle law enforcement agencies to restitution
when they have incurred costs attended to the storage and/or
destruction of goods or articles seized in connection with arrests
for first, second or third degree trademark counterfeiting.

Section 2 of the bill would add a definition of "representative
sample" to PL § 165.70, the section that defines several terms
related to trademark counterfeiting offenses.

Section 3 of the bill would repeal and re-enact PL § 165.74, to be
entitled "Seizure and destruction of goods bearing counterfeit
trademarks." This comprehensive section details the procedures to be
followed for the destruction of a representative sample of goods
bearing counterfeit trademarks, including notice to the defendant;
hearings to be held upon request of the defendant; the steps that

must be taken to photograph, videotape or otherwise record such goods;
and preservation of goods after the final determination of the charges.

Section 4 of the bill would repeal and re-enact PL § 420.00, "Seizure
and destruction of unauthorized recordings", which would delineate
procedures for destroying representative samples of unauthorized
recordings, ones analogous to the protocols that would be established
with respect to goods bearing counterfeit trademarks as set forth in
section 3 of the bill.

Finally, sections 5, 6 and 7 of the bill would make conforming changes
to Criminal Procedure Law sections 170.10, 180.10, and 210.15
regarding arraignment and the right to a hearing afforded to
defendants accused of violating misdemeanor and felony laws relating
to counterfeit trademarks and unauthorized recordings.

REASONS FOR SUPPORT:
This City proposes to amend the Penal Law and the
Criminal Procedure Law to allow for the destruction, after notice and
an opportunity for a hearing, of all but a representative sample of
seized counterfeit trademark goods or unauthorized recordings.

In lieu of destruction, where the seized goods consist of items of
apparel or footwear, such goods could be released to the trademark
holder or a charitable organization, with the consent of the
trademark holder.

This bill is intended to help law enforcement officials effectively
combat the trade in counterfeit trademarks and unauthorized
recordings. The New York City Police Department has limited


facilities to store goods bearing a counterfeit trademark and
unauthorized recordings after they are seized. Because of such
limitations, law enforcement personnel have had to delay operations
to seize additional goods until storage space becomes available.
Seized goods are often bulky in nature (e.g., apparel and footwear)
and are often seized in great quantity, and prolonged retention of
such illegal material requires excessive storage capacity within
limited space. The NYPD has had to maintain as many as 200 trailers
holding nearly 3,000 tons of these seized goods for an extended
period of time.

Accordingly, the Mayor urges the earliest possible favorable
consideration of this proposal by the Legislature.

EFFECTIVE DATE:
This act shall take effect on the ninetieth day after becoming a law.

2011-S4147 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4147

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 21, 2011
                               ___________

Introduced  by  Sens.  GRIFFO, GOLDEN -- read twice and ordered printed,
  and when printed to be committed to the Committee 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

S. 4147                             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

S. 4147                             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

S. 4147                             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

S. 4147                             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-

S. 4147                             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

S. 4147                             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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Senate Bill S4147

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Sponsored By

Joseph A. Griffo