Section 11-4001
* § 11-4001 Definitions. (a) As used in this chapter, the term
"person" shall include, but shall not be limited to, an individual,
corporation (including a dissolved corporation), partnership,
association, trust or estate.
(b) As used in this chapter, the term "person" shall also include an
officer, employee or agent of a corporation; a member, employee or agent
of a partnership or association; an employee or agent of an individual
proprietorship; an employee or agent of an estate or trust; or a
fiduciary.
* NB Added Ch. 765/85 § 82, language juxtaposed per Ch. 907/85 § 14
* NB Number supplied by the Legislative Bill Drafting Commission
(c) As used in this chapter, the term "felony" and the term
"misdemeanor" shall have the same meaning as they have in the penal law,
and the disposition of such offenses and the sentences imposed therefor
shall be as provided in such law, except: (1) notwithstanding the
provisions of paragraph a of subdivision one of section 80.00 and
paragraph (a) of subdivision one of section 80.10 of the penal law
relating to the fine for a felony, the court may impose a fine not to
exceed the greater of double the amount of the underpaid tax liability
resulting from the commission of the crime or fifty thousand dollars,
or, in the case of a corporation the fine may not exceed the greater of
double the amount of the underpaid tax liability resulting from the
commission of the crime or two hundred fifty thousand dollars, and (2)
notwithstanding the provisions of subdivision one of section 80.05 and
paragraph (b) of subdivision one of section 80.10 of the penal law
relating to the fine for a class A misdemeanor, the court may impose a
fine not to exceed ten thousand dollars, except that in the case of a
corporation the fine may not exceed twenty thousand dollars.
(d) As used in this chapter:
(1) "city" shall mean the city of New York; and
(2) "state" shall mean the state of New York.
Section 11-4002
§ 11-4002 Tax fraud acts. (a) As used in this chapter, "tax fraud act"
means willfully engaging in an act or acts or willfully causing another
to engage in an act or acts pursuant to which a person:
(1) fails to make, render, sign, certify, or file any return or report
required under the provisions of any designated chapter of this title or
any rule or regulation promulgated thereunder within the time required
by or under the provisions of any designated chapter of this title or
such rule or regulation;
(2) knowing that a return, report, statement or other document under
any designated chapter of this title contains any materially false or
fraudulent information, or omits any material information, files or
submits that return, report, statement or document with the city or the
state, or with any public office or public officer of the city or the
state;
(3) knowingly supplies or submits materially false or fraudulent
information in connection with any return, audit, investigation, or
proceeding or fails to supply information within the time required by or
under the provisions of any designated chapter of this title or any rule
or regulation promulgated under any designated chapter of this title;
(4) engages in any scheme to defraud the city or the state or a
government instrumentality of the city or of the state by false or
fraudulent pretenses, representations or promises as to any material
matter, in connection with any tax imposed under any designated chapter
of this title or any matter under any designated chapter of this title;
(5) fails to remit any tax collected in the name of the city or the
state or on behalf of the city or the state when such collection is
required under any designated chapter of this title;
(6) fails to collect any tax required to be collected under chapter
twelve, thirteen, twenty-three-A, twenty-three-B or twenty-five of this
title;
(7) with intent to evade any tax imposed under any designated chapter
of this title, fails to pay that tax; or
(8) issues an exemption certificate, interdistributor sales
certificate, resale certificate, or any other document capable of
evidencing a claim that taxes imposed under a designated chapter of this
title do not apply to a transaction, which he or she does not believe to
be true and correct as to any material matter, which omits any material
information, or which is false, fraudulent, or counterfeit.
(b) For purposes of this section, the term "willfully" shall mean
acting with either intent to defraud, intent to evade the payment of
taxes or intent to avoid a requirement of this title, a lawful
requirement of the commissioner or a known legal duty.
(c) For purposes of this chapter, the term "designated chapter" shall
mean chapter five, six, seven, eight, nine, eleven, twelve, thirteen,
fourteen, fifteen, twenty-one, twenty-two, twenty-three-A, twenty-four,
twenty-five or twenty-seven of this title.
