RETRIEVE BILL
STATE OF NEW YORK
________________________________________________________________________
1623
2003-2004 Regular Sessions
IN SENATE
February 7, 2003
___________
Introduced by Sen. STAVISKY -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, the criminal procedure law, the
correction law, the state finance law, the vehicle and traffic law,
the judiciary law, the civil practice law and rules, the executive
law, the environmental conservation law and the public authorities
law, in relation to enacting the comprehensive auto theft prevention
act
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. This act shall be known, and may be cited as the "compre-
2 hensive auto theft prevention act".
3 § 2. Legislative findings. The legislature declares that a motor vehi-
4 cle theft crisis of pandemic proportions exists in the state. The theft
5 and vandalism of motor vehicles has been allowed to continue unchecked.
6 The legislature finds that the criminal justice system's inability to
7 enforce the current laws protecting vehicles and motorists breeds cyni-
8 cism and contempt for the legal system.
9 Based upon these findings, it is the legislature's intent to ensure
10 that the motor vehicle theft epidemic in this state is comprehensively
11 addressed by the criminal justice system.
12 The legislature declares that without new statutory and financial
13 resources to combat motor vehicle theft, the problem will not be
14 substantively ameliorated.
15 It is the policy of this state that the investigation, prosecution and
16 incarceration of those responsible for motor vehicle theft and related
17 crimes shall be a priority for the criminal justice system.
18 § 3. Section 10.00 of the penal law is amended by adding two new
19 subdivisions 20 and 21 to read as follows:
20 20. The term "motor vehicle" shall mean all vehicles as defined by
21 section one hundred twenty-five of the vehicle and traffic law.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07933-01-3
S. 1623 2
1 21. The term "motor vehicle theft" shall mean all violations of arti-
2 cle one hundred fifty-five or one hundred sixty-five of this chapter
3 which involves the theft of a motor vehicle or the parts thereof or the
4 possession or use of a stolen vehicle or parts thereof.
5 § 4. The penal law is amended by adding a new section 60.15 to read as
6 follows:
7 § 60.15 Authorized disposition; persistent motor vehicle theft offen-
8 ders.
9 When the court has determined, pursuant to the applicable provisions
10 of law, that a person is a persistent motor vehicle theft offender, the
11 court, in lieu of imposing a sentence authorized by article sixty-five,
12 eighty or eighty-five of this chapter, must impose the sentence of
13 imprisonment provided for a class C felony.
14 § 5. Subdivision 1 of section 70.15 of the penal law, as amended by
15 chapter 291 of the laws of 1993, is amended to read as follows:
16 1. Class A misdemeanor. A sentence of imprisonment for a class A
17 misdemeanor shall be a definite sentence. When such a sentence is
18 imposed the term shall be fixed by the court, and shall not exceed one
19 year; provided, however, that a sentence of imprisonment imposed upon a
20 conviction of criminal possession of a weapon in the fourth degree as
21 defined in subdivision one of section 265.01 must be for a period of no
22 less than one year when the conviction was the result of a plea of guil-
23 ty entered in satisfaction of an indictment or any count thereof charg-
24 ing the defendant with the class D violent felony offense of criminal
25 possession of a weapon in the third degree as defined in subdivision
26 four of section 265.02 and provided further that for a first or second
27 conviction of any violation of article one hundred fifty-five or one
28 hundred sixty-five of this chapter, a sentence of no less than one year
29 of imprisonment must be imposed when the conviction was the result of a
30 plea of guilty entered in satisfaction of an indictment or any count
31 thereof charging the defendant with motor vehicle theft as defined in
32 section 10.00 of this chapter, except that the court may impose any
33 other sentence authorized by law upon a person who has not been previ-
34 ously convicted in the five years immediately preceding the commission
35 of the offense for a felony or a class A misdemeanor defined in this
36 chapter, if the court having regard to the nature and circumstances of
37 the crime and to the history and character of the defendant, finds on
38 the record that such sentence would be unduly harsh and that the alter-
39 native sentence would be consistent with public safety and does not
40 deprecate the seriousness of the crime.
41 § 6. The penal law is amended by adding a new section 70.17 to read as
42 follows:
43 § 70.17 Sentence of imprisonment for persistent motor vehicle theft
44 offenders.
45 1. A persistent motor vehicle theft offender is a person who is
46 convicted of a violation of article one hundred fifty-five of this chap-
47 ter after having two previous convictions for motor vehicle theft.
48 2. For the purposes of this section, a prior conviction for motor
49 vehicle theft shall only include convictions for violation of sections
50 155.23, 155.25, 155.30, 155.35, 155.42, 165.05, 165.06, 165.08, 165.09,
51 165.10, 165.40, 165.45, 165.50, 165.52, or 165.54 of this chapter, or,
52 in another jurisdiction, of an offense having elements similar to that
53 described in section 155.30, 155.35, 155.42, 165.05, 165.06, 165.08,
54 165.09, 165.10, 165.40, 165.45, 165.50, 165.52, or 165.54 of this chap-
55 ter, for which a sentence of a term of imprisonment is authorized by
56 statute, when the offense involved the theft of a motor vehicle or parts
S. 1623 3
1 thereof, or possession of a stolen motor vehicle or part thereof.
2 Sentencing for such prior convictions must have been imposed before the
3 commission of the present offense. A suspended sentence, suspended
4 execution of a sentence, a fine, probation, conditional or unconditional
5 discharge, and a sentence of certification to the care and custody of a
6 drug abuse control commission, shall be deemed a sentence for the
7 purpose of this section.
8 § 7. The penal law is amended by adding a new section 155.23 to read
9 as follows:
10 § 155.23 Grand larceny auto.
