Bill Text: NY A07545 | 2013-2014 | General Assembly | Introduced
Bill Title: Relates to the enforcement of state and city taxes on cigarettes and the regulation of tobacco products.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced - Dead) 2014-01-08 - referred to codes [A07545 Detail]
Download: New_York-2013-A07545-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
7545
2013-2014 Regular Sessions
I N A S S E M B L Y
May 23, 2013
___________
Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
tee on Codes
AN ACT to amend the criminal procedure law, the New York city criminal
court act, the New York city charter, and the administrative code of
the city of New York, in relation to the enforcement of the state and
New York city cigarette taxes and other New York city taxes and the
regulation of cigarettes and tobacco products
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 34 of section 1.20 of the criminal procedure
2 law is amended by adding a new paragraph (w) to read as follows:
3 (W) THE SHERIFF, UNDERSHERIFF AND DEPUTY SHERIFFS OF NEW YORK CITY AND
4 EMPLOYEES OF THE NEW YORK CITY DEPARTMENT OF FINANCE DESCRIBED IN SUBDI-
5 VISION FIVE OF SECTION 2.10 OF THIS TITLE RESPONSIBLE FOR THE ENFORCE-
6 MENT OF LAWS RELATING TO THE TAX ON CIGARETTES AND TOBACCO PRODUCTS
7 CONTAINED IN ARTICLE TWENTY AND SECTION EIGHTEEN HUNDRED FOURTEEN OF THE
8 TAX LAW, THE NEW YORK CITY CIGARETTE TAX CONTAINED IN CHAPTERS THIRTEEN
9 AND FORTY OF TITLE ELEVEN OF THE ADMINISTRATIVE CODE OF THE CITY OF NEW
10 YORK, AND ANY OTHER LAW RELATING TO THE NEW YORK CITY CIGARETTE TAX OR
11 THE TAX ON CIGARETTES AND TOBACCO PRODUCTS, FOR PURPOSES OF:
12 A. EXECUTING A WARRANT OF ARREST UNDER ARTICLE ONE HUNDRED TWENTY OF
13 THIS CHAPTER;
14 B. PROCURING AND SERVING A SUMMONS PURSUANT TO ARTICLE ONE HUNDRED
15 THIRTY OF THIS CHAPTER;
16 C. ISSUING AND SERVING AN APPEARANCE TICKET PURSUANT TO ARTICLE ONE
17 HUNDRED FIFTY OF THIS CHAPTER;
18 D. EXECUTING A BENCH WARRANT PURSUANT TO SECTION 530.70 OF THIS CHAP-
19 TER;
20 E. EXECUTING A MATERIAL WITNESS WARRANT PURSUANT TO SECTION 620.70 OF
21 THIS CHAPTER; AND
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10957-02-3
A. 7545 2
1 F. APPLYING FOR AND EXECUTING SEARCH WARRANTS UNDER ARTICLE SIX
2 HUNDRED NINETY OF THIS CHAPTER.
3 S 2. Subdivision 5 of section 2.10 of the criminal procedure law, as
4 added by chapter 843 of the laws of 1980, is amended to read as follows:
5 5. Employees of the New York city department of finance assigned BY
6 THE COMMISSIONER OF FINANCE to enforcement of [the tax on cigarettes
7 imposed by title D of chapter forty-six of the administrative code of
8 the city of New York by the commissioner of finance]:
9 (A) LAWS RELATING TO NEW YORK CITY TAXES CONTAINED IN TITLE ELEVEN OF
10 THE ADMINISTRATIVE CODE OF THE CITY OF NEW YORK ADMINISTERED BY THE
11 DEPARTMENT OF FINANCE; AND
12 (B) ANY STATE OR LOCAL LAW CONCERNING CIGARETTES OR TOBACCO PRODUCTS.