Section 11-4003
§ 11-4003 City criminal tax fraud in the fifth degree. A person
commits city criminal tax fraud in the fifth degree when he or she
commits a tax fraud act. City criminal tax fraud in the fifth degree is
a class A misdemeanor.
Section 11-4004
§ 11-4004 City criminal tax fraud in the fourth degree. A person
commits city criminal tax fraud in the fourth degree when he or she
commits a tax fraud act or acts and, with the intent to evade any tax
due under any designated chapter of this title, or to defraud the city
or the state or any instrumentality of the city or the state, the person
pays the city or the state or any public office or public officer of the
city or the state or any instrumentality of the city or state (whether
by means of underpayment or receipt of refund or both), in a period of
not more than one year in excess of three thousand dollars less than the
tax liability that is due. City criminal tax fraud in the fourth degree
is a class E felony.
Section 11-4005
§ 11-4005 City criminal tax fraud in the third degree. A person
commits city criminal tax fraud in the third degree when he or she
commits a tax fraud act or acts and, with the intent to evade any tax
due under any designated chapter of this title, or to defraud the city
or the state or any instrumentality of the city or the state, the person
pays the city or the state or any public office or public officer of the
city or the state or any instrumentality of the city or state (whether
by means of underpayment or receipt of refund or both), in a period of
not more than one year in excess of ten thousand dollars less than the
tax liability that is due. City criminal tax fraud in the third degree
is a class D felony.
Section 11-4006
§ 11-4006 City criminal tax fraud in the second degree. A person
commits city criminal tax fraud in the second degree when he or she
commits a tax fraud act or acts and, with the intent to evade any tax
due under any designated chapter of this title, or to defraud the city
or the state or any instrumentality of the city or the state, the person
pays the city or the state or any public office or public officer of the
city or the state or any instrumentality of the city or state (whether
by means of underpayment or receipt of refund or both), in a period of
not more than one year in excess of fifty thousand dollars less than the
tax liability that is due. City criminal tax fraud in the second degree
is a class C felony.
Section 11-4007
§ 11-4007 City criminal tax fraud in the first degree. A person
commits city criminal tax fraud in the first degree when he or she
commits a tax fraud act or acts and, with the intent to evade any tax
due under any designated chapter of this title, or to defraud the city
or the state or any instrumentality of the city or the state, the person
pays the city or the state or any public office or public officer of the
city or the state or any instrumentality of the city or state (whether
by means of underpayment or receipt of refund or both), in a period of
not more than one year in excess of one million dollars less than the
tax liability that is due. City criminal tax fraud in the first degree
is a class B felony.
Section 11-4008
§ 11-4008 Aggregation. For purposes of this chapter, the payments due
and not paid under any designated chapter of this title pursuant to a
common scheme or plan or due and not paid, within one year, may be
charged in a single count, and the amount of underpaid tax liability
incurred, within one year, may be aggregated in a single count.
Section 11-4009
§ 11-4009 Non-preemption; penal law anticipatory offenses and
accessorial liability apply. (a) Unless expressly stated otherwise, the
penalties provided in this chapter or under any other chapter of this
title shall not preclude prosecution for any offense under the penal law
or any other criminal statute.
(b) The offenses specified in title G of the penal law and the
provisions of article twenty of the penal law are applicable to all
offenses defined in this chapter.
Section 11-4010
* § 11-4010 Failure to obey subpoenas; false testimony. (a) Any person
who, being duly subpoenaed, pursuant to chapter five, six, seven, eight,
nine, eleven, twelve, thirteen, fourteen, fifteen, twenty-one,
twenty-two, twenty-four, twenty-five or twenty-seven of this title or
the provisions of the civil practice law and rules, in connection with a
matter arising under any of such chapters, to attend as a witness or to
produce books, accounts, records, memoranda, documents or other papers,
(i) fails or refuses to attend without lawful excuse, (ii) refuses to be
sworn, (iii) refuses to answer any material and proper question, or (iv)
refuses, after reasonable notice, to produce books, papers and documents
in his or her possession or under his or her control which constitute
material and proper evidence shall be guilty of a misdemeanor.
