Full Case Name:  The PEOPLE of the State of New York, Plaintiff, v. Michael SCOTT, Defendant.

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Country of Origin:  United States Court Name:  Criminal Court, City of New York, Bronx County. Primary Citation:  --- N.Y.S.3d ----, 2018 WL 1279067 (N.Y.Crim.Ct. Mar. 13, 2018) Date of Decision:  Tuesday, March 13, 2018 Judge Name:  Mary L. Bejarano Jurisdiction Level:  New York Alternate Citation:  2018 N.Y. Slip Op. 28075 Attorneys:  For Petitioner Animal Society for the Prevention of Cruelty to Animals (ASPCA), Bronx Legal Advocacy Counsel by Erin Satterthwaite, Esq. For the Respondent, The Bronx Defenders by Joshua Occhiogrosso–Schwartz, Esq. and Steven T. Hasty, Esq. For the People: Darcel Clarke, District Attorney, Bronx County (Joshua Satter, Esq.) Docket Num:  2017BX019564
Summary: This case dealt with a man charged with two counts of Overdriving, Torturing and Injuring Animals and Failure to Provide Sustenance, in violation of section 353 of the Agriculture and Markets Law (“AML”). On September 11, 2017, two Police Officers were called to an apartment building because tenants of the apartment building were complaining about a foul odor coming from the defendant's apartment unit. It was suspected that a dead body might be in the apartment based on the Officers' experience with dead body odors. Upon arrival the Officers could hear a dog on the other side of the door pacing and wagging its tail against the door. The Officers entered the apartment after getting no response from the tenant under the emergency doctrine. The Officers searched the apartment for a dead body but did not find one, but instead found a male German Shepard dog and a domestic shorthair cat, both of which were malnourished and emaciated. Their food and water bowls were empty and there was wet and dry feces and urine saturating the apartment unit floor. The police seized the animals and the vet that examined the animals concluded that the animals were malnourished and emaciated, and had been in those conditions for well over 12 hours. The defendant challenged the seizure of the animals and the subsequent security posting for costs incurred by the ASPCA for care of the dog for approximately 3 months. The court held that the defendant did violate a section of Article 26 of the AML, and that there was a valid warrant exception applicable to this case. Further, the court held that $2,567.21 is a reasonable amount to require the respondent/defendant to post as security.

Mary L. Bejarano, J.

*1 Defendant Michael Scott, the respondent in this petition, is charged with two counts of Overdriving, Torturing and Injuring Animals and Failure to Provide Sustenance, in violation of section 353 of the Agriculture and Markets Law (“AML”). The charges arise from allegations that the respondent deprived food and water to a male German Shepard dog and a domestic shorthair cat, causing malnourishment and emaciation of the animals.

Following a hearing pursuant to AML 373(6), the court now decides the following issues:

1. Does AML 373(2), a prerequisite in this petition, contain a warrant exception?

2. If there is a warrant exception, is one applicable in this case?

3. If the dog was lawfully seized under a warrant exception, did the petitioner establish by a preponderance of the evidence that the respondent violated a section in Article 26 of the AML?

4. If the petitioner did meet its burden, is $2,567.21 a reasonable amount to require the respondent to post as security?

PROCEDURAL HISTORY

On September 11, 2017, the Animal Society for the Prevention of Cruelty to Animals (“ASPCA”) removed a dog and cat1 from 501 East 161 Street, apartment 2B, in the Bronx. The following day, September 12, 2017, the respondent was arrested and issued a Desk Appearance Ticket. On November 21, 2017, the defendant was arraigned under the instant docket.

On January 17, 2018, ASPCA filed a petition pursuant to AML 373(6)(a) seeking an order for the respondent to post a security in the amount of $2,567.21, for the dog's medical and boarding expenses, incurred by the ASCPA between September 12, 2017 and December 5, 2017. In accordance with AML 373(6)(a)(1), this court ordered an evidentiary hearing on ASPCA's petition to take place on January 25, 2018. In the interim, the respondent filed a cross-motion for the return of the dog and, additionally, an opposition to the ASCPA's petition.