11 A person is guilty of grand larceny auto when he unlawfully possesses
12 a stolen motor vehicle within forty-eight hours of the theft of such
13 vehicle or within forty-eight hours of the time when such theft is
14 reported to the police, whichever is later.
15 Grand larceny auto is a class D felony.
16 § 8. Section 165.65 of the penal law is amended by adding a new subdi-
17 vision 3 to read as follows:
18 3. All licensed vehicle dismantlers, salvage pools, mobile car crush-
19 ers, itinerant vehicle collectors, and others who are in the business of
20 buying and selling motor vehicles or parts thereof who possess stolen
21 motor vehicles or parts thereof are presumed to know that such property
22 was stolen if it was obtained without it being ascertained by an inquiry
23 prescribed in section four hundred fifteen-a of the vehicle and traffic
24 law that the person it was obtained from had a legal right to possess
25 it.
26 § 9. Section 220.10 of the criminal procedure law is amended by adding
27 a new subdivision 7 to read as follows:
28 7. Notwithstanding any of the foregoing, before the court may consent
29 to any plea for a lesser offense pursuant to subdivision three of this
30 section for an indictment which charges the defendant with a crime meet-
31 ing the definition of motor vehicle theft under section 10.00 of the
32 penal law, the court must state for the record how the interests of
33 justice are served by such plea to a lesser offense. The court may not
34 consider any perceived lack of prison space, fiscal constraint, or the
35 number of cases pending before the court when stating such benefits.
36 § 10. Section 410.10 of the criminal procedure law is amended by
37 adding a new subdivision 4 to read as follows:
38 4. When a court pronounces a sentence of probation or of conditional
39 discharge for a defendant convicted of motor vehicle theft as defined in
40 subdivision twenty-one of section 10.00 of the penal law, other than a
41 persistent motor vehicle theft offender as defined in section 70.17 of
42 the penal law, it must also specify as part of the sentence the interest
43 of justice that is served by such sentence other than incarceration.
44 The court shall not consider any perceived lack of prison space or
45 fiscal constraints when stating such benefits.
46 § 11. Section 70 of the correction law is amended by adding a new
47 subdivision 9 to read as follows:
48 9. The commissioner is authorized to acquire from the commissioner of
49 mental health any and all hospitals, as defined in subdivision ten of
50 section 1.03 of the mental hygiene law, that are no longer needed by the
51 office of mental health. The commissioner is authorized to convert these
52 hospitals as necessary for use as correctional facilities as defined in
53 paragraph (a) of subdivision one of this section. The commissioner shall
54 report to the governor, the temporary president of the senate and the
55 speaker of the assembly, no later than the first of January next
56 succeeding the date when this subdivision shall take effect, on the
S. 1623 4
1 department's progress in acquiring and converting these hospitals into
2 correctional facilities as defined in paragraph (a) of subdivision one
3 of this section.
4 § 12. The correction law is amended by adding a new section 615 to
5 read as follows:
6 § 615. Reports on expanding jail capacity. Every sheriff, or in coun-
7 ties within the city of New York, the commissioner of correction of such
8 city, shall report no later than the first of January of each year to
9 the governor, the temporary president of the senate, the speaker of the
10 assembly, the chief executive officer of such county or city, and the
11 legislative body of such county or city, on opportunities to expand jail
12 capacity within such jurisdiction.
13 § 13. Section 855 of the correction law is amended by adding a new
14 subdivision 10 to read as follows:
15 10. Notwithstanding any of the foregoing, no otherwise eligible inmate
16 who is under sentence for motor vehicle theft as defined in section
17 10.00 of the penal law shall be released until he has served at least
18 one-half of his minimum term of imprisonment.
19 § 14. Subdivision 2 of section 91 of the state finance law, as amended
20 by chapter 55 of the laws of 1992, is amended to read as follows:
21 2. Such account shall consist of all fees received pursuant to article
22 five, sections three hundred ninety-four, three hundred ninety-eight-c,
23 four hundred fifteen, [four hundred fifteen-a,] four hundred twenty-
24 nine, subdivision four of section five hundred thirty and subdivision
25 seven of section one thousand one hundred ninety-six of the vehicle and
26 traffic law and all reinstatement, suspension, termination and reappli-
27 cation fees received pursuant to article nineteen of the vehicle and
28 traffic law and required to be deposited to this account, and all other
29 monies credited or transferred thereto from any other fund or source
30 pursuant to law.
31 § 15. The state finance law is amended by adding a new section 90-b to
32 read as follows:
33 § 90-b. Motor vehicle investigation fund. 1. There is hereby estab-
34 lished in the joint custody of the state comptroller and the commission-
35 er of taxation and finance a special revenue fund to be known as the
36 motor vehicle investigation fund.
37 2. Such fund shall consist of all revenues received by the state
38 pursuant to section four hundred fifteen-a of the vehicle and traffic
39 law and all other monies credited or transferred thereto from any other
40 fund or source pursuant to law.
41 3. Monies of the motor vehicle investigation fund, following appropri-
42 ation by the legislature and allocation by the director of the budget
43 shall be made available to the department of motor vehicles for the
44 costs associated with enforcement of section four hundred fifteen-a of
45 the vehicle and traffic law.
46 § 16. The state finance law is amended by adding a new section 97-cccc
47 to read as follows:
48 § 97-cccc. Combat auto theft fund. 1. There is hereby established in
49 the joint custody of the state comptroller and the commissioner of taxa-
50 tion and finance a special fund to be known as the combat auto theft
51 fund.
52 2. Such fund shall consist of all revenues received by the state
53 pursuant to article four hundred ninety-five of the penal law and all
54 other grants, bequests or other moneys credited, appropriated or trans-
55 ferred thereto from any other fund or source.
