II. PROHIBITED ACTS

A. AGRICULTURE AND MARKETS LAW
1. Fighting
2. Misdemeanor Cruelty
3. Felony Cruelty (New)
4. Abandonment
5. Other Offenses
B. PENAL LAW
1. Attempt to Commit a Crime
2. Other Offenses
C. NYC HEALTH CODE
1. Leash Law
2. License Law
3. Rabies Law
4. Other provisions

III. SEARCHES, SEIZURES AND HOLDING ANIMALS PENDING DISPOSITION OF CASES
A. NYC ADMINISTRATIVE CODE
B. AGRICULTURE AND MARKETS LAW
C. BOND REQUIREMENT (NEW)

IV. SENTENCING, INCLUDING FORFEITURE OF ANIMALS AND PROHIBITION OF CONTACT WITH ANIMALS
A. FORFEITURE OF ANIMALS AND PROHIBITION OF CONTACT WITH ANIMALS
B. OTHER ASPECTS OF SENTENCING
1. Mandatory surcharges and fees
2. Youthful and juvenile offenders
3. Repeat offenders
C. ASPCA COUNSELING PROGRAM

V. RESOURCES

Until quite recently, an animal abuser was likely to face the following consequences, if he or she faced any at all:

• The receipt of a summons, rather than a formal arrest.


• An appearance, unopposed by a prosecutor, in the summons part of a local court.
  
• A small (e.g., $50-100) fine on a guilty plea to a violation, rather than a crime.

In recent years, law enforcement agencies have begun to take animal abuse cases more seriously. In 1995, a special task force dedicated to the effective prosecution of animal fighting and cruelty cases was formed among the five New York City District Attorneys, the New York City Police Department, the American Society for the Prevention of Cruelty to Animals and the Center for Animal Care and Control.

However, the law regarding animal abuse remains unfamiliar terrain to most law enforcement personnel, judges and lawyers. Most of the relevant provisions are contained not in the Penal Law, but in other statutes that few judges and lawyers have on their desks. Hence this guide.

This guide was prepared by the Committee on Legal Issues Pertaining to Animals, whose members include lawyers with extensive experience in animal fighting and cruelty cases. It is designed to provide ready access to the law governing the issues that are likely to arise in such cases. For more unusual questions, the reader is referred to the applicable statutes cited in this guide, the (rather meager) case law on the subject, Committee members and the other organizations listed in Section V. The guide is intended solely to provide general information of a summary nature and should not be relied upon as legal advice as to specific matters.

II. Prohibited Acts

The Agriculture and Markets Law contains the most important animal protection statutes, including the prohibitions of cruelty and fighting. The Penal Law is also significant, primarily because many of its general provisions apply in animal cases. For example, the prohibition of Attempt to Commit a Crime (Article 110) includes an attempt to commit an animal-related crime defined in the Agriculture and Markets Law. Also, in New York City, a charge of an attempt to commit a misdemeanor (e.g., an attempt to commit misdemeanor animal cruelty) is tried in a single judge trial rather than a jury trial, thus reducing the burden of these cases on the criminal justice system.

The New York City Health Code contains misdemeanor provisions which do not involve cruelty per se, but which are commonly violated by dog fighters and are sometimes charged along with fighting and cruelty offenses.

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A. AGRICULTURE AND MARKETS LAW

1. Fighting

Section 351 of the Agriculture & Markets Law imposes three levels of culpability for animal fighting offenses. A person directly involved in an animal fight or in training an animal for a fight, or who possesses a fighting animal at a fight, is guilty of an unclassified felony punishable by up to four years in jail and a $25,000 fine. The possession of a fighting animal, without regard to the time or place of possession, is an unclassified misdemeanor punishable by up to one year in jail and a $15,000 fine. A spectator who pays to see or who bets on a fight is guilty of an unclassified misdemeanor punishable by up to one year in jail and a $1,000 fine.

§ 351-Prohibition of animal fighting

1. For purposes of this section, the term "animal fighting" shall mean any fight between cocks or other birds, or between dogs, bulls, bears or any other animals, or between any such animal and a person or persons, except in exhibitions of a kind commonly featured at rodeos.

2. Any person who engages in any of the following conduct is guilty of a felony and is punishable by imprisonment for a period not to exceed four years, or by a fine not to exceed twenty-five thousand dollars, or by both such fine and imprisonment:

(a) For amusement or gain, causes any animal to engage in animal fighting; or
(b) Trains any animal under circumstances evincing an intent the such animal engage in animal fighting for amusement or gain; or
(c) Permits any act described in paragraph (a) or (b) of this subsection to occur on premises under his control; or
(d) Owns, possesses or keeps any animal trained to engage in animal fighting on premises where an exhibition of animal fighting is being conducted under circumstances evincing an intent that such animal engage in animal fighting.

3. (a) Any person who engages in conduct specified in paragraph (b) of this subdivision is guilty of a misdemeanor and is punishable by imprisonment for a period not to exceed one year, or by a fine not to exceed fifteen thousand dollars, or by both such fine and imprisonment.
(b) The owning, possessing or keeping of any animal under circumstances evincing an intent that such animal engage in animal fighting.