(b) Any person who shall testify falsely in any material matter
pending before the commissioner of finance with respect to any of the
chapters specified in subdivision (a) shall be guilty of and punishable
for perjury.
* NB Added Ch. 765/85 § 82, language juxtaposed per Ch. 907/85 § 14
* NB Number supplied by the Legislative Bill Drafting Commission
Section 11-4011
* § 11-4011 Failure to file bond. Any person willfully failing to file
a bond where such filing is required pursuant to section 11-1203,
11-1304 or 11-2505 of this title shall be guilty of a misdemeanor.
* NB Added Ch. 765/85 § 82, language juxtaposed per Ch. 907/85 § 14
* NB Number supplied by the Legislative Bill Drafting Commission
Section 11-4012
** § 11-4012 Cigarette tax. (a) Attempt to evade or defeat tax. Any
person who willfully attempts in any manner to evade or defeat any tax
imposed by chapter thirteen of this title or payment thereof where: (1)
such tax is unpaid on ten thousand cigarettes or more or (2) such person
has previously been convicted two or more times of a crime set forth in
this chapter relating to cigarette taxes; shall be guilty of a class E
felony.
(b) Any person, other than an agent so authorized by the commissioner
of finance, who possesses or transports for the purpose of sale any
unstamped or unlawfully stamped packages of cigarettes subject to tax
under chapter thirteen of this title, or who sells or offers for sale
unstamped or unlawfully stamped packages of cigarettes in violation of
the provisions of such chapter shall be guilty of a misdemeanor. Any
person who violates the provisions of this subdivision after having
previously been convicted of a violation of this subdivision within the
preceding five years shall be guilty of a class E felony.
(c) (1) Any person, other than an agent so authorized by the
commissioner of finance, who willfully possesses or transports for the
purpose of sale ten thousand or more cigarettes subject to the tax
imposed by chapter thirteen of this title in any unstamped or unlawfully
stamped packages or who willfully sells or offers for sale ten thousand
or more cigarettes in any unstamped or unlawfully stamped packages in
violation of such chapter shall be guilty of a class E felony.
(2) Any person, other than an agent appointed by the commissioner of
finance, who willfully possesses or transports for the purpose of sale
thirty thousand or more cigarettes subject to the tax imposed by chapter
thirteen of this title in any unstamped or unlawfully stamped packages
or who willfully sells or offers for sale thirty thousand or more
cigarettes in any unstamped or unlawfully stamped packages in violation
of such chapter shall be guilty of a class D felony.
* (d) For the purposes of this section, the possession or
transportation within this city by any person, other than an agent, at
any one time of five thousand or more cigarettes in unstamped or
unlawfully stamped packages shall be presumptive evidence that such
cigarettes are possessed or transported for the purpose of sale and are
subject to the tax imposed by chapter thirteen of this title. With
respect to such possession or transportation, any provisions of chapter
thirteen of this title providing for a time period during which a use
tax imposed by such chapter may be paid on unstamped cigarettes or
unlawfully or improperly stamped cigarettes or during which such
cigarettes may be returned to an agent shall not apply. The possession
within this city of more than four hundred cigarettes in unstamped or
unlawfully stamped packages by any person other than an agent at any one
time shall be presumptive evidence that such cigarettes are subject to
tax as provided by chapter thirteen of this title.
* NB Added Ch. 765/85 § 82, language juxtaposed per Ch. 907/85 § 14
* (e) Nothing in this section shall apply to common or contract
carriers or warehouseman while engaged in lawfully transporting or
storing unstamped packages of cigarettes as merchandise, nor to any
employee of such carrier or warehouseman acting within the scope of his
employment, nor to public officers or employees in the performance of
their official duties requiring possession or control of unstamped or
unlawfully stamped packages of cigarettes, nor to temporary incidental
possession by employees or agents of persons lawfully entitled to
possession, not to persons whose possession is for the purpose of aiding
police officers in performing their duties.