S. 1623 5
1 3. Moneys of the combat auto theft fund, following appropriation by
2 the legislature and allocation by the director of the budget, shall be
3 made available for the following purposes:
4 a. for funding and programmatic assistance to any non-profit organiza-
5 tion certified by the chairperson of the crime victims board under the
6 provisions of the omnibus auto theft consumer protection act.
7 b. for the expenses of the "auto theft reward" program established
8 under the omnibus auto theft consumer protection act.
9 c. for grants to enable local police agencies to increase the number
10 of investigators assigned to motor vehicle theft crimes, as defined in
11 section 10.00 of the penal law.
12 d. for the expenses of any special terms of the supreme court which
13 may be established pursuant to article five-C of the judiciary law.
14 e. for the appointment of assistant district attorneys and other staff
15 pursuant to article five-C of the judiciary law.
16 f. for grants to enable district attorneys in counties not wholly
17 contained within a city having a population of one million or more to
18 increase the number of assistant district attorneys assigned to prose-
19 cute motor vehicle theft crimes, as defined in section 10.00 of the
20 penal law.
21 g. for grants to enable local police agencies and district attorneys
22 to purchase equipment needed for the investigation and prosecution of
23 motor vehicle theft crimes, as defined in section 10.00 of the penal
24 law.
25 4. Moneys shall be paid out of the fund on the audit and warrant of
26 the state comptroller on vouchers certified or approved by the chair-
27 person of the crime victims board; provided, however, that before the
28 chairperson may execute any voucher, he must certify that any grants
29 containing moneys from the combat auto theft fund pursuant to paragraph
30 c, d or e of subdivision three of this section, shall be used to expand
31 or establish motor vehicle theft prevention programs, rather than to
32 fund existing programs. The chairperson shall award all grants contain-
33 ing moneys from the combat motor vehicle theft fund pursuant to para-
34 graphs c, d and e of subdivision three of this section to localities in
35 accordance with the incidence of motor vehicle theft within their juris-
36 diction.
37 § 17. The vehicle and traffic law is amended by adding a new section
38 161 to read as follows:
39 § 161. Tow truck. Every vehicle that is equipped with a crane, winch,
40 tow bar, push plate, or other device designed to pull or push a vehicle
41 or raise a vehicle or the front or rear ends thereof.
42 § 18. The vehicle and traffic law is amended by adding a new section
43 223-a to read as follows:
44 § 223-a. Routine check of registration. 1. The superintendent of state
45 police, in consultation with the commissioner, is authorized to promul-
46 gate regulations to ensure that local authorities, as defined in section
47 one hundred twenty-two of this chapter, establish programs to routinely
48 and regularly check the ownership of motor vehicles as defined in subdi-
49 vision two of this section for the purpose of detecting and recovering
50 stolen motor vehicles.
51 2. For the purposes of this section, local authorities shall be
52 authorized to check the ownership of all vehicles during the times spec-
53 ified in section two hundred twenty-three of this title which either:
54 (a) are participating in the combat auto theft program established in
55 section two hundred twenty-three of this title; or
56 (b) show physical evidence of having been stolen or vandalized.
S. 1623 6
1 § 19. Subdivision 3 of section 415-a of the vehicle and traffic law,
2 as amended by chapter 309 of the laws of 1996, is amended to read as
3 follows:
4 3. Fees. The annual fee for registration as a vehicle dismantler,
5 salvage pool, mobile car crusher or itinerant vehicle collector shall be
6 [fifty] five hundred dollars. Upon approval of an application, an appro-
7 priate registration shall be issued for a period of time determined by
8 the commissioner and if issued for a period of more or less than one
9 year, the fee shall be prorated on a monthly basis. Fees assessed under
10 this section shall be paid to the commissioner for deposit to the
11 [general fund] motor vehicle investigation fund established pursuant to
12 section ninety-b of the state finance law.
13 § 20. Paragraph (a) of subdivision 5 of section 415-a of the vehicle
14 and traffic law, as amended by chapter 161 of the laws of 1996, is
15 amended to read as follows:
16 (a) Any records required by this section shall apply only to vehicles
17 or parts of vehicles for which a certificate of title has been issued by
18 the commissioner or which would be eligible to have such a certificate
19 of title issued. Every person required to be registered pursuant to
20 this section shall maintain a record of all motor vehicles, trailers,
21 and major component parts thereof[,] and any potentially hazardous
22 wastes as defined in section 27-0303 of the environmental conservation
23 law coming into his possession together with a record of the disposition
24 of any such motor vehicle, trailer or part thereof and shall maintain
25 proof of ownership for any motor vehicle, trailer or major component
26 part thereof while in his possession. For the purposes of this article
27 an inflatable restraint system shall be a major component part. Such
28 records shall be maintained in a manner and form prescribed by the
29 commissioner. [The commissioner may, by regulation, exempt vehicles or
30 major component parts of vehicles from all or a portion of the record
31 keeping requirements based upon the age of the vehicle if the commis-
32 sioner deems that such record keeping requirements would not further the
33 purposes of the motor vehicle theft prevention program established by
34 section two hundred twenty-three of this chapter] Upon receipt of a
35 motor vehicle, all dealers licensed under subdivision four of this
36 section must make an inquiry to the New York state police information
37 network as to whether the person from which the vehicle was obtained had
38 a legal right to possess it. The inquiry must also be conducted when a
39 licensee receives any motor vehicle part with a retail value in excess
40 of two hundred fifty dollars, and the location and/or disposal of the
41 remainder of the vehicle must be accounted for and registered in the
42 record as well. Acceptance of a vehicle or part thereof with a retail
43 value in excess of two hundred fifty dollars without conducting such an
44 inquiry, or the entry of a false confirmation of an individual's right