On January 25, 2018, the court denied the defendant's cross-motion for return of the dog, and adhered to its previous ruling to hold an evidentiary hearing. At the hearing, ASPCA called two witnesses: Police Officer Ginina Diaz and Dr. Allison Liu. The respondent called no witnesses but submitted proof of income from the Department of Veterans Affairs.2

I find the witnesses credible and based upon the evidence adduced at the hearing, I make the following findings of fact and conclusions of law.

FINDINGS OF FACT

Police Officer Ginina Diaz, Shield No. 23959, has been employed by the New York City Police Department for almost six years, and is currently assigned to the 42nd Precinct. On September 11, 2017, at approximately 1 PM, Officer Diaz and Detective Miranda Ortiz responded to a call regarding a foul odor emanating from 501 East 161 Street, apartment 2B.

Upon arriving to the location, the building manager informed the officers that the tenants have been complaining of a foul odor coming from apartment 2B on the second floor and mentioned the possibility of a dead body. The officers proceeded to the second floor, where Officer Diaz could smell the foul odor before even reaching the apartment. The stench led the officer, who has previously responded to calls involving a dead body, to believe that there was in fact a dead body inside of the apartment.

*2 Officer Diaz knocked on the apartment door but received no response. According to the neighbors, the resident of the apartment had not been seen in several days. However, the officer could hear a dog on the other side of the door, pacing back and forth; its tail wagging against the door. These circumstances prompted the officer to call the Emergency Service Unit3 (“ESU”) to open the door.

Upon gaining entry, the officer immediately realized that the stench, which the tenants complained of and permeated the second floor of the building, was from the animal waste that saturated the floors of the apartment. To be sure, the officers searched the apartment for a dead body and found none. In fact, only a dog and a cat were discovered in the apartment. The dog, while appearing friendly and wagging his tail, was abnormally thin and dehydrated. His ribs were noticeably protruding from under the thick fur; he was panting with his tongue sticking out.

The officer observed the animals' food and water bowls to be empty. The dry and wet feces and urine-soaked “pee pad” lead the officer to believe that the animals had been in this condition for an extended period. The officer filled the bowls with water and dog food that was found in the single bedroom of the apartment. The dog devoured the food and water but wanted more. Thereafter, without a warrant, the officers removed the animals from the apartment and transported them to the Animal Care Center (ACC) that same day.

On September 12, 2017, ACC transferred the dog to the care of the ASPCA. Dr. Allison Liu, an ASPCA forensic veterinarian, testified as an expert4 that she examined the dog on September 12, 2017 and continued to monitor his condition through December 5, 2017. The initial examination consisted of a physical examination, including weighing, conducting bloodwork, collecting urine and fecal samples, and taking vitals. An average of three weigh-ins showed the dog weighed only 63.1 pounds. An aerial view of his body showed a small, narrow waist.5 A palpation exam of his body revealed that, notwithstanding the thick coat of fur, his ribs and dorsal spines over the backbone were abnormally prominent. The dog's pelvic bones and scapula shoulder blades were also easily felt during the examination. He also had excessive shedding and diarrhea, which Dr. Liu attributed to stress. Based on this assessment, Dr. Liu concluded that the dog was emaciated and his condition was potentially life threatening.

Over the next three months, ASPCA continued to care for the dog, providing a balanced diet and monitoring his condition, even while he was in a foster home. On November 16, 2017, nine weeks after his initial intake, the dog weighed 83.6 pounds, a 20–pound increase, which Dr. Liu deemed a healthy weight for him. Dr. Liu testified that, assuming the dog started with this healthy body condition, it would have taken a period of several weeks to lose 20 pounds. Based on this significant weight increase and diagnostics revealing no underlying diseases, Dr. Liu concluded that the dog's emaciated condition was due to “chronic inadequate nutrition.” (January 25, 2017 Transcript at 36.) In other words, the dog was inadequately fed and malnourished prior to ASPCA's intervention.

*3 From September 12, 2017 to December 5, 2017, the period in which the dog remained in ASPCA's care, the organization paid $2,537.59 in boarding and medical expenses.6 Dr. Liu testified that since she had no prior history report for the dog, the diagnostics performed on him were necessary to determine the cause of his emaciated condition and treatment thereof.