13 S 3. Subdivision 15 of section 58 of the New York city criminal court
14 act, as amended by chapter 843 of the laws of 1980, is amended to read
15 as follows:
16 (15) Where an appearance ticket has been served by an officer or
17 employee of the department of taxation and finance of the state of New
18 York[, or by an employee of the New York city department of finance] who
19 is a peace officer under the provisions of section 2.10 of the criminal
20 procedure law, in lieu of arrest as authorized by article one hundred
21 fifty of the criminal procedure law, in cases relating to enforcement of
22 the tax on cigarettes imposed by article twenty of the tax law [or by
23 title D of chapter forty-six of the administrative code of the city of
24 New York], any officer or employee of the state department of taxation
25 and finance assigned to act in the capacity of director of special
26 investigations, principal special tax investigator, associate special
27 tax investigator, supervising excise tax examiner or supervising excise
28 tax investigator[, and in the city of New York, the assistant commis-
29 sioner, chief of special investigations, or deputy chief of special
30 investigations employed by the New York city department of finance] is
31 empowered, upon written authorization of the commissioner of taxation
32 and finance [or the commissioner of finance of the city of New York], a
33 copy of which shall be filed with the court in the manner provided by
34 rule or order of court, to administer to such officers all necessary
35 oaths in connection with the execution of the accusatory instrument to
36 be presented in court by such officers in the prosecution of such
37 offense. The total number of New York state officers or employees
38 authorized to administer oaths pursuant to this subdivision shall not
39 exceed fifteen.
40 S 4. Section 58 of the New York city criminal court act is amended by
41 adding two new subdivisions 21 and 22 to read as follows:
42 (21) WHERE AN APPEARANCE TICKET HAS BEEN SERVED BY A MEMBER OF THE
43 OFFICE OF THE SHERIFF OF THE CITY OF NEW YORK WHO IS A PEACE OFFICE
44 UNDER SUBDIVISION TWO OF SECTION 2.10 OF THE CRIMINAL PROCEDURE LAW, IN
45 LIEU OF AN ARREST IN CASES AUTHORIZED BY ARTICLE ONE HUNDRED FIFTY OF
46 THE CRIMINAL PROCEDURE LAW, A SERGEANT DEPUTY SHERIFF, A LIEUTENANT
47 DEPUTY SHERIFF, UNDERSHERIFF OR SHERIFF OF SUCH OFFICE IS AUTHORIZED TO
48 ADMINISTER TO SUCH PEACE OFFICER ALL NECESSARY OATHS IN CONNECTION WITH
49 THE EXECUTION OF THE ACCUSATORY INSTRUMENT TO BE PRESENTED IN COURT BY
50 SUCH PEACE OFFICER IN THE PROSECUTION OF SUCH OFFENSE.
51 (22) WHERE AN APPEARANCE TICKET HAS BEEN SERVED BY AN EMPLOYEE OF THE
52 NEW YORK CITY DEPARTMENT OF FINANCE WHO IS A PEACE OFFICER UNDER SUBDI-
53 VISION FIVE OF SECTION 2.10 OF THE CRIMINAL PROCEDURE LAW, IN LIEU OF AN
54 ARREST IN CASES AUTHORIZED BY ARTICLE ONE HUNDRED FIFTY OF THE CRIMINAL
55 PROCEDURE LAW, THE DEPUTY COMMISSIONER, ASSISTANT COMMISSIONER, DIRECTOR
56 OF TAX ENFORCEMENT OR ANY OTHER SUPERVISOR OF SUCH PEACE OFFICER
A. 7545 3
1 EMPLOYED BY THE DEPARTMENT OF FINANCE, IS EMPOWERED, UPON WRITTEN
2 AUTHORIZATION OF THE COMMISSIONER OF FINANCE OF THE CITY OF NEW YORK, A
3 COPY OF WHICH SHALL BE FILED WITH THE COURT IN A MANNER PROVIDED BY RULE
4 OR ORDER OF THE COURT, TO ADMINISTER TO SUCH PEACE OFFICER ALL NECESSARY
5 OATHS IN CONNECTION WITH THE EXECUTION OF THE ACCUSATORY INSTRUMENT TO
6 BE PRESENTED IN COURT BY SUCH PEACE OFFICER IN THE PROSECUTION OF SUCH
7 OFFENSE.
8 S 5. Subdivision a of section 168 of the charter of the city of New
9 York, as amended by local law number 59 of the city of New York for the
10 year 2007, is amended to read as follows:
11 a. An independent tax appeals tribunal is hereby established. Such
12 tribunal shall be within the office of administrative tax appeals estab-
13 lished under section one hundred fifty of this charter. The tribunal
14 shall have jurisdiction to hear and determine cases initiated by the
15 filing of petitions protesting notices issued by the commissioner of
16 finance, which give a person the right to a hearing, including, but not
17 limited to, any notice of determination of tax due, of a tax deficiency,
18 of a denial of a refund or credit application [or of the refusal to
19 grant, the suspension or the revocation of a license issued pursuant to
20 chapter thirteen of title eleven of the administrative code], which
21 notices relate to nonproperty taxes, excise taxes and annual vault
22 charges imposed by the city, except those taxes and charges administered
23 by the State of New York on behalf of the City of New York. For purposes
24 of the preceding sentence, if the commissioner of finance fails to act
25 with respect to a refund application before the expiration of the time
26 period after which the taxpayer may file a petition for refund with the
27 tribunal pursuant to subdivision (c) of section 11-529 or subdivision
28 three of section 11-680 of the administrative code, such failure shall
29 be deemed to be a notice of denial of a refund issued by the commission-
30 er of finance pursuant to such subdivision. The tribunal shall review
31 petitions and other documents submitted to it, hold hearings, and render
32 decisions as provided in this chapter. In rendering its decisions on
33 claims asserted by taxpayers or the commissioner of finance, the tribu-
34 nal shall have the same power and authority as the commissioner of
35 finance to impose, modify or waive any taxes within its jurisdiction,
36 interest thereon, and any applicable civil penalties. In appeals in
37 which the rules of the commissioner of finance are at issue, the tribu-
38 nal shall have the power and authority to rule on the legality of such
39 rules.
40 S 6. Subdivision a of section 11-124 of the administrative code of the
41 city of New York, as added by chapter 808 of the laws of 1992, is
42 amended to read as follows:
43 a. The commissioner of finance may establish a procedure for providing
44 conciliation conferences for purposes of settling contested determi-
45 nations of taxes or charges or denials of refunds or credits with
46 respect to taxes or charges imposed under chapter five, six, seven,
47 eight, nine, eleven, twelve, thirteen, fourteen, fifteen, twenty-one,
48 twenty-two, twenty-four, twenty-five or twenty-seven of this title[, or
49 for the purpose of settling disputes arising from the notification of
50 the refusal to grant, the suspension or the revocation of a license
51 issued pursuant to chapter thirteen of this title]. If such a procedure
52 is established, a conciliation conference shall be provided at the
53 option of any taxpayer or any other person subject to the provisions of
54 any of such chapters. For purposes of this subdivision, if the commis-
55 sioner of finance fails to act with respect to a refund application
56 before the expiration of the time period after which the taxpayer may
A. 7545 4
1 file a petition for refund with the tax appeals tribunal established by
2 section one hundred sixty-eight of the charter pursuant to subdivision
3 (c) of section 11-529 or subdivision three of section 11-680 of the
4 code, such failure shall be deemed to be the denial of a refund.
5 S 7. Paragraphs 2 and 4 of subdivision d of section 11-1303 of the
6 administrative code of the city of New York, as amended by local law
7 number 2 of the city of New York for the year 2000, are amended to read
8 as follows:
9 (2) The commissioner of finance may also suspend or revoke a wholesale
10 cigarette license IN ACCORDANCE WITH THE REQUIREMENTS OF ANY OTHER
11 SECTION OF THIS CODE or any rules promulgated thereunder which author-
12 izes the suspension or revocation of a wholesale cigarette license.
13 (4) Upon suspending or revoking any wholesale cigarette license, the
14 commissioner of finance shall direct the holder thereof to surrender to
15 the commissioner of finance immediately all wholesale cigarette licenses
16 or duplicates thereof issued to such holder and the holder shall surren-
17 der promptly all such licenses to the commissioner of finance as
18 directed. Before the commissioner of finance suspends or revokes a
19 wholesale cigarette license or notifies the commissioner of consumer
20 affairs of a finding of a violation of this chapter with respect to a
21 retail cigarette license pursuant to paragraph (1) of this subdivision,
22 he or she shall notify the holder and PROVIDE the holder [shall be enti-
23 tled to a hearing, if desired, if the holder, within ninety days from
24 the date of such notification, or, if the commissioner of finance has
25 established a conciliation procedure pursuant to section 11-124 of the
26 code and the taxpayer has requested a conciliation conference in accord-
27 ance therewith, within ninety days from the mailing of a conciliation
28 decision or the date of the commissioner's confirmation of the discon-
29 tinuance of the conciliation proceeding, both (A) serves a petition upon
30 the commissioner of finance and (B) files a petition with the tax
31 appeals tribunal for] WITH a hearing. After such hearing, the commis-
32 sioner of finance, good cause appearing therefor, may suspend or revoke
33 the wholesale cigarette license, and, in the case of a retail cigarette
34 license, notify the commissioner of consumer affairs of a violation of
35 this chapter or any rules promulgated thereunder. Upon such notifica-
36 tion, the commissioner of consumer affairs may suspend or revoke a
37 retail cigarette license as provided in subdivision b of section 20-206
38 of the code. The commissioner of finance may, by rule, provide for
39 granting a similar hearing to an applicant who has been refused a whole-
40 sale cigarette license by the commissioner of finance.
41 S 8. Subdivision 1 of section 11-1308 of the administrative code of
42 the city of New York is amended to read as follows:
43 1. To make, adopt and amend rules and regulations appropriate to the
44 carrying out of this chapter and the purposes thereof; [and] to require
45 the filing of reports AND THE SUBMISSION OF OTHER DATA by agents and/or
46 WHOLESALE AND RETAIL dealers IN AN ELECTRONIC FORM; AND TO IMPOSE PENAL-
47 TIES OF UP TO TWO THOUSAND FIVE HUNDRED DOLLARS FOR THE FAILURE TO FILE
48 SUCH REPORTS OR SUBMIT SUCH DATA;
49 S 9. Section 11-1308 of the administrative code of the city of New
50 York is amended by adding a new subdivision 12 to read as follows:
51 12. TO DESIGNATE HEARING OFFICERS OR AN ADMINISTRATIVE TRIBUNAL TO
52 CONDUCT ANY HEARING PROVIDED FOR UNDER THIS CHAPTER OR UNDER CHAPTER
53 FORTY OF THIS TITLE WITH RESPECT TO ANY MATTER FOR WHICH A TRIBUNAL HAS
54 NOT BEEN PROVIDED UNDER THIS CODE OR ANY OTHER LAW.
55 S 10. The administrative code of the city of New York is amended by
56 adding a new section 11-1308.1 to read as follows:
A. 7545 5
1 S 11-1308.1 JUDICIAL REVIEW. A. NOTWITHSTANDING ANY OTHER PROVISION OF
2 THIS CHAPTER, JUDICIAL REVIEW OF ANY DECISION FOLLOWING ANY HEARING
3 PROVIDED UNDER THIS CHAPTER SHALL BE SOUGHT WITHIN THIRTY DAYS AFTER THE
4 GIVING OF THE NOTICE OF SUCH DECISION.
5 B. SUBDIVISION A OF THIS SECTION SHALL NOT APPLY TO ANY DETERMINATION
6 MADE REGARDING:
7 (1) ANY CIGARETTE TAX OR CIGARETTE TAX REFUND UNDER SECTION 11-1310 OR
8 11-1311 OF THIS CHAPTER, OR
9 (2) ANY CIGARETTE TAX PENALTY IMPOSED UNDER SECTION 11-1317 OF THIS
10 CHAPTER.
11 S 11. Subdivisions a and b of section 11-1317 of the administrative
12 code of the city of New York, subdivision b as amended by chapter 458 of
13 the laws of 2006, are amended to read as follows:
14 a. Any person failing to pay a tax payable under this chapter when due
15 shall be subject to a penalty of [fifty] ONE HUNDRED per centum of the
16 amount of tax due, but the commissioner of finance, if satisfied that
17 the delay was excusable, may remit all or any part of such penalty. Such
18 penalty shall be paid and disposed of in the same manner as other reven-
19 ues under this chapter. Unpaid penalties may be enforced in the same
20 manner as the tax imposed by this chapter.
21 b. (1) In addition to any other penalty imposed by this section, the
22 commissioner of finance may (a) impose a penalty of not more than [one]
23 TWO hundred dollars for each two hundred cigarettes or fraction thereof
24 in excess of [one] FOUR HUNDRED BUT NOT MORE THAN TWO thousand ciga-
25 rettes in unstamped or unlawfully stamped packages in the possession or
26 under the control of any person, AND A PENALTY OF NOT MORE THAN FIVE
27 HUNDRED DOLLARS FOR EACH TWO HUNDRED CIGARETTES IN EXCESS OF TWO THOU-
28 SAND CIGARETTES and (b) impose a penalty of not more than [two hundred]
29 ONE THOUSAND dollars for each ten [affixed or] unaffixed false, altered
30 or counterfeit cigarette tax stamps, imprints or impressions, or frac-
31 tion thereof, [in excess of one hundred affixed or unaffixed false,
32 altered or counterfeit cigarette tax stamps, imprints or impressions] in
33 the possession or under the control of any person. Such penalty shall be
34 determined as provided in section 11-1310 of this chapter, and may be
35 reviewed only pursuant to such section. Such penalty may be enforced in
36 the same manner as the tax imposed by this chapter. The commissioner of
37 finance, in his or her discretion, may remit all or part of such penal-
38 ty. Such penalty shall be paid and disposed of in the same manner as
39 other revenues under this chapter.
40 (2) The penalties imposed by this paragraph may be imposed by the
41 commissioner of finance in addition to any other penalty imposed by this
42 section, but in lieu of the penalties imposed by subparagraph (a) of
43 paragraph one of this subdivision: (a) not less than [thirty] TWO
44 HUNDRED dollars but not more than [two] FIVE hundred dollars for each
45 two hundred cigarettes, or fraction thereof, in excess of [one thousand]
46 FOUR HUNDRED cigarettes but less than or equal to [five] TWO thousand
47 cigarettes in unstamped or unlawfully stamped packages knowingly in the
48 possession or knowingly under the control of any person; (b) not less
49 than [seventy-five] TWO HUNDRED FIFTY dollars but not more than [two
50 hundred] ONE THOUSAND dollars for each two hundred cigarettes, or frac-
51 tion thereof, in excess of [five] TWO thousand cigarettes but less than
52 or equal to [twenty] TEN thousand cigarettes in unstamped or unlawfully
53 stamped packages knowingly in the possession or knowingly under the
54 control of any person; and (c) not less than [one] FIVE hundred dollars
55 but not more than [two hundred] ONE THOUSAND dollars for each two
56 hundred cigarettes, or fraction thereof, in excess of [twenty] FIVE
A. 7545 6
1 thousand cigarettes in unstamped or unlawfully stamped packages, know-
2 ingly in the possession or knowingly under the control of any person.
3 Such penalty shall be determined as provided in section 11-1310 of this
4 chapter, and may be reviewed only pursuant to such section. Such penalty
5 may be enforced in the same manner as the tax imposed by this chapter.
6 The commissioner of finance, in his or her discretion, may remit all or
7 part of such penalty. Such penalty shall be paid and disposed of in the
8 same manner as other revenues under this chapter.
9 (3) A PERSON, IN THE POSSESSION OF MORE THAN FOUR HUNDRED CIGARETTES
10 IN UNSTAMPED OR UNLAWFULLY STAMPED PACKAGES, WHO IS ALSO IN THE
11 POSSESSION OF UNAFFIXED, FALSE, ALTERED OR COUNTERFEIT CIGARETTE TAX
12 STAMPS, IMPRINTS OR IMPRESSIONS, SHALL BE PRESUMED TO KNOWINGLY BE IN
13 THE POSSESSION OF, OR HAVE UNDER HIS, HER OR ITS CONTROL, THE UNSTAMPED
14 OR UNLAWFULLY STAMPED PACKAGES DESCRIBED IN PARAGRAPH TWO OF THIS SUBDI-
15 VISION.
16 S 12. Subdivisions (a), (c) and (d) of section 11-4012 of the adminis-
17 trative code of the city of New York, subdivision (a) as amended by
18 chapter 201 of the laws of 2009, subdivision (c) as amended by chapter
19 262 of the laws of 2000, paragraph 1 of subdivision (c) as amended by
20 chapter 508 of the laws of 2004, and subdivision (d) as added by chapter
21 765 of the laws of 1985, are amended to read as follows:
22 (a) Attempt to evade or defeat tax. Any person who willfully attempts
23 in any manner to evade or defeat any tax imposed by chapter thirteen of
24 this title or payment thereof where: (1) such tax is unpaid on [ten]
25 FIVE thousand cigarettes or more or (2) such person has previously been
26 convicted [two or more times] of a crime set forth in this chapter
27 relating to cigarette taxes; shall be guilty of a class E felony.
28 (c) (1) Any person, other than an agent so authorized by the commis-
29 sioner of finance, who willfully possesses or transports for the purpose
30 of sale [ten] FIVE thousand or more cigarettes subject to the tax
31 imposed by chapter thirteen of this title in any unstamped or unlawfully
32 stamped packages or who willfully sells or offers for sale [ten] FIVE
33 thousand or more cigarettes in any unstamped or unlawfully stamped pack-
34 ages in violation of such chapter shall be guilty of a class E felony.
35 (2) Any person, other than an agent appointed by the commissioner of
36 finance, who willfully possesses or transports for the purpose of sale
37 [thirty] TEN thousand or more cigarettes subject to the tax imposed by
38 chapter thirteen of this title in any unstamped or unlawfully stamped
39 packages or who willfully sells or offers for sale [thirty] TEN thousand
40 or more cigarettes in any unstamped or unlawfully stamped packages in
41 violation of such chapter shall be guilty of a class D felony.
42 (d) For the purposes of this section, the possession or transportation
43 within this city by any person, other than an agent, at any one time of
44 [five thousand or] more THAN FOUR HUNDRED cigarettes in unstamped or
45 unlawfully stamped packages shall be presumptive evidence that such
46 cigarettes are possessed or transported for the purpose of sale and are
47 subject to the tax imposed by chapter thirteen of this title. With
48 respect to such possession or transportation, any provisions of chapter
49 thirteen of this title providing for a time period during which a use
50 tax imposed by such chapter may be paid on unstamped cigarettes or
51 unlawfully or improperly stamped cigarettes or during which such ciga-
52 rettes may be returned to an agent shall not apply. The possession with-
53 in this city of more than four hundred cigarettes in unstamped or unlaw-
54 fully stamped packages by any person other than an agent at any one time
55 shall be presumptive evidence that such cigarettes are subject to tax as
56 provided by chapter thirteen of this title.
A. 7545 7
1 S 13. Subdivisions (a) and (c) of section 11-4021 of the administra-
2 tive code of the city of New York, as amended by chapter 556 of the laws
3 of 2011, are amended to read as follows:
4 (a) Whenever a police officer designated in section 1.20 of the crimi-
5 nal procedure law or A SHERIFF, UNDERSHERIFF OR DEPUTY SHERIFF OF THE
6 CITY OF NEW YORK DESIGNATED A PEACE OFFICER IN SUBDIVISION TWO OF
7 SECTION 2.10 OF SUCH LAW, OR a peace officer designated in subdivision
8 five of section 2.10 of such law, acting pursuant to his special duties,
9 shall discover any cigarettes subject to any tax provided by chapter
10 thirteen of this title, and upon which the tax has not been paid or the
11 stamps not affixed as required by such chapter, they are hereby author-
12 ized and empowered forthwith to seize and take possession of such ciga-
13 rettes, together with any vending machine or receptacle in which they
14 are held for sale. Such cigarettes, vending machine or receptacle seized
15 by a police officer or such peace officer shall be turned over to the
16 commissioner of finance.
17 (c) The commissioner of finance may, within a reasonable time after
18 the forfeiture to the city of such vending machines or receptacles, upon
19 publication of a notice to such effect for at least five successive
20 days, in a newspaper published or circulated in the city, sell such
21 forfeited vending machines or receptacles at public sale and pay the
22 proceeds into the treasury of the city to the credit of the general
23 fund. Such seized vending machines or receptacles may be sold prior to
24 forfeiture if the owner of the seized property consents to the sale.
25 Notwithstanding any other provision of this section, the commissioner of
26 finance may enter into an agreement with the state tax commission to
27 provide for the disposition between the city and state of the proceeds
28 from any such sale. The commissioner of finance may [also] transfer any
29 seized cigarettes to the state for destruction. All cigarettes forfeited
30 to the [state] CITY shall be destroyed or used for law enforcement
31 purposes, except that cigarettes that violate, or are suspected of
32 violating, federal trademark laws or import laws shall not be used for
33 law enforcement purposes. If the commissioner determines the cigarettes
34 may not be used for law enforcement purposes, the commissioner of
35 finance must, within a reasonable time after the forfeiture to the city
36 of such cigarettes, upon publication of a notice to such effect for at
37 least five successive days, prior to destruction, in a newspaper
38 published or circulated in the city, destroy such forfeited cigarettes.
39 Such commissioner may, prior to any destruction of cigarettes, permit
40 the true holder of the trademark rights in the cigarettes to inspect
41 such forfeited cigarettes in order to assist in any investigation
42 regarding such cigarettes.
43 S 14. The administrative code of the city of New York is amended by
44 adding a new section 11-4024 to read as follows:
45 S 11-4024 SEIZURE AND FORFEITURE OF TAXED AND LAWFULLY STAMPED CIGA-
46 RETTES SOLD OR POSSESSED BY UNLICENSED RETAIL OR WHOLESALE DEALERS AND
47 FLAVORED TOBACCO PRODUCTS. (A) WHENEVER A POLICE OFFICER DESIGNATED IN
48 SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW OR A PEACE OFFICER EMPLOYED
49 BY THE DEPARTMENT OF FINANCE, INCLUDING BUT NOT LIMITED TO THE SHERIFF,
50 UNDERSHERIFF OR DEPUTY SHERIFFS OF THE CITY OF NEW YORK DESIGNATED AS
51 PEACE OFFICERS IN SUBDIVISION TWO OF SECTION 2.10 OF THE CRIMINAL PROCE-
52 DURE LAW, SHALL DISCOVER (1) ANY CIGARETTES SUBJECT TO ANY TAX PROVIDED
53 BY CHAPTER THIRTEEN OF THIS TITLE, AND UPON WHICH THE TAX HAS BEEN PAID
54 AND THE STAMPS AFFIXED AS REQUIRED BY SUCH CHAPTER, BUT SUCH CIGARETTES
55 ARE SOLD, OFFERED FOR SALE OR POSSESSED BY A PERSON IN VIOLATION OF
56 SECTION 11-1303, 17-703 OR 20-202 OF THIS CODE, OR (2) ANY FLAVORED
A. 7545 8
1 TOBACCO PRODUCT THAT IS SOLD, OFFERED FOR SALE OR POSSESSED WITH INTENT
2 TO SELL IN VIOLATION OF SECTION 17-715 OF THIS CODE, HE OR SHE IS HEREBY
3 AUTHORIZED AND EMPOWERED FORTHWITH TO SEIZE AND TAKE POSSESSION OF SUCH
4 CIGARETTES OR FLAVORED TOBACCO PRODUCT, TOGETHER WITH ANY VENDING
5 MACHINE OR RECEPTACLE IN WHICH SUCH CIGARETTES OR FLAVORED TOBACCO PROD-
6 UCT ARE HELD FOR SALE. SUCH CIGARETTES OR FLAVORED TOBACCO PRODUCT,
7 VENDING MACHINE OR RECEPTACLE SEIZED BY SUCH POLICE OFFICER OR SUCH
8 PEACE OFFICER SHALL BE TURNED OVER TO THE COMMISSIONER OF FINANCE.
9 (B) THE SEIZED CIGARETTES OR FLAVORED TOBACCO PRODUCT AND ANY VENDING
10 MACHINE OR RECEPTACLE SEIZED THEREWITH, BUT NOT THE MONEY CONTAINED IN
11 SUCH VENDING MACHINE OR RECEPTACLE, SHALL THEREUPON BE FORFEITED TO THE
12 CITY, UNLESS THE PERSON FROM WHOM THE SEIZURE IS MADE, OR THE OWNER OF
13 SUCH SEIZED CIGARETTES OR FLAVORED TOBACCO PRODUCT, VENDING MACHINE OR
14 RECEPTACLE, OR ANY OTHER PERSON HAVING AN INTEREST IN SUCH PROPERTY,
15 SHALL WITHIN TEN DAYS OF SUCH SEIZURE, APPLY TO THE COMMISSIONER OF
16 FINANCE FOR A HEARING TO DETERMINE THE PROPERTY OF THE SEIZURE, OR
17 UNLESS THE COMMISSIONER OF FINANCE SHALL ON HIS OR HER OWN MOTION
18 RELEASE THE SEIZED CIGARETTES, FLAVORED TOBACCO PRODUCT, VENDING MACHINE
19 OR RECEPTACLE. AFTER SUCH HEARING THE COMMISSIONER OF FINANCE SHALL GIVE
20 NOTICE OF HIS OR HER DECISION TO THE PETITIONER. THE DECISION OF THE
21 COMMISSIONER SHALL BE REVIEWABLE FOR ERROR, ILLEGALITY, UNCONSTITUTION-
22 ALITY OR ANY OTHER REASON WHATSOEVER BY A PROCEEDING UNDER ARTICLE
23 SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES WITHIN THIRTY DAYS
24 AFTER THE GIVING OF SUCH DECISION. SUCH PROCEEDING SHALL NOT BE INSTI-
25 TUTED UNLESS THERE SHALL FIRST BE FILED WITH THE COMMISSIONER OF FINANCE
26 AN UNDERTAKING, ISSUED BY A SURETY COMPANY AUTHORIZED TO TRANSACT BUSI-
27 NESS IN NEW YORK STATE AND APPROVED BY THE SUPERINTENDENT OF FINANCIAL
28 SERVICES OF NEW YORK STATE AS TO SOLVENCY AND RESPONSIBILITY, IN SUCH
29 AMOUNT AS A JUSTICE OF THE SUPREME COURT SHALL APPROVE, TO THE EFFECT
30 THAT IF SUCH PROCEEDING BE DISMISSED, OR THE SEIZURE CONFIRMED, THE
31 PETITIONER WILL PAY ALL COSTS AND CHARGES WHICH MAY ACCRUE IN THE PROSE-
32 CUTION OF THE PROCEEDING.
33 (C) THE COMMISSIONER OF FINANCE MAY, WITHIN A REASONABLE TIME AFTER
34 THE FORFEITURE TO THE CITY OF SUCH VENDING MACHINE OR RECEPTACLE UNDER
35 THIS SECTION, UPON PUBLICATION OF A NOTICE TO SUCH EFFECT FOR AT LEAST
36 FIVE SUCCESSIVE DAYS, IN A NEWSPAPER PUBLISHED OR CIRCULATED IN THE
37 CITY, SELL SUCH FORFEITED VENDING MACHINE OR RECEPTACLE AT PUBLIC SALE
38 AND PAY THE PROCEEDS INTO THE TREASURY OF THE CITY TO THE CREDIT OF THE
39 GENERAL FUND. SUCH SEIZED VENDING MACHINE OR RECEPTACLE MAY BE SOLD
40 PRIOR TO FORFEITURE IF THE OWNER OF THE SEIZED PROPERTY CONSENTS TO THE
41 SALE. CIGARETTES AND FLAVORED TOBACCO PRODUCTS FORFEITED TO THE CITY
42 UNDER THIS SECTION SHALL BE DESTROYED OR USED FOR LAW ENFORCEMENT
43 PURPOSES, EXCEPT THAT CIGARETTES THAT VIOLATE, OR ARE SUSPECTED OF
44 VIOLATING, FEDERAL TRADEMARK LAWS OR IMPORT LAWS SHALL NOT BE USED FOR
45 LAW ENFORCEMENT PURPOSES. IF THE COMMISSIONER DETERMINES THE CIGARETTES
46 FORFEITED UNDER THIS SECTION MAY NOT BE USED FOR LAW ENFORCEMENT
47 PURPOSES, THE COMMISSIONER OF FINANCE MUST, WITHIN A REASONABLE TIME
48 AFTER THE FORFEITURE TO THE CITY OF SUCH CIGARETTES, UPON PUBLICATION OF
49 A NOTICE TO SUCH EFFECT FOR AT LEAST FIVE SUCCESSIVE DAYS, PRIOR TO
50 DESTRUCTION, IN A NEWSPAPER PUBLISHED OR CIRCULATED IN THE CITY, DESTROY
51 SUCH FORFEITED CIGARETTES.
52 (D) IN THE ALTERNATIVE, THE COMMISSIONER OF FINANCE, ON REASONABLE
53 NOTICE BY MAIL OR OTHERWISE, MAY PERMIT THE PERSON FROM WHOM A SEIZURE
54 OF CIGARETTES OR FLAVORED TOBACCO PRODUCT UNDER THIS SECTION WAS MADE,
55 TO REDEEM ANY VENDING MACHINE OR RECEPTACLE SEIZED WITH SUCH CIGARETTES
56 OR FLAVORED TOBACCO PRODUCT, OR MAY PERMIT THE OWNER OF ANY SUCH VENDING
A. 7545 9
1 MACHINE OR RECEPTACLE TO REDEEM THE SAME, UPON THE PAYMENT OF ANY CIVIL
2 PENALTY IMPOSED PURSUANT TO CHAPTER SEVEN OF TITLE SEVENTEEN OR SUBCHAP-
3 TER ONE OF CHAPTER TWO OF TITLE TWENTY OF THIS CODE AND THE COSTS
4 INCURRED IN SUCH PROCEEDING.
5 S 15. This act shall take effect immediately.