45 to possess said vehicles or parts, or failure to maintain such confirma-
46 tion shall, for the purposes of this section, be considered failure to
47 conduct an inquiry. Failure to conduct such an inquiry shall result in
48 the immediate revocation of the license. Upon request of an [agent of
49 the commissioner or of any police officer] investigator of the depart-
50 ment, a sworn officer of the water supply police employed by the city of
51 New York, a sworn officer of the division of law enforcement in the
52 department of environmental conservation, or officers and members of the
53 sanitation police of the department of sanitation of the city of New
54 York duly appointed as peace officers by such department, and during his
55 regular and usual business hours, and not less than twice nor more than
56 twelve times during a calendar year, a vehicle dismantler shall produce
S. 1623 7
1 such records and permit said [agent or police officer] investigator or
2 officer to examine them and any vehicles or parts of vehicles which are
3 subject to the record keeping requirements of this section and which are
4 on the premises. Upon request of any [agent of the commissioner] inves-
5 tigator of the department, a sworn officer of the water supply police
6 employed by the city of New York, a sworn officer of the division of
7 law enforcement in the department of environmental conservation, or
8 officers and members of the sanitation police of the department of sani-
9 tation of the city of New York duly appointed as peace officers by such
10 department, and during his regular and usual business hours, and not
11 less than twice nor more than twelve times during a calendar year, a
12 salvage pool, mobile car crusher or itinerant vehicle collector shall
13 produce such records and permit said [agent or police officer] investi-
14 gator or officer to examine them and any vehicles or parts of vehicles
15 which are subject to the record keeping requirements of this section and
16 which are on the premises. Before the commissioner shall issue any
17 permit to a vehicle dismantler, salvage pool, mobile car crusher, or
18 itinerant vehicle collector, the licensee shall sign a statement of
19 informed consent, promulgated by the commissioner, authorizing investi-
20 gators of the department or any of the sworn officers enumerated in this
21 section to conduct administrative searches, without a warrant, to
22 enforce the provisions of this section. If, during this inspection, it
23 is discovered that the licensee failed to keep accurate records as
24 prescribed by the commissioner, or if he failed to make an inquiry as to
25 the proper prior ownership of the vehicle or parts thereof, then the
26 license shall be immediately revoked by the investigator or officer.
27 For the purposes of this section, any investigator or sworn officer is
28 authorized to examine any records maintained in accordance with this
29 section and any vehicle or part on the premises to verify the veracity
30 of the records. For the purposes of enforcing section 27-0309 of the
31 environmental conservation law, any such investigator or officer shall
32 also have access to any other written records maintained by the licen-
33 see. Any violation of law discovered by an investigator or officer
34 during an administrative inspection conducted pursuant to this section
35 shall be promptly reported to a police officer who must obtain a search
36 warrant pursuant to article six hundred ninety of the criminal procedure
37 law before any search may proceed. The failure to produce such records
38 or to permit such inspection on the part of any person required to be
39 registered pursuant to this section as required by this paragraph shall
40 be a class A misdemeanor.
41 § 21. Section 424 of the vehicle and traffic law is amended by adding
42 a new subdivision 3 to read as follows:
43 3. Any police officer, state trooper, or peace officer, acting pursu-
44 ant to his special duties shall have the power to detain, for the
45 purposes of determining proper ownership of the vehicle being towed, any
46 tow truck as defined in section one hundred sixty-one of this chapter.
47 § 22. The judiciary law is amended by adding a new article 5-C to read
48 as follows:
49 ARTICLE 5-C
50 SPECIAL MOTOR VEHICLE THEFT PARTS OF THE SUPREME COURT IN
51 CITIES WITH A POPULATION OF ONE MILLION OR MORE
52 Section 178-a. Special motor vehicle theft parts; establishment.
53 178-b. Special motor vehicle theft parts; prosecutorial organ-
54 ization.
55 178-c. Special motor vehicle theft parts; procedure.
56 178-d. Special motor vehicle theft parts; probation services.
S. 1623 8
1 § 178-a. Special motor vehicle theft parts; establishment. 1. There
2 shall be established in cities having a population of one million or
3 more in the supreme court, special motor vehicle theft parts in such
4 numbers and at such locations as shall be designated by the administra-
5 tive board of the judicial conference of the state of New York to effec-
6 tuate the purposes of this article. Such parts shall hear and determine
7 motor vehicle theft indictments assigned thereto from any part of the
8 supreme court in any county within such cities.
9 As used in this article, "motor vehicle theft indictment" means an
10 indictment charging a crime that is prosecutable in any county wholly
11 contained within cities having a population of one million or more
12 involving motor vehicle theft as defined in section 10.00 of the penal
13 law or any other offense properly joined therewith.
14 2. Notwithstanding any other provision of law, upon or after arraign-
15 ment on a motor vehicle theft indictment filed in the supreme court in
16 any county within such cities and before entry of a plea of guilty or
17 commencement of trial, such supreme court may order that the indictment
18 and action be assigned to a special motor vehicle theft part of the
19 supreme court.
20 3. The trial of an indictment in a special motor vehicle theft part
21 shall for all purposes be deemed to be a trial in the county in which
22 the indictment was filed, but the administrative board of the judicial
23 conference may promulgate rules, orders or regulations to be applicable
24 to courts in the county where the indictment was filed. The administra-
25 tive board shall provide by rule, order, or regulation for at least the
26 following matters: the procedure of the part; its auxiliary services;
27 the assignment of judicial personnel; the appointment of terms; and
28 transmittal of all papers in the action, including all undertakings for
29 appearances of the defendant and the witnesses, to the part of the
30 supreme court to which the action has been assigned.