CONCLUSIONS OF LAW

When a defendant is charged with violating a provision in Article 26 of the AML (“Article 26”), an impounding organization, such as the ASPCA, in custody of the animal named in the criminal complaint may file a petition with the court for a security posting to cover medical and boarding expenses of such animal (AML 373[6][a] ). The petition must be served on the defendant, who becomes the respondent, and the district attorney (AML 373[6][b][1] ). The court, upon receipt of the petition, must hold a hearing on the petition within 10 business days (id.). At the hearing, the petitioner must establish (1) that the animal was properly seized under one of five mechanisms enumerated in AML 373(1)—AML 373(5); (2) that the respondent has been arraigned for an offense contained in Article 26; (3) by the preponderance of the evidence that the respondent violated provision of Article 26, not limited to charge(s) in the criminal complaint; and (4) that the security amount requested represents reasonable costs incurred by the organization in caring for the seized animals. (See AML 373[6].)

Enacted in 1997, the purpose of this section is to assist animal shelters and humane societies, like the ASPCA, in paying for the care of seized animals from their owners via a court order (NY Bill Jacket, 1997 A.B. 2582, Ch. 79).

AML 373(2) Contemplates Warrant Exceptions
The parties in this case do not dispute that the applicable mechanism of seizure in this case is found in subdivision two of AML 373. AML 373(2) provides that:

A police officer may [ ] lawfully take possession of an animal in or upon any premises which for more than twelve successive hours has been confined or kept in a crowded or unhealthy condition or in unhealthful or unsanitary surroundings or not properly cared for or without necessary sustenance, food or drink, provided that a complaint stating just and reasonable grounds is made under oath or affirmation to any magistrate authorized to issue warrants in criminal cases, and that such warrants authorizing entry and search is issued and delivered by such magistrate; if just and reasonable cause is shown, the magistrate shall immediately issue such warrant.

Although the statute provides that a lawful seizure is predicated on a search warrant, since none was issued in this case, the petitioner urges this court to read a warrant exception into the statute. The petitioner further contends that the seizure of the dog was authorized under the emergency doctrine. The respondent argues that a plain reading of the statute prohibits the use of a warrant exception. The respondent further contends that since this proceeding is for the recovery of medical and boarding fees and not criminal in nature, Fourth Amendment principles, from which the emergency doctrine was conceived, is inapplicable.

This is a case of first impression. The court is not aware of any cases, upon its own research or cited by the parties, binding or persuasive, that is directly on point with this issue. However, upon careful examination of related statutes and existing case law, it is clear to the court that the purpose AML 373(2), by requiring a warrant to seize an animal within a private residence, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials (see US Const Amend IV; NY Const art 1, § 12). As such, this court is of the opinion that Fourth Amendment jurisprudence, specifically the emergency exception to the warrant requirement, is applicable here.

*4 The court finds unpersuasive the respondent's argument that the warrant exception only applies in suppression hearings. The Fourth Amendment provides that, “The right of the People to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmations, and particularly describing the place to be searched, and persons to be seized” (US Const Amend IV). Nowhere does it say that only individuals faced with criminal charges enjoy this constitutional protection. And, while it is true that Fourth Amendment jurisprudence is, by and large, seen in the criminal context, “[i]t is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior” (Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 530, 87 S.Ct. 1727, 18 L.Ed.2d 930 [1967] ).

Camera v. Municipal Court of City and County of San Francisco (id.) involved a routine administrative inspection of the physical condition of an individual's residence. The appellant, a lessee of the apartment subject to the administrative search and facing a criminal charge of violating the San Francisco Housing Code by refusing to permit a warrantless inspection of his residence, argued that the ordinance authorizing such warrantless inspections was unconstitutional on its face (id. at 525–575, 87 S.Ct. 1727). The Supreme Court held that the appellant had a constitutional right to insist that city housing inspector obtain a warrant to search his premises; and, as such, could not be constitutionally convicted for refusing the city housing code by refusing to consent to warrantless inspection. (id. at 540, 87 S.Ct. 1727; accord People v. D., 34 N.Y.2d 483, 487, 358 N.Y.S.2d 403, 315 N.E.2d 466 (1974) (New York Court of Appeals adopting the Supreme Court's holding, and ruling that the Fourth Amendment is applicable to school searches); see also People v. McIver, 124 A.D.2d 520, 521, 508 N.Y.S.2d 436 (1st Dept. 1986) (providing an exception in pervasively regulated industries when the administrative search is part of a regulatory scheme to further an urgent state interest) ).