4. (a) Any person who engages in conduct specified in paragraph (b) of this subdivision is guilty of a misdemeanor and is punishable by imprisonment for a period not to exceed one year, or by a fine not to exceed one thousand dollars, or by both such fine and imprisonment.
(b) The knowing presence as a spectator having paid an admission fee or having made a wager at any place where an exhibition of animal fighting is being conducted.

The statute and its legislative history make clear that the purview of the fighting statute is not limited to organized, for-profit fighting rings. Fighting for simple amusement is subject to the statute. Animal fighting is sometimes conducted for profit and frequently involves enormous sums; the higher-than-usual fines imposed under the statute are intended to take the profit out of this activity.

In practice, most prosecutors charge felony animal fighting where the defendant is a recidivist or is part of a fighting ring. A first offender engaged in an opportunistic "street fight" is usually charged with misdemeanor possession of a fighting animal and two counts of cruelty (one for each animal involved in the fight).
Section 351 has withstood challenges on several grounds.^[1]

2. Misdemeanor Cruelty

Section 353 of the Agriculture & Markets Law is New York's misdemeanor cruelty statute. § 353-Overdriving, torturing and injuring animals; failure to provide proper sustenance.

A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills and animal, whether wild or tame, and whether belonging to himself or to another, or 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 overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, or who willfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a misdemeanor, punishable by imprisonment for not more than one year, or by a fine of not more than one thousand dollars, or by both.

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* * * ^[2]

Useful definitions include:

§ 350-Definitions

1. "Animal," as used in this article, includes every living creature except a human being.

2. "Torture" or "cruelty" includes every act, omission, or neglect, whereby unjustifiable physical pain, suffering or death is caused or permitted.

* * *

Several observations are in order. First, as with any offense, justification is a defense.^[3] Justification is defined generally in Penal Law § 35.05 to include acts which are authorized by law or judicial decree, or which are performed by a public servant in the reasonable exercise of his duties, or which are necessary as an emergency measure to avoid an imminent harm not occasioned by the actor.^[4]

A religious purpose is not a justification for cruelty, so a religiously neutral cruelty statute such as § 353 may be enforced to prohibit ritual animal sacrifice.^[5] Similarly, freedom of speech is not a justification for cruelty, so § 353 may be enforced to prohibit cruelty even where such cruelty was committed with an expressive purpose.^[6] Moreover, the New York cruelty statute does not exempt animal husbandry practices. Thus, although the slaughter of animals in accordance with humane slaughter lawsa ^[7] would not violate the cruelty statute, abuse or neglect of farm animals that is not otherwise sanctioned by law is prohibited.^[8] And acts that are ordinarily lawful, such as whipping a racehorse, may become unlawful when they are done to excess.^[9]

Second, in addition to affirmative acts of cruelty, the statute covers acts of omission: neglecting to furnish an animal with necessary sustenance, food or drink, or permitting an animal to be deprived of necessary food or drink or to be overdriven or unjustifiably injured. Although the statute does not contain a mens rea term, it has been held to require that the acts or omissions were done willfully and with knowledge of a harmful impact on an animal.^[10]

Also, since "sustenance" is distinguished from "food or drink" in the statute, the term clearly means something more. The statute has been held to require provision of veterinary care and shelter adequate to maintain health and comfort.^[11]

Third, actual injury need not be proven, since the statute requires that the offending act or omission merely tend to produce cruelty. This is probably intended to reflect the reality that animals cannot testify about their pain or injuries and that emergency medical care by a doctor who could so testify is not systematically provided to animals. Fourth, as the statute makes clear, the defendant need not be the owner of an animal to be culpable for cruelty to that animal.^[12]

Finally, cruelty may be charged as a continuing offense, with a series of acts over a period of time being sufficient to support a cruelty charge.^[13]

3. Felony Cruelty (New)

Effective November 1, 1999, New York State has followed the trend set by 17 other states by adding a felony to its anti-cruelty law. New §353-a provides as follows:

§ 353-a-Aggravated cruelty to animals.

1. A person is guilty of aggravated cruelty to animals when, with no justifiable purpose, he or she intentionally kills or intentionally causes serious physical injury to a companion animal with aggravated cruelty. For purposes of this section, "aggravated cruelty" shall mean conduct which: (i) is intended to cause extreme physical pain; or (ii) is done or carried out in an especially depraved or sadistic manner.

2. Nothing contained in this section shall be construed to prohibit or interfere in any way with anyone lawfully engaged in hunting, trapping, or fishing, as provided in article eleven of the environmental conservation law, the dispatch of rabid or diseased animals, as provided in article twenty-one of the public health law, or the dispatch of animals posing a threat to human safety or other animals, where such action is otherwise legally authorized, or any properly conducted scientific tests, experiments, or investigations involving the use of living animals, performed or conducted in laboratories or institutions approved for such purposes by the commissioner of health pursuant to section three hundred fifty-three of this article.

3. Aggravated cruelty to animals is a felony. A defendant convicted of this offense shall be sentenced pursuant to paragraph (b) of subdivision one of section 55.10 of the penal law provided, however, that any term of imprisonment imposed for violation of this section shall be a definite sentence, which may not exceed two years.