* NB Added Ch. 765/85 § 82, language juxtaposed per Ch. 907/85 § 14
(f) Any willful act or omission, other than those described in section
11-4002 of this chapter or subdivision (a), (b), (c), (d), (e) or (g) of
this section, by any person which constitutes a violation of any
provision of chapter thirteen of this title or subchapter one of chapter
two of title twenty of the code shall constitute a misdemeanor.
* (g) Any person who falsely or fraudulently makes, alters or
counterfeits any stamp prescribed by the commissioner of finance under
the provisions of chapter thirteen of this title, or causes or procures
to be falsely or fraudulently made, altered or counterfeited any such
stamp, or knowingly and willfully utters, purchases, passes or tenders
as true any such false, altered or counterfeited stamp, or knowingly and
willfully possess any cigarettes in packages bearing any such false,
altered or counterfeited stamp, and any person who knowingly and
willfully makes, causes to be made, purchases or receives any device for
forging or counterfeiting any stamp, prescribed by the commissioner of
finance under the provisions of chapter thirteen of this title, or who
knowingly and willfully possesses any such device, shall be guilty of a
class E felony. For the purposes of this subdivision, the words "stamp
prescribed by the commissioner of finance" shall include a stamp,
impression or imprint made by a metering machine, the design of which
has been approved by the commissioner of finance and the state tax
commission.
* NB Added Ch. 765/85 § 82, language juxtaposed per Ch. 907/85 § 14
** NB Number supplied by the Legislative Bill Drafting Commission
Section 11-4014
* § 11-4014 Tax on commercial motor vehicles and motor vehicles for
transportation of passengers. (a) Any person who counterfeits or forges,
or causes or procures to be counterfeited or forged, or aids or assists
in counterfeiting or forging, by any way, art, or means, any stamp,
indicia of payment or indicia that no tax is payable authorized by
chapter eight of this title, or who knowingly acquires, possesses,
disposes of or uses such a counterfeited or forged stamp, indicia of
payment or indicia that no tax is payable, or who transfers a stamp,
indicia of payment or indicia that no tax is payable where such a
transfer is not authorized by such chapter shall be guilty of a
misdemeanor.
(b) The owner or driver of any motor vehicle subject to the tax
imposed by chapter eight who, upon demand, shall fail to exhibit the
stamp or other indicia of payment of the tax to the commissioner of
finance, his duly authorized agent or employee, or any police officer of
this city or state, as required by subdivision a of section 11-809 of
such chapter, shall be guilty of a misdemeanor.
* NB Added Ch. 765/85 § 82, language juxtaposed per Ch. 907/85 § 14
* NB Number supplied by the Legislative Bill Drafting Commission
Section 11-4015
* § 11-4015 Tax on owners of motor vehicles. (a) Any person who
counterfeits or forges, or causes or procures to be counterfeited or
forged, or aids or assists in counterfeiting or forging, by any way,
art, or means, any receipt or other document evidencing payment or
exemption from the tax imposed by chapter twenty-two of this title, or
who knowingly acquires, possesses, disposes of or uses such a
counterfeited or forged receipt or other document, shall be guilty of a
misdemeanor.
(b) Any person who uses, operates or parks or permits the use,
operation or parking upon any public highway or street of a motor
vehicle owned by him or under his control for which the tax imposed by
chapter twenty-two has not been paid in accordance with the provisions
of such chapter and the regulations prescribed thereunder shall be
guilty of a misdemeanor. For the purpose of this subdivision any person
using, operating or parking a motor vehicle shall be presumed to be
doing so with the permission of the owner of such motor vehicle.
(c) To the extent that any other section of this chapter is applicable
to the tax imposed by chapter twenty-two, any reference in such section
to the commissioner of finance shall be deemed a reference to the
commissioner of motor vehicles or to the commissioner of finance if
designated as his agent.
