Section 3388. Seizure and forfeiture of vehicles, vessels or aircraft unlawfully used to conceal, convey or transport controlled substances

1. Except as authorized in this article, it shall be unlawful to:
    (a)  transport, carry, or convey any controlled substance in, upon, or
  by means of any vehicle, vessel or aircraft; or
    (b) conceal or  possess  any  controlled  substance  in  or  upon  any
  vehicle, vessel or aircraft, or upon the person of anyone in or upon any
  vehicle, vessel or aircraft; or
    (c)   use   any   vehicle,   vessel  or  aircraft  to  facilitate  the
  transportation, carriage, conveyance, concealment, receipt,  possession,
  purchase, or sale of any controlled substance.
    2.  Any vehicle, vessel or aircraft which has been or is being used in
  violation of subdivision one, except a vehicle, vessel or aircraft  used
  by any person as a common carrier in the transaction of business as such
  common  carrier shall be seized by any peace officer, acting pursuant to
  his special duties, or police officer, and forfeited as  hereinafter  in
  this  section  provided. A vehicle, vessel or aircraft is not subject to
  forfeiture unless used in connection with acts or  conduct  which  would
  constitute a felony under article 220 of the penal law.
    3.  The  seized property shall be delivered by the 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, Rochester and Buffalo the seized property shall be delivered to
  the custody of the police department of such cities  and  such  property
  seized  by a member or members of the state police shall be delivered to
  the custody of the superintendent  of  state  police,  together  with  a
  report of all the facts and circumstances of the seizure.
    4. It shall be the duty of the attorney general in seizures by members
  of  the  state  police,  otherwise  it shall be the duty of the district
  attorney of the county wherein the seizure is made, if elsewhere than in
  the cities of New York, Yonkers, Rochester or  Buffalo,  and  where  the
  seizure  is  made in such cities 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 by reason of a violation of this section, 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, not later than twenty days after written demand by a  person
  claiming  ownership  thereof,  to  declare such forfeiture, unless, upon
  inquiry and examination, such district  attorney,  attorney  general  or
  corporation  counsel  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, the attorney general or corporation counsel shall  cause  such
  seized  property  to be returned to the owner thereof. The procedure for
  proceedings instituted under this  section  shall  conform  as  much  as
  possible to the procedure for attachment.
    5.  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.
    6.  Forfeiture  shall  not  be  adjudged where the owners establish by
  preponderance of the evidence that:
    (a) the use of such seized property, in violation of  subdivision  one
  of this section, was not intentional on the part of any owner; or

    (b)  said  seized property was used in violation of subdivision one of
  this section 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.
    7.  The  district  attorney, the superintendent of state police or the
  police department having custody of  the  seized  property,  after  such
  judicial determination of forfeiture, shall, at their discretion, either
  retain  such  seized  property  for  the  official  use of their office,
  division or department, or, by a public notice of at  least  five  days,
  sell  such  forfeited  property  at public sale; provided, however, that
  where such property is subject to a perfected lien such property may not
  be retained for their official use unless all such liens on the property
  to be retained have been or will be satisfied. 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, Yonkers, Rochester and Buffalo shall  be  paid  into
  the respective general funds of such cities, and of the sale of property
  seized by the state police into the general fund of the state.
    8.  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 six  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.
    9. 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.