31 § 178-b. Special motor vehicle theft parts; prosecutorial organiza-
32 tion. The district attorneys of the counties wholly contained in a city
33 having a population of one million or more shall formulate and adopt a
34 plan designed to effect the purposes of this article. The plan shall
35 provide for the following matters:
36 1. the appointment of an assistant district attorney to the staff of
37 one of the district attorneys to administer the program established
38 pursuant to the plan;
39 2. the appointment of a staff to operate under the direction and
40 supervision of the assistant district attorney appointed pursuant to
41 subdivision one of this section;
42 3. the establishment of standards, administrative policies, and proce-
43 dures to govern the performance of the prosecutorial functions in
44 connection with motor vehicle theft cases, including but not limited to
45 guidelines governing application by the assistant district attorneys
46 appointed pursuant to subdivision one of this section for the impaneling
47 of a grand jury; and
48 4. any other matters, pertaining to the effective administration of
49 the program and fulfillment of the purposes of this article.
50 § 178-c. Special motor vehicle theft parts; procedure. Notwithstand-
51 ing any other provision of law, a motor vehicle theft indictment
52 returned in any county within such cities may be prosecuted in the
53 special motor vehicle theft part to which it is assigned pursuant to
54 this article, irrespective of the county in which the part is held and
55 in which the crime charged was committed; any assistant district attor-
56 ney appointed pursuant to the plan authorized by this article may prose-
S. 1623 9
1 cute all offenses cognizable by any special motor vehicle theft part
2 irrespective of the county in which the part is held and in which the
3 crime charged was committed; and upon the application of the assistant
4 district attorney in charge of the special motor vehicle theft parts
5 appointed pursuant to a plan authorized by this article, one or more
6 grand juries may be drawn and impaneled for a special motor vehicle
7 theft part upon the order of the justice assigned to such part, which
8 grand jury may exercise all the powers of a grand jury in the county in
9 which it is impaneled and may in addition exercise its powers with
10 respect to the alleged commission of an offense in any county wholly
11 contained in a city having a population of one million or more involving
12 motor vehicle theft as defined in section 10.00 of the penal law and any
13 other offense that could be properly joined therewith in an indictment.
14 § 178-d. Special motor vehicle theft parts; probation services. The
15 state director of probation and correctional alternatives is authorized
16 to supplement the probation services available to the supreme court in
17 such cities by directing that probation services for cases in the
18 special motor vehicle theft parts be performed by the state division of
19 probation and correctional alternatives. Such services shall be adminis-
20 tered in accordance with the provisions of subdivision two of section
21 two hundred forty-seven of the executive law, except that the two-year
22 limitation contained therein shall not apply.
23 § 23. The penal law is amended by adding a new article 495 to read as
24 follows:
25 ARTICLE 495
26 CRIMINAL FORFEITURE; FELONY MOTOR VEHICLE THEFT
27 Section 495.00 Definitions.
28 495.05 Motor vehicle theft offenses; forfeiture.
29 495.10 Procedure.
30 495.20 Disposal of property.
31 495.25 Election of remedies.
32 495.30 Provisional remedies.
33 495.35 Rebuttable presumption.
34 § 495.00 Definitions.
35 The following definitions are applicable to this article.
36 1. "Offense" means motor vehicle theft as defined in section 10.00 of
37 this chapter, or an attempt or conspiracy to commit any such offense, or
38 solicitation of any such offense.
39 2. "Property" means real property, personal property, money, negoti-
40 able instruments, securities, or anything of value or interest in a
41 thing of value.
42 3. "Proceeds" means any property obtained by a defendant through the
43 commission of an offense, and includes any appreciation in value of such
44 property.
45 4. "Substituted proceeds" means any property obtained by the defendant
46 by the sale or exchange of proceeds of an offense, and any gain realized
47 by such sale or exchange.
48 5. "Instrumentality of an offense" means any property, other than real
49 property and any buildings, fixtures, appurtenances, and improvements
50 thereon, whose use contributes directly and materially to the commission
51 of an offense.
52 6. "Real property instrumentality of a crime" means an interest in
53 real property the use of which contributes directly and materially to
54 the commission of a specified offense.
55 7. "Specified offense" means a conviction of a person for motor vehi-
56 cle theft as defined by section 10.00 of this chapter, or where the
S. 1623 10
1 accusatory instrument charges one or more such offenses, conviction upon
2 a plea of guilty to any of the felonies for which plea is authorized by
3 law or a conviction of a person for conspiracy to commit an offense as
4 defined by section 10.00 of this chapter, together with evidence which
5 provides substantial indicia that the defendant used the real property
6 to engage in a continual, ongoing course of conduct involving the unlaw-
7 ful procuring, processing (dismantling), warehousing (storing), selling
8 and possession of stolen motor vehicles and/or stolen motor vehicle
9 parts.
10 § 495.05 Motor vehicle theft offenses; forfeiture.
11 1. When any person is convicted of an offense, the following property
12 is subject to forfeiture pursuant to this article:
13 (a) any property constituting the proceeds and/or the substituted
14 proceeds of such offense, unless the forfeiture is disproportionate to
15 the defendant's gain from or participation in the offense, in which
16 event the trier of fact may direct forfeiture of a portion thereof; and
17 (b) any property constituting an instrumentality of such offense,
18 other than real property instrumentality of a crime, unless such forfei-
19 ture is disproportionate to the defendant's gain from or participation
20 in the offense, in which event the trier of fact may direct forfeiture
21 of a portion thereof.