* NB Added Ch. 765/85 § 82, language juxtaposed per Ch. 907/85 § 14
* NB Number supplied by the Legislative Bill Drafting Commission
Section 11-4016
§ 11-4016 Hotel room occupancy tax. (a) Any person who willfully fails
to file a registration certificate as required pursuant to the
provisions of chapter twenty-five of this title and such data in
connection therewith as the commissioner of finance by regulation or
otherwise may require, or willfully fails to display or surrender a
certificate of authority as required by chapter twenty-five of this
title, or willfully assigns or transfers such certificate of authority,
shall be guilty of a misdemeanor, provided, however, that the provisions
of this subdivision shall not apply to a failure to surrender a
certificate of authority which is required to be surrendered where
business never commenced.
(b) Any person who willfully fails to charge separately the tax
imposed under chapter twenty-five or willfully fails to state such tax
separately on any bill, statement, memorandum or receipt issued or
employed by such person upon which the tax is required to be stated
separately as provided in such chapter, or who shall refer or cause
reference to be made to this tax in a form or manner other than required
by such chapter, shall be guilty of a misdemeanor.
Section 11-4017
* § 11-4017 Violation of secrecy provisions. Any person who violates
the provisions of subdivision a of section 11-1214, subdivision (a) of
section 11-2415, subdivision a of section 11-2115, subdivision a of
section 11-1516, subdivision a of section 11-818, subdivision a of
section 11-716, subdivision a of section 11-2215, subdivision a of
section 11-1116, subdivision one of section 11-688, subdivision one of
section 11-538, subdivision a of section 11-2516, or subdivision a of
section 11-1414 of this title shall be guilty of a misdemeanor.
* NB Added Ch. 765/85 § 82, language juxtaposed per Ch. 907/85 § 14
* NB Number supplied by the Legislative Bill Drafting Commission
Section 11-4018
* § 11-4018 Other offenses. (a) Any person who willfully fails to keep
or retain any records required to be kept or retained by chapter seven,
twelve, fourteen, twenty-one, twenty-two, twenty-four or twenty-seven of
this title shall be guilty of a misdemeanor.
(b) Any person willfully simulating, altering, defacing, destroying or
removing any evidence of the filing of a return or the payment of a tax
provided for in chapter twenty-one of this title shall be guilty of a
misdemeanor.
(c) Any person failing to file a certificate of registration or
information registration certificate as required by chapter eight of
this title shall be guilty of a misdemeanor.
(d) Any person refusing access to personnel authorized by the
commissioner of finance to inspect any vault or any premises concerning
which a return or information return may be required under chapter
twenty-seven of this title shall be guilty of a misdemeanor.
* NB Added Ch. 765/85 § 82, language juxtaposed per Ch. 907/85 § 14
* NB Number supplied by the Legislative Bill Drafting Commission
Section 11-4019
* § 11-4019 Jurisdiction. For purposes of the taxes imposed by chapter
five or six of this title: (a) any prosecution under this chapter may be
conducted in any county where the person against whom a violation or
violations of any of the provisions of this chapter are charged resides
or has a place of business, or from which such person received any
income, or in any county in which any such violation is committed; and
(b) notwithstanding any other provision of law, the corporation
counsel shall have concurrent jurisdiction with any district attorney in
the prosecution of any offenses under this chapter.
(c) notwithstanding any other provision of law, the attorney general
shall have concurrent jurisdiction with the corporation counsel and with
any district attorney in the prosecution of any offenses under this
chapter relating to the tax imposed by chapter thirteen of this title,
as well as any offenses arising out of such prosecution.
* NB Added Ch. 765/85 § 82, language juxtaposed per Ch. 907/85 § 14
* NB Number supplied by the Legislative Bill Drafting Commission
Section 11-4020
* § 11-4020 Disposition of fines. All fines levied under this chapter
shall be paid to the commissioner of finance and deposited in the
general fund of the city.