Therefore, notwithstanding the warrant requirement under AML 373(2), a search by a state actor of an individual's home and seizure of property therein, as is the case here, would be subject to scrutiny under the Fourth Amendment. As such, ruling that the AML 373(2) warrant requirement is not a corollary of the Fourth Amendment and, thus, making the warrant exception inapplicable would be an unreasonable interpretation given an individual's fundamental privacy rights. Further, such an interpretation would undermine the State's effort in regulating the welfare of animals.

Moreover, the respondent's interpretation would bar the ASPCA from recovering the cost of care in situations where the respondent consents to the seizure of the animal, which would be an absurd outcome. (See Sabot v. Lavine, 42 N.Y.2d 1068, 1069, 399 N.Y.S.2d 640, 369 N.E.2d 1173 [1977] (“[a]ny statute however broad, must be interpreted and enforced in a reasonable and humane manner in accordance with its manifest intent and purpose).)

It is worth noting that an AML 373 proceeding is not criminal in nature, inasmuch the issue to be decided by the court is the respondent's pecuniary responsibility to ASPCA, disassociated from the main criminal action. Nevertheless, it is one over which the Criminal Court has jurisdiction (see AML 373[6][a] (the petition may also be brought by the District Attorney's office); see eg People v. Stoltz, 10 Misc.3d 139(A), 814 N.Y.S.2d 564 (App. Term, 9th and 10 Jud. Dist. [2006]); People v. Sitors, 12 Misc.3d 928, 815 N.Y.S.2d 393 (County Ct., Schoharie County, 2006) ). Additionally, ASPCA's legal authority to petition for the posting of security (see AML 373), and also for the disposition of the seized animal (see AML 374), is contingent upon the defendant's arraignment for criminal charges under Article 26 (see AML 373[6] [a] ). Further, the statute confers the authority onto police officers and ASCPA, who are deemed peace officers under CPL 2.10(7), and thus subject to mandates of the Fourth Amendment (see CPL 2.20 (authorizing peace officers to carry out warrantless searches whenever such searches are constitutionally permissible and acting pursuant to their special duties) ). Given the statutory scheme, so interwoven with criminal law procedure and principles, it is axiomatic that the warrant requirement under AML 373(2) is based on Fourth Amendment considerations, and individuals' privacy rights thereunder.

*5 Additionally, AML 371 authorizes officers to intervene “to prevent any act of cruelty upon any animal in his presence.” Cruelty is defined as “every act, omission, or neglect, whereby unjustifiable physical pain, suffering or death is caused or permitted” (AML 350). Therefore, while not explicit, the implication is, being consistent with Fourth Amendment principles, that officers may lawfully seize animals in an individual's home under the “emergency doctrine.”

Given this legal framework, this court holds that a seizure under AML 373(2) is subject to a Fourth Amendment analysis.

The Dog Was Lawfully Seized Under the Emergency Doctrine
It is a basic principle of Fourth Amendment law that warrantless entries and searches of the home are presumptively unreasonable (see Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 [1980]; People v. McBride, 14 N.Y.3d 440, 445, 902 N.Y.S.2d 830, 928 N.E.2d 1027 [2010] ). However, it is also well-settled that there are exceptions to this principle, one of which is referred to as the “emergency doctrine” (see People v. Doll, 21 N.Y.3d 665, 670, 975 N.Y.S.2d 721, 998 N.E.2d 384 [2013] ). The emergency doctrine recognizes that the Constitution “is not a barrier to a police officer seeking to help someone in immediate danger” (People v. Molnar, 98 N.Y.2d 328, 331, 746 N.Y.S.2d 673, 774 N.E.2d 738 [2002] ), “thereby excusing or justifying otherwise impermissible police conduct that is an objectively reasonable response to an apparently exigent situation” (People v. Doll, 21 N.Y.3d at 670, 975 N.Y.S.2d 721, 998 N.E.2d 384).