It is important to note that an animal need not be killed for the statute to apply, but rather that it at least sustain "serious physical injury." That term is not defined in the cruelty law, but has a well-established pedigree under the Penal Law. Section 10.00(10) of the Penal Law defines "serious physical injury" as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ."

The mens rea terms involving "extreme physical pain" and "especially depraved or sadistic manner" are not defined and so are apparently matters to be determined by the finder of fact.

The felony statute applies to acts toward "companion animals." That term is defined in the § 350(5) as follows:

"Companion animal" or "pet" means any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal. "Pet" or "companion animal" shall not include a "farm animal" as defined in this section.

As the legislative history makes clear, however, "[t]he definition of 'Companion animal' has been amended to specifically include any dog or cat so that stray dogs and cats are covered as well as dogs, cats and other domesticated animals which have owners." ^[14]

The statute provides for sentencing as a class E felony under the Penal Law, which allows for a $5,000 fine, and sets the maximum prison term at a definite sentence of up to two years. Both a fine and a prison term may be imposed.

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The Legislature made several notable findings in its memorandum describing the new statute:

Deliberate animal abuse is a widespread concern which must be addressed. Currently, a person who violates §353 is guilty of a misdemeanor, punishable by imprisonment of up to one year and of a fine of not more than $1000 or both. The most egregious animal abuse cases, where a person deliberately tortures an animal, should result in the perpetrator being subject to stricter penalties than in existing statute. Innocent animals have been subject to horrendous actions including hanging, being set on fire and being used as target practice for knife throwing. As if this were not enough, there is another important reason to convict animal abusers. The connection between animal abusers and violence towards humans shows that virtually every serial killer had a history of abusing animals before turning their attention to people. Currently, seventeen states have enacted felony cruelty laws to address certain types of animal cruelty. Given the growing public recognition of the rights of animals to be treated in a humane fashion, this bill seeks to ensure that these cases are not handled as petty matters by increasing the most flagrant acts to a felony.^[15]

4. Abandonment

Section 355 of the Agriculture and Markets Law prohibits abandoning an animal or certain other acts involving leaving dying or disabled animals in public places.

§ 355-Abandonment of animals.

A person being the owner or possessor, or having charge or custody of an animal, who abandons such animal, or leaves it to die in a street, road or public place, or who allows such animal, if it become disabled, to lie in a public street, road or public place more than three hours after he receives notice that it is left disabled, is guilty of a misdemeanor, punishable by imprisonment for not more than one year, or by a fine of not more than one thousand dollars, or by both.

The only definition of the term "abandon" in the Agriculture and Markets Law is found in Article 25-B, § 331, which, in connection with § 332, addresses the rights of veterinarians or other persons with whom an animal is left without being reclaimed. It is doubtful that this narrow definition of "abandon" was intended to apply in § 355. Black's Law Dictionary defines "abandon" to include, inter alia, "[v]oluntary relinquishment of all right, title, claim and possession, with the intention of not reclaiming it."^[16] The term has also been defined as, "[t]o withdraw one's support or help from, esp. despite a duty, allegiance or responsibility."^[17]

5. Other Offenses

The Agriculture and Markets Law contains a number of other provisions prohibiting acts that may be injurious to animals. They are rarely encountered in practice and some are duplicative of the cruelty statute. These provisions serve to address specific practices and to eliminate any question about the illegality of those practices under the cruelty statute. They include:

§ 354-Sale of baby chicks and baby rabbits

§ 356-Failure to provide proper food and drink to impounded animal

§ 357-Selling or offering to sell or exposing diseased animal

§ 358-Selling disabled horses

§ 358-a-Live animals as prizes prohibited

§ 359-Carrying an animal in a cruel manner

§ 359-a-Transportation of horses

§ 360-Poisoning or attempting to poison animals

§ 361-Interference with or injury to certain domestic animals

§ 362-Throwing substance injurious to animal in public place

§ 363-Unauthorized possession of dogs presumptive evidence of larceny

§ 364-Running horses on highway

§ 365-Clipping or cutting the ears of dogs

§ 366-Dog stealing

§ 366-a-Removing, seizing or transporting dogs for research purposes

§ 367-Leaving state to avoid provisions of this article

§ 368-Operating upon tails of horses unlawful

§ 369-Interference with officers § 370-Protection of the public from attack by wild animals and reptiles

Because of the rarity of these charges in practice, these statutes are not reproduced or discussed in detail in this guide.

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B. PENAL LAW

1. Attempt to Commit a Crime

Penal Law Article 110, which forbids an attempt to commit a crime, can be important in animal abuse cases, especially in New York City. Under that provision, an attempt to commit a misdemeanor (e.g., an attempt to commit misdemeanor animal cruelty or an attempt to possess a fighting animal) is a class B misdemeanor.^[18] In New York City Criminal Court, a case involving a class B misdemeanor must be tried in a single judge trial.^[19] Thus, since prosecutors have discretion to charge an attempted crime even where a completed crime was committed,^[20] New York City prosecutors handling animal cases may, in