§ 512-5. Disposal of seized property.

A. 

The seized property shall be delivered by the police or environmental conservation officer having made the seizure to the custody of the District Attorney of the County, together with a report of all the facts and circumstances of the seizure.

B. 

It shall be the duty of the District Attorney to inquire into the facts of the seizure so reported to him and, if it appears probable that a forfeiture has been incurred by reason of a violation of this article, for the determination of which the institution of proceedings in the Supreme Court is necessary, to cause the proper proceedings to be commenced and prosecuted, within seven days from the date of seizure, to declare such forfeiture, unless, upon inquiry and examination, the District Attorney decides that such proceedings cannot probably be sustained or that the ends of public justice do not require that they should be instituted or prosecuted, in which case the District Attorney shall cause such seized property to be immediately returned to the owner thereof.

C. 

Service of notice.

(1) 

Notice of the institution of the forfeiture proceeding shall be served:

(a) 

Personally on the owner(s) of the seized property.

(b) 

Where service cannot with due diligence be made under Subsection C(1), by registered mail to the owner's(s') last known address and by publication of the notice once a week for two consecutive weeks in a newspaper published or circulated in Suffolk County.

(2) 

The District Attorney shall make reasonable effort to ascertain the existence and identity of any lienholders of the seized property; and if such lienholders are ascertained, they shall be notified of forfeiture proceedings in compliance with procedures of notice pursuant to Subsection C(1)(a) and (b) above.

D. 

The forfeiture proceeding shall be conducted as a civil in rem action in which the District Attorney shall have the burden of proving all material facts by a preponderance of credible evidence. Forfeiture shall not be adjudged where the owner(s) establishes by a preponderance of the evidence that:

(1) 

The use of such seized property was not intentional on the part of an owner and the owner did all that could reasonably have been expected of him to prevent illegal use of the seized property and that owner acted reasonably under all the circumstances.

(2) 

Said seized property was used by any person other than an owner thereof, while such seized property was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of the United States or of any state.

E. 

The District Attorney or the police having custody of the seized property, after such judicial determination of forfeiture, shall dispose of the property seized in any manner not prohibited by law, including:

(1) 

Use by a law enforcement or other public agency.

(2) 

Sale at a public auction, upon public notice of at least five days. The net proceeds of any such sale, after deduction of the lawful expenses incurred, shall be paid into the general fund of Suffolk County. Such sale should take place within due regard for the rights of innocent third parties with no knowledge of the illegal activity who hold legitimate recorded liens. Such lienholder should be permitted to intervene in the aforementioned forfeiture proceedings as a matter of right, and any sale of the seized property shall be made subject to said recorded lien.

F. 

Whenever any person interested in any property which is seized and declared forfeited under the provisions of this section files with a Justice of the Supreme Court a petition for the recovery of such forfeited property, the Justice of the Supreme Court may restore said forfeited property upon such terms and conditions as he deems reasonable and just, if the petitioner establishes either of the affirmative defenses set forth in Subsection D of this section and that the petitioner was without personal or actual knowledge of the forfeiture proceeding. If the petition shall be filed after the sale of the forfeited property, any judgment in favor of the petitioner shall be limited to the net proceeds of such sale, after deduction of the lawful expenses and costs incurred by the District Attorney.

G. 

Nothing contained herein shall be construed as impairing the right or jurisdiction of any department, agency or person having lawful authority to dispose of hazardous wastes seized incidental to execution of the authority granted in this article.