* NB Added Ch. 765/85 § 82, language juxtaposed per Ch. 907/85 § 14
* NB Number supplied by the Legislative Bill Drafting Commission
Section 11-4021
§ 11-4021 Seizure and forfeiture of cigarettes. (a) Whenever a police
officer designated in section 1.20 of the criminal procedure law or a
peace officer designated in subdivision five of section 2.10 of such
law, acting pursuant to his special duties, shall discover any
cigarettes subject to any tax provided by chapter thirteen of this
title, and upon which the tax has not been paid or the stamps not
affixed as required by such chapter, they are hereby authorized and
empowered forthwith to seize and take possession of such cigarettes,
together with any vending machine or receptacle in which they are held
for sale. Such cigarettes, vending machine or receptacle seized by a
police officer or such peace officer shall be turned over to the
commissioner of finance.
(b) The seized cigarettes and any vending machine or receptacle seized
therewith, but not the money contained in such vending machine or
receptacle shall thereupon be forfeited to the city, unless the person
from whom the seizure is made, or the owner of such seized cigarettes,
vending machine or receptacle, or any other person having an interest in
such property, shall within ten days of such seizure, apply to the
commissioner of finance for a hearing to determine the propriety of the
seizure, or unless the commissioner of finance shall on his own motion
release the seized cigarettes, vending machine or receptacle. After such
hearing the commissioner of finance shall give notice of his decision to
the petitioner. The decision of the commissioner shall be reviewable for
error, illegality, unconstitutionality or any other reason whatsoever by
a proceeding under article seventy-eight of the civil practice law and
rules if application therefor is made to the supreme court within thirty
days after the giving of the notice of such decision. Such proceeding
shall not be instituted unless there shall first be filed with the
commissioner of finance an undertaking, issued by a surety company
authorized to transact business in New York state and approved by the
superintendent of insurance of New York state as to solvency and
responsibility, in such amount as a justice of the supreme court shall
approve, to the effect that if such proceeding be dismissed, or the
seizure confirmed, the petitioner will pay all costs and charges which
may accrue in the prosecution of the proceeding.
(c) The commissioner of finance may, within a reasonable time after
the forfeiture to the city of such vending machines or receptacles, upon
publication of a notice to such effect for at least five successive
days, in a newspaper published or circulated in the city, sell such
forfeited vending machines or receptacles at public sale and pay the
proceeds into the treasury of the city to the credit of the general
fund. Such seized vending machines or receptacles may be sold prior to
forfeiture if the owner of the seized property consents to the sale.
Notwithstanding any other provision of this section, the commissioner of
finance may enter into an agreement with the state tax commission to
provide for the disposition between the city and state of the proceeds
from any such sale. The commissioner of finance may also transfer any
seized cigarettes to the state for destruction. All cigarettes forfeited
to the state shall be destroyed or used for law enforcement purposes,
except that cigarettes that violate, or are suspected of violating,
federal trademark laws or import laws shall not be used for law
enforcement purposes. If the commissioner determines the cigarettes may
not be used for law enforcement purposes, the commissioner of finance
must, within a reasonable time after the forfeiture to the city of such
cigarettes, upon publication of a notice to such effect for at least
five successive days, prior to destruction, in a newspaper published or
circulated in the city, destroy such forfeited cigarettes. Such
commissioner may, prior to any destruction of cigarettes, permit the
true holder of the trademark rights in the cigarettes to inspect such
forfeited cigarettes in order to assist in any investigation regarding
such cigarettes.
(d) In the alternative, the commissioner of finance, on reasonable
notice by mail or otherwise, may permit the person from whom said
cigarettes were seized to redeem the said cigarettes, and any vending
machine or receptacle seized therewith, or may permit the owner of any
such cigarettes, vending machine or receptacle to redeem the same, by
the payment of the tax due, plus a penalty of fifty percent thereof,
plus interest on the amount of tax due for each month or fraction
thereof after such tax became due (determined without regard to any
extension of time for filing or paying) at the rate applicable under
subdivision d of section 11-1317 of this title and the costs incurred in
such proceeding, which total payment shall not be less than five
dollars; provided, however, that such seizure and sale or redemption
shall not be deemed to relieve any person from fine or imprisonment
provided for in this chapter for violation of any provisions of this
chapter or chapter thirteen of this title.
(e) In the alternative, the commissioner of finance may dispose of any
cigarettes seized pursuant to this section, except those that violate,
or are suspected of violating, federal trademark laws or import laws, by
transferring them to the department of correction for sale to or use by
inmates in such institutions.
Section 11-4022
* § 11-4022 Filing of documents. For purposes of the prosecution of
offenses under the provisions of this title, reports, returns,
statements, other documents or other information required to be filed
with or delivered to the commissioner of finance shall include such
items which under the provisions of this title are required to be
recorded or filed with, served upon or delivered to another person,
including, but not limited to, a recording officer of any county within
the state, county clerk, any other governmental agency or entity, or
other entity in its capacity as an agent of the commissioner of finance.
* NB Added Ch. 765/85 § 82, language juxtaposed per Ch. 907/85 § 14
* NB Number supplied by the Legislative Bill Drafting Commission
Section 11-4023
§ 11-4023 Authority to seal premises. (a) If any person has been
finally determined to have engaged in the acts described in subdivision
b of this section, the commissioner of finance shall be authorized to
order:
(1) the sealing of any premises operated by such person where such
acts occurred; and
(2) the removal, sealing or making inoperable of any devices, items or
goods used in connection with any of such acts.
(b) The following acts shall serve as the basis for a sealing order
pursuant to this section:
(1) the violation of subdivisions a or b of section 11-1303 of this
title or section 17-703 or 20-202 of the code on at least two occasions
within a three-year period; or
(2) the violation of any provision of chapter thirteen of this title
or any of sections 17-703, 17-703.2, 17-704, 17-705, subdivision a or b
of section 17-706, 17-715 or 20-202 of the code on at least three
occasions within a three-year period.
(c) Orders of the commissioner to seal premises.
(1) Orders of the commissioner issued pursuant to this section shall
be posted at the premises at which the acts described in subdivision b
of this section have occurred.
(2) Ten days after the date of such posting, and upon the written
directive of the commissioner, police officers designated in section
1.20 of the criminal procedure law and peace officers employed by the
department of finance, including but not limited to the sheriff,
undersheriff and deputy sheriffs of the city of New York designated as
peace officers in subdivision two of section 2.10 of the criminal
procedure law, are authorized to act upon and enforce such orders.
(3) Any devices, items or goods removed pursuant to this section,
shall be stored in a garage, pound or other place of safety and the
owner or other person lawfully entitled to the possession of such
devices, items or goods may be charged with reasonable costs for removal
and storage payable prior to the release of such devices, items or goods
to such owner or such other person.
(4) The owner or other person lawfully entitled to reclaim the
devices, items or goods described in paragraph three of this subdivision
shall reclaim such devices, items or goods. If such owner or such other
person does not reclaim such devices, items or goods within ninety days
of their removal, such devices, items or goods shall be subject to
forfeiture upon notice and judicial determination in accordance with
provisions of law. Upon forfeiture the department shall, upon a public
notice of at least five days, sell such forfeited devices, items or
goods at public sale. The net proceeds of such sale, after deduction of
the lawful expenses incurred, shall be paid into the general fund of the
city.
(d) Unsealing of premises. The commissioner shall order that any
premises which are sealed pursuant to this section shall be unsealed and
that any devices, items or goods removed, sealed or otherwise made
inoperable pursuant to this section shall be released, unsealed or made
operable upon:
(1) payment of all outstanding cigarette taxes and civil penalties and
all reasonable costs for removal and storage; and
(2) the expiration of a period of time from the date of enforcement of
the order to be determined by the commissioner not to exceed sixty days.
(e) Any person aggrieved by an order issued pursuant to this section
may seek judicial review of such order through a proceeding pursuant to
article seventy-eight of the civil practice law and rules.
(f) Removal of seal. Any person who removes the seal on any premises
or removes the seal on or makes operable any devices, items or goods
sealed or otherwise made inoperable in accordance with an order of the
commissioner shall be guilty of a misdemeanor.
Section 11-4024
§ 11-4024 Seizure and forfeiture of taxed and lawfully stamped
cigarettes sold or possessed by unlicensed retail or wholesale dealers
and flavored tobacco products. (a) Whenever a police officer designated
in section 1.20 of the criminal procedure law or a peace officer
employed by the department of finance, including but not limited to the
sheriff, undersheriff or deputy sheriffs of the city of New York
designated as peace officers in subdivision two of section 2.10 of the
criminal procedure law, shall discover (1) any cigarettes subject to any
tax provided by chapter thirteen of this title, and upon which the tax
has been paid and the stamps affixed as required by such chapter, but
such cigarettes are sold, offered for sale or possessed by a person in
violation of section 11-1303, 17-703 or 20-202 of this code, or (2) any
flavored tobacco product that is sold, offered for sale or possessed
with intent to sell in violation of section 17-715 of this code, he or
she is hereby authorized and empowered forthwith to seize and take
possession of such cigarettes or flavored tobacco product, together with
any vending machine or receptacle in which such cigarettes or flavored
tobacco product are held for sale. Such cigarettes or flavored tobacco
product, vending machine or receptacle seized by such police officer or
such peace officer shall be turned over to the commissioner of finance.
(b) The seized cigarettes or flavored tobacco product and any vending
machine or receptacle seized therewith, but not the money contained in
such vending machine or receptacle, shall thereupon be forfeited to the
city, unless the person from whom the seizure is made, or the owner of
such seized cigarettes, flavored tobacco product, vending machine or
receptacle, or any other person having an interest in such property,
shall within ten days of such seizure, apply to the commissioner of
finance for a hearing to determine the propriety of the seizure, or
unless the commissioner of finance shall on his own motion release the
seized cigarettes, flavored tobacco product, vending machine or
receptacle. After such hearing the commissioner of finance shall give
notice of his decision to the petitioner. The decision of the
commissioner shall be reviewable for error, illegality,
unconstitutionality or any other reason whatsoever by a proceeding under
article seventy-eight of the civil practice law and rules.
(c) The commissioner of finance may, within a reasonable time after
the forfeiture to the city of such vending machine or receptacle under
this section, upon publication of a notice to such effect for at least
five successive days, in a newspaper published or circulated in the
city, sell such forfeited vending machine or receptacle at public sale
and pay the proceeds into the general fund of the city. Such seized
vending machine or receptacle may be sold prior to forfeiture if the
owner of the seized property consents to the sale. Cigarettes or
flavored tobacco product forfeited to the city under this section shall
be destroyed or used for law enforcement purposes, except that
cigarettes that violate, or are suspected of violating, federal
trademark laws or import laws shall not be used for law enforcement
purposes. If the commissioner determines the cigarettes forfeited under
this section may not be used for law enforcement purposes, the
commissioner of finance must, within a reasonable time after the
forfeiture to the city of such cigarettes, upon publication of a notice
to such effect for at least five successive days, prior to destruction,
in a newspaper published or circulated in the city, destroy such
forfeited cigarettes.
(d) In the alternative, the commissioner of finance, on reasonable
notice by mail or otherwise, may permit the person from whom a seizure
of cigarettes or flavored tobacco product under this section was made,
to redeem any vending machine or receptacle seized with such cigarettes
or flavored tobacco product, or may permit the owner of any such vending
machine or receptacle to redeem the same, upon the payment of any civil
penalty imposed pursuant to chapter seven of title seventeen or
subchapter one of chapter two of title twenty of this code and the costs
incurred in such proceeding.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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