22 2. When any person is convicted of a specified offense, the real prop-
23 erty instrumentality of such specified offense is subject to forfeiture
24 pursuant to this article, unless such forfeiture is disproportionate to
25 the defendant's gain from or participation in the offense, in which
26 event the trier of fact may direct forfeiture of a portion thereof.
27 3. Property acquired in good faith by an attorney as payment for the
28 reasonable and bona fide fees of legal services or reimbursement of
29 reasonable and bona fide expenses related to the representation of a
30 defendant in connection with a civil or criminal forfeiture proceeding
31 or a related criminal matter, shall be exempt from a judgment of forfei-
32 ture. For purposes of this subdivision, "bona fide" means that the
33 attorney who acquired such property had no reasonable basis to believe
34 that the fee transaction was a fraudulent or sham transaction designed
35 to shield property from forfeiture, hide its existence from governmental
36 investigative agencies, or was conducted for any purpose other than
37 legitimate.
38 § 495.10 Procedure.
39 1. After the grand jury votes to file an indictment charging a person
40 with an offense as that term is defined in section 495.00 of this arti-
41 cle, it may subsequently receive evidence that property is subject to
42 forfeiture under this article. If such evidence is legally sufficient
43 and provides reasonable cause to believe that such property is subject
44 to forfeiture under this article, the grand jury shall file together
45 with the indictment a special forfeiture information specifying the
46 property for which the forfeiture is sought and containing a plain and
47 concise factual statement which sets forth the basis for the forfeiture.
48 Alternatively, where the defendant has waived indictment and has
49 consented to be prosecuted for an offense by superior court information
50 pursuant to article one hundred ninety-five of the criminal procedure
51 law, the prosecutor may, in addition to the superior court information,
52 file a special forfeiture information specifying the property for which
53 the forfeiture is sought and containing a plain and concise factual
54 statement which sets forth the basis of the forfeiture.
55 2. At any time before entry of a plea of guilty to an indictment or
56 commencement of a trial thereof, the prosecutor may file a superseding
S. 1623 11
1 special forfeiture information in the same court in accordance with the
2 provisions of subdivision one of this section. Upon the filing of such a
3 superseding forfeiture information the court must, upon application of
4 the defendant, order any adjournment of the proceedings which may, by
5 reason of such superseding forfeiture information, be necessary to
6 accord the defendant adequate opportunity to prepare his or her defense.
7 3. A motion to inspect and reduce the indictment made pursuant to
8 section 210.20 of the criminal procedure law may seek modification of a
9 special forfeiture information dismissing a claim with respect to any
10 property interest therein where the court finds the evidence before the
11 grand jury was legally insufficient to support a claim against such
12 interest.
13 4. The prosecutor shall promptly file a copy of the special forfeiture
14 information, including the terms thereof with the state division of
15 criminal justice services and with the local agency responsible for
16 criminal justice planning. Failure to file such information shall not be
17 grounds for any relief under this chapter.
18 5. In addition to information required to be disclosed pursuant to
19 article two hundred forty of the criminal procedure law, when forfeiture
20 is sought pursuant to this article, and following the defendant's
21 arraignment on the special forfeiture information, the court shall order
22 discovery of any information not otherwise disclosed which is material
23 and reasonably necessary for preparation by the defendant with respect
24 to a forfeiture proceeding brought pursuant to this article. Such mate-
25 rial shall include those portions of the grand jury minutes and such
26 other information which pertain solely to the special forfeiture infor-
27 mation and shall not include information which pertains to the criminal
28 charges. Upon application of the prosecutor, the court may issue a
29 protective order pursuant to section 240.40 of the criminal procedure
30 law with respect to any information required to be disclosed pursuant to
31 this subdivision.
32 6. (a) Trial of forfeiture counts by the jury or by the court.
33 Evidence which relates solely to the issue of forfeiture shall not be
34 presented during the trial on the underlying offense or specified
35 offense, and the defendant shall not be required to present such
36 evidence prior to the verdict on such offense. A defendant who does not
37 present evidence in his defense with respect to the trial of the under-
38 lying offense is not precluded on account thereof from presenting
39 evidence during the trial of the forfeiture count or counts.
40 (b) Trial of forfeiture counts by the jury. After returning a verdict
41 of guilty for the offense or specified offense, or where the defendant
42 has plead guilty to an offense or specified offense and has not waived a
43 jury trial of the forfeiture count or counts pursuant to article three
44 hundred twenty of the criminal procedure law, the jury shall be given
45 the forfeiture information and shall hear any additional evidence which
46 is relevant and legally admissible upon the forfeiture count or counts.
47 After hearing such evidence, the jury shall then deliberate upon the
48 forfeiture count or counts, and based upon all of the evidence admitted
49 in connection with the indictment or superior court information and the
50 forfeiture information may, if satisfied by proof beyond a reasonable
51 doubt that the property, or a portion thereof, is subject to forfeiture
52 pursuant to this article, return a verdict directing that such property
53 or portion thereof, is subject to forfeiture.
54 (c) Trial of the forfeiture counts by the court. Where a defendant has
55 waived a jury trial of the forfeiture count or counts pursuant to arti-
56 cle three hundred twenty of the criminal procedure law, the court shall
S. 1623 12
1 hear all evidence upon the forfeiture information and may, if satisfied
2 by proof beyond a reasonable doubt that the property, or a portion ther-
3 eof, is subject to forfeiture under this article, render a verdict
4 determining that such property, or a portion thereof, is subject to
5 forfeiture under this article.