To be sure, the emergency exception to the warrant requirement applies to the protection of the animals (see People v. Rogers, 184 Misc.2d 419, 420, 708 N.Y.S.2d 795 [2d Dept. 2000] (extending emergency doctrine to protect animals in danger); People v. Roundtree, 54 Misc.3d 442, 449, 44 N.Y.S.3d 849 (Justice Ct., Town of Greece 2016] (“[t]he adoption of the arrest and search powers of humane society officers demonstrates the legislature's intent to recognize animals as living beings, if not valuable property, to be protected”) ).

In People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607 (1976), the Court of Appeal ruled that the emergency doctrine is comprised of three basic elements: (1) “the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) “that the protection of human life or property in imminent danger must be the motivation for the search”; and (3) “there must be some reasonable basis, approximating probable cause, to associate the emergency with the area to be searched” (id. at 177–178, 383 N.Y.S.2d 246, 347 N.E.2d 607). “The applicability of the emergency doctrine is a mixed question of law and facts” that must be reviewed by the court in rendering its decision (People v. Doll, 21 N.Y.3d at 671, 975 N.Y.S.2d 721, 998 N.E.2d 384). Here, the respondent does not challenge the lawfulness of the police entry into the home. Rather, he argues that once the officers entered the apartment, the circumstances did not obviate the need for a warrant to seize the dog. The court disagrees.

Upon immediate sight of the dog, he was noted to be abnormally thin, as his rib cage was pronounced and visible from under the fur. Further, the dog was panting with his tongue sticking out which indicated to the officer that he was dehydrated. While searching the apartment for a possible dead body, the officer discovered empty food and water bowls. Based on the foregoing observations, Officer Diaz concluded that the dog was thirsty and hungry. Moreover, given the accumulation of animal waste that saturated the floor; the noxious odor the waste produced; and the lengthy absence of the occupant, this situation appeared to have existed for some period and certainly over 12 hours. Therefore, in light of the condition in which the animals were living and the dog's visibly unhealthy physical appearance, the officer's immediate action of removing him from the apartment was reasonable and lawful under the emergency doctrine.

Petitioner Met Its Burden Under AML 373(6)
*6 ASPCA argues that it has met its burden of proving, by a preponderance of the evidence, that the respondent violated AML 353 and AML 356. The respondent disputes the willfulness of his conduct, which caused the dog's emaciated condition.

A person is guilty of AML 353 when he “deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be deprived of necessary food or drink, or who willfully in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty”

A person is guilty of AML 356 when “having impounded or confined any animal, refuses or neglects to supply to such animal during its confinement a sufficient supply of good and wholesome air, food, shelter and water”

Given the credible evidence presented by the petitioner, particularly Dr. Liu's testimony that the dog was emaciated and it took nine weeks of a balanced diet for him to achieve a healthy weight, the court finds that the petitioner met its burden of proving by a preponderance of the evidence that the defendant committed the offenses under AML 353 and 356.

The court further finds ASCPA's recommendation that the respondent post security in the amount of $2,567.21 to be a reasonable amount. As such, the court orders the respondent to post security in the amount of $2,567.21 within five (5) days to secure payment for all reasonable expenses incurred in providing care for the dog. It is further ordered that failure to post security in this amount with five (5) days shall result in the immediate forfeiture of him to the ASPCA for disposition pursuant to the provisions of the Agriculture and Markets Law.

This constitutes the decision and order of the court.

All Citations
--- N.Y.S.3d ----, 2018 WL 1279067, 2018 N.Y. Slip Op. 28075

Footnotes
1 The ASPCA did not seek reimbursement for the cat's medical and boarding expenses.

2 Admitted into evidence as Respondent's Exhibit 2.

3 The court takes judicial notice that ESU is an acronym for Emergency Service Unit.

4 Dr. Liu was qualified as an expert witness in forensic veterinarian sciences without objection.

5 Petitioner's Exhibit 2 in evidence.

6 Petitioner's Exhibit 3 in evidence.

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