Relates to the powers and duties of enforcement officers.
Ayes (10): Grisanti, LaValle, Little, Maziarz, O'Mara, Young, Espaillat, Oppenheimer, Serrano, Stewart-Cousins
Ayes W/R (2): Johnson, Perkins
Nays (1): Avella
Excused (1): Marcellino
TITLE OF BILL: An act to amend the environmental conservation law, in relation to the powers and duties of enforcement officers
PURPOSE: Relates to the powers and duties of enforcement officers.
SUMMARY OF PROVISIONS: Paragraphs e and f of subdivision 4 of Section 71-0907 of the Environmental Conservation Law are amended to eliminate statutory warrantless seizures of fish or fishing gear as part of an enforcement action.
JUSTIFICATION: The current process as provided by the Environmental Conservation Law authorizes the Department of Environmental Conservation (DEC) to enforce specific provisions of the Fish and Wildlife Law.
Paragraphs e and f of subdivision 4 of Section 71-0907 of the Environmental Conservation Law authorizes designated officers to seize fish or fishing hear without a warrant. As such, the DEC serves at the police, the prosecutor, the judge and the jury, all before the case ever gets to C01111, leaving accused fishermen or wholesalers with no process to contest these seizures. In some situations, such confiscations can run into the thousands of dollars.
This legislation would no longer authorize blanket warrantless seizures of fish or fishing gear as all citizens are entitled to some due process of law under the Constitution. Enactment of this legislation would not hinder prosecution of illegal activity, but would insure that the rights of fishermen are protected.
LEGISLATIVE HISTORY: New legislation.
FISCAL IMPLICATIONS: To be determined.
EFFECTIVE DATE: Immediately.
STATE OF NEW YORK ________________________________________________________________________ S. 6876 A. 9751 S E N A T E - A S S E M B L Y April 2, 2012 ___________IN SENATE -- Introduced by Sens. LAVALLE, ZELDIN -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conservation IN ASSEMBLY -- Introduced by M. of A. THIELE -- read once and referred to the Committee on Environmental Conservation AN ACT to amend the environmental conservation law, in relation to the powers and duties of enforcement officers THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraphs e and f of subdivision 4 of section 71-0907 of the environmental conservation law, subparagraph 5 of paragraph f as added by chapter 366 of the laws of 1981, are amended to read as follows: e. To seize as evidence
[without warrant]any fish, shellfish, crusta- cea, wildlife, game, or parts thereof, protected insects or plumage [as defined in section 11-1729,]whenever they have cause to believe it is possessed or transported in violation of law, or it bears evidence of illegal taking, or it is possessed or transported under circumstances making the possession or transportation presumptive evidence of illegal taking; f. To seize as evidence [without warrant](1) Any net, trap or other device constituting a nuisance as defined in section 71-0915 OF THIS TITLE; (2) Any net, trap or device other than a boat, a vehicle, or aircraft or a firearm when they have cause to believe that its possession or use is in violation of any provision of the Fish and Wildlife Law or regu- lation pursuant thereto; (3) Any firearm, when they have cause to believe that it has been used in a violation of the Fish and Wildlife Law constituting a misdemeanor involving the illegal taking or attempting to take wild deer; (4) Any rakes, tongs, dredges, or device other than a boat or vehicle used, or in possession for purpose of use, for the taking of shellfish in violation of [subdivisions]SUBDIVISION 1 or 2 of section 13-0309 OFEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15147-02-2 S. 6876 2 A. 9751
THIS CHAPTER. For the purposes of this paragraph "device" includes a bird, dog, or other animal used in or as an aid in taking fish or wild- life, any jack light, spot light or other artificial light other than a headlight attached in proper position to a motor vehicle, any hunting appliance or apparatus and any fishing or netting gear or tackle. This paragraph does not limit any power of seizure pursuant to warrant. (5) Any boat or vehicle, when they have probable cause to believe it has been used for the taking of shellfish in violation of subdivision 2 or 3 of section 13-0309 of this chapter by a person possessing, at the time of such use, commercial shellfish harvesting gear or shellfish in excess of two pecks. For the purposes of this subparagraph "commercial shellfish harvesting gear" shall mean rakes, tongs, dredges and other devices commonly used to harvest shellfish for commercial purposes. S 2. This act shall take effect immediately.