6 (d) After the verdict of forfeiture, the court shall hear arguments
7 and may receive additional evidence upon the motion of the defendant
8 that the verdict of forfeiture (i) is against the weight of evidence, or
9 (ii) is, with respect to a forfeiture pursuant to this article,
10 disproportionate to the defendant's gain from the offense, or the
11 defendant's interest in the property, or the defendant's participation
12 in the conduct upon which the forfeiture is based. Upon such a finding,
13 the court may in the interest of justice set aside, modify, limit or
14 otherwise condition the verdict of forfeiture.
15 7. A final judgment or order of forfeiture issued pursuant to this
16 article shall authorize the prosecutor to seize all property directed to
17 be forfeited under this article upon such terms and conditions as the
18 court deems proper. If a property right is not exercisable or transfera-
19 ble for value by a prosecutor, it shall expire and shall not revert to
20 the convicted person.
21 8. Where the forfeited property consists of real property, the court
22 may at any time prior to a verdict of forfeiture, enter an order pursu-
23 ant to subdivision four-a of section thirteen hundred eleven of the
24 civil practice law and rules.
25 9. No person shall forfeit any right, title or interest in any proper-
26 ty under this article who has not been convicted of an offense or speci-
27 fied offense, as the case may be. Any person claiming an interest in
28 property subject to forfeiture may institute a special proceeding to
29 determine that claim, before or after the trial, pursuant to section
30 thirteen hundred twenty-seven of the civil practice law and rules;
31 provided, however, that if such special proceeding is initiated before
32 trial on the forfeiture count or counts, it may, upon written motion of
33 the prosecutor and in the court's discretion, be postponed by the court
34 until completion of the trial. In addition, any person claiming an
35 interest in property subject to forfeiture may petition for remission as
36 provided for in subdivision seven of section thirteen hundred eleven of
37 the civil practice law and rules.
38 10. Testimony of the defendant or evidence derived therefrom intro-
39 duced in the trial of the forfeiture count may not be used by the prose-
40 cution in any post-trial motion proceedings, appeals, or retrials relat-
41 ing to the defendant's criminal liability for the underlying criminal
42 offense unless the defendant has previously referred to such evidence in
43 such post-trial proceeding, appeal, or retrial relating to the underly-
44 ing offense and the evidence is presented by the prosecutor in response
45 thereto. Upon vacatur or reversal on appeal of a judgment of conviction
46 upon which a verdict of forfeiture is based, any verdict of forfeiture
47 which is based upon such conviction shall also be vacated or reversed.
48 § 495.20 Disposal of property.
49 All property which is forfeited pursuant to this article shall be
50 disposed of in accordance with the provisions of section ninety-seven-
51 cccc of the state finance law. All reports required to be filed pursuant
52 to article thirteen-A of the civil practice law and rules by a claiming
53 authority shall be filed by the attorney-general on behalf of the super-
54 intendent of state police in a forfeiture action brought pursuant to
55 this article.
56 § 495.25 Election of remedies.
S. 1623 13
1 The imposition of a judgment or order of forfeiture pursuant to this
2 article with respect to a defendant's interest in property shall
3 preclude the imposition of a judgment or order of forfeiture with
4 respect to such interest in property pursuant to the provisions of any
5 other state or local law based upon the same criminal conduct.
6 § 495.30 Provisional remedies.
7 1. The provisional remedies authorized by article thirteen-A of the
8 civil practice law and rules shall be available in an action for crimi-
9 nal forfeiture pursuant to this article to the extent and under the same
10 terms, conditions and limitations as provided in article thirteen-A of
11 such law and rules, except as specifically provided herein.
12 2. Upon the filing of an indictment and special forfeiture informa-
13 tion, or a superior court information and special forfeiture informa-
14 tion, seeking forfeiture pursuant to this article, all further
15 proceedings with respect to provisional remedies shall be heard by the
16 judge or justice in the criminal part to which the criminal action is
17 assigned.
18 3. For purposes of this section, the indictment and special forfeiture
19 information or superior court information and special forfeiture infor-
20 mation seeking criminal forfeiture shall constitute the summons with
21 notice or summons and verified complaint referred to in article thir-
22 teen-A of the civil practice law and rules.
23 § 495.35 Rebuttable presumption.
24 1. In a criminal forfeiture proceeding commenced pursuant to this
25 article, the following rebuttable presumption shall apply: all currency
26 or negotiable instruments payable to the bearer shall be presumed to be
27 the proceeds of a felony offense when such currency or negotiable
28 instruments are (a) found in close proximity to a stolen motor vehicle
29 or the parts thereof or (b) found on the premises or in close proximity
30 to real property which is used to engage in a continual, ongoing course
31 of conduct involving the unlawful procuring, processing, dismantling,
32 warehousing, storing, and selling of stolen motor vehicles and/or stolen
33 motor vehicle parts under circumstances evincing an intent to unlawfully
34 possess, procure, process, or sell a stolen motor vehicle or the parts
35 thereof.
36 2. The presumption established by this section shall be rebutted by
37 creditable and reliable evidence which tends to show that such currency
38 or negotiable instruments payable to the bearer is not the proceeds of a
39 felony offense. In an action tried before a jury, the jury shall be so
40 instructed. Any sworn testimony of a defendant offered to rebut the
41 presumption and any other evidence which is obtained as a result of such
42 testimony, shall be inadmissible in any subsequent proceeding relating
43 to the forfeiture action, or in any other civil or criminal action,
44 except in a prosecution for a violation of article two hundred ten of
45 this chapter. In an action tried before a jury, at the commencement of
46 the trial, or at such other time as the court reasonably directs, the
47 prosecutor shall provide notice to the court and to the defendant of its
48 intent to request that the court charge such presumption.
49 § 24. Subdivision 4-b of section 1310 of the civil practice law and
50 rules is amended by adding a new paragraph (d) to read as follows:
51 (d) a conviction of a person for motor vehicle theft, as defined in
52 section 10.00 of the penal law, or where the accusatory instrument
53 charges such an offense, conviction upon a plea of guilty to any of the
54 offenses for which such plea is otherwise authorized by law, or a
55 conviction of a person for conspiracy where the stolen vehicle or parts
56 thereof are the object of the conspiracy and are located in the real
S. 1623 14
1 property which is the subject of the forfeiture action, or where the
2 evidence indicates that the defendant used the real property to engage
3 in a continual, ongoing course of conduct involving the unlawful procur-
4 ing, processing, dismantling, warehousing, storing, selling and
5 possession of stolen motor vehicles and/or stolen motor vehicle parts.
6 § 25. The executive law is amended by adding a new section 217-a to
7 read as follows:
8 § 217-a. New York state police information network; access for certain
9 licensees of the department of motor vehicles. The superintendent shall
10 provide limited access to the communication system for the holders of
11 licenses from the department of motor vehicles pursuant to section four
12 hundred fifteen-a of the vehicle and traffic law. Such access shall
13 enable said licensees to conduct a search of vehicle identification
14 numbers to determine if said vehicle or part has been reported stolen or
15 abandoned. The superintendent shall ensure that said licensees are capa-
16 ble of printing a record of each such search. Nothing in this section
17 shall be construed as to allow any licensee access to any other informa-
18 tion maintained by such system.
19 § 26. Section 27-0303 of the environmental conservation law is amended
20 by adding a new subdivision 13 to read as follows:
21 13. "Potentially hazardous wastes" means any motor vehicle part or
22 fluid, including, but not limited to engine lubricating oil, fuel oil,
23 motor oil, gear oil, transmission fluid, hydraulic fluid, dielectric
24 fluid, tires, lead-acid or other automotive battery, freon or other
25 automotive air conditioning refrigerant, or engine coolant fluid, the
26 storage or disposal of which the commissioner, in consultation with the
27 commissioner of the department of motor vehicles, determines may pose a
28 threat to human health or the environment.
29 § 27. Section 27-0303 of the environmental conservation law is amended
30 by adding a new subdivision 14 to read as follows:
31 14. "Automotive waste handler" means any vehicle dismantler, salvage
32 pool, mobile car crusher, itinerant vehicle dismantler, or other busi-
33 ness enterprise licensed in accordance with section four hundred
34 fifteen-a of the vehicle and traffic law.
35 § 28. The environmental conservation law is amended by adding a new
36 section 27-0309 to read as follows:
37 § 27-0309. Storage of potentially hazardous wastes.
38 1. The commissioner shall promulgate such rules and regulations as may
39 be necessary to ensure that automotive waste handlers take such steps as
40 may be necessary to ensure that potentially hazardous wastes are not
41 released into the environment.
42 2. Every automotive waste handler shall keep a record, pursuant to
43 section four hundred fifteen-a of the vehicle and traffic law, of the
44 storage and disposal of any potentially hazardous wastes.
45 3. The possession of any motor vehicle, or identifiable part thereof,
46 by an automotive waste handler shall create a rebuttable presumption
47 that said handler possessed the entire vehicle, including any potential-
48 ly hazardous wastes. Such presumption shall include responsibility for
49 the abandonment of the vehicle or parts thereof, or the illegal disposal
50 of said vehicles or parts. Such presumption may be rebutted by a certif-
51 ication, on a form designated by the commissioner, signed by the automo-
52 tive waste handler and the seller of the motor vehicle part that the
53 handler purchased only that part. Such certification shall include an
54 acknowledgement that signing a false certification shall subject the
55 individual to the same penalties as if he had been duly sworn.
S. 1623 15
1 4. The requirements of this section shall not be construed as to
2 relieve any automotive waste handler of responsibility for compliance
3 with any other statute, court decision, or regulation.
4 5. The officers of the division of law enforcement of the department,
5 investigators of the department of motor vehicles, sworn officers of the
6 water supply police employed by the city of New York, and officers and
7 members of the sanitation police of the department of sanitation of the
8 city of New York duly appointed as peace officers by such department,
9 are authorized to enforce the provisions of this section.
10 § 29. The public authorities law is amended by adding a new section
11 553-j to read as follows:
12 § 553-j. Motor vehicle theft prevention. 1. All bridge and tunnel
13 officers, sergeants, and lieutenants of the authority on or after the
14 effective date of this section shall participate in a training course on
15 motor vehicle theft prevention and investigation.
16 2. The authority shall promulgate regulations for the enforcement and
17 implementation of motor vehicle theft prevention programs; including but
18 not limited to the combat auto theft program established pursuant to
19 section two hundred twenty-three of the vehicle and traffic law, the
20 routine check of registrations authorized by section two hundred twen-
21 ty-three-a of the vehicle and traffic law, and the examination of tow
22 trucks authorized by subdivision three of section four hundred twenty-
23 four of the vehicle and traffic law; by its bridge and tunnel officers,
24 sergeants, and lieutenants.
25 3. On or before the first of June of each year, the authority shall
26 report to the temporary president of the senate and the speaker of the
27 assembly on the effectiveness of the implementation of motor vehicle
28 theft prevention programs by its personnel and on its facilities.
29 § 30. This act shall take effect on the first of November next
30 succeeding the date on which it shall have become a law; provided that
31 subdivision 10 of section 855 of the correction law as added by section
32 thirteen of this act shall survive the expiration of any other amend-
33 ments to such section 855, and provided further, however that any rules
34 or regulations necessary to carry out the provisions of this act shall
35 be promulgated before such date.