§ 410.00 Seizure and forfeiture of equipment used in photographing,
filming, producing, manufacturing, projecting or
distributing pornographic still or motion pictures.
1. Any peace officer, acting pursuant to his special duties, or
police officer of this state may seize any equipment used in the
photographing, filming, printing, producing, manufacturing or projecting
of pornographic still or motion pictures and may seize any vehicle or
other means of transportation, other than a vehicle or other means of
transportation used by any person as a common carrier in the transaction
of business as such common carrier, used in the distribution of such
obscene prints and articles and such equipment or vehicle or other means
of transportation shall be subject to forfeiture as hereinafter in this
section provided.
2. The seized property shall be delivered by the police officer or
peace officer having made the seizure to the custody of the district
attorney of the county wherein the seizure was made, except that in the
cities of New York, Yonkers and Buffalo, the seized property shall be
delivered to the custody of the police department of such cities,
together with a report of all the facts and circumstances of the
seizure.
3. It shall be the duty of the district attorney of the county
wherein the seizure was made, if elsewhere than in the cities of New
York or Buffalo, and where the seizure is made in either such city it
shall be the duty of the corporation counsel of the city, to inquire
into the facts of the seizure so reported to him and if it appears
probable that a forfeiture has been incurred, 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, at any
time after thirty days from the date of seizure, to declare such
forfeiture, unless, upon inquiry and examination such district attorney
or corporation counsel decides that such proceedings can not 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
or corporation counsel shall cause such seized property to be returned
to the owner thereof.
4. Notice of the institution of the forfeiture proceeding shall be
served either (a) personally on the owners of the seized property or (b)
by registered mail to the owners' last known address and by publication
of the notice once a week for two successive weeks in a newspaper
published or circulated in the county wherein the seizure was made.
5. Forfeiture shall not be adjudged where the owners established by
preponderance of the evidence that (a) the use of such seized property
was not intentional on the part of any owner, or (b) 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.
6. The district attorney or the police department having custody of
the seized property, after such judicial determination of forfeiture,
shall, by a public notice of at least five days, sell such forfeited
property at public sale. The net proceeds of any such sale, after
deduction of the lawful expenses incurred, shall be paid into the
general fund of the county wherein the seizure was made except that the
net proceeds of the sale of property seized in the cities of New York
and Buffalo shall be paid into the respective general funds of such
cities.
7. 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 subdivision five of this section and that the
petitioner was without personal or actual knowledge of the forfeiture
proceeding. If the petition 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, police department or
corporation counsel.
8. No suit or action under this section for wrongful seizure shall be
instituted unless such suit or action is commenced within two years
after the time when the property was seized.
9. For the purposes of this section only, a pornographic still or
motion picture, is defined as a still or motion picture showing acts of
sexual intercourse or acts of sexual perversion. This section shall not
be construed as applying to bona fide medical photographs or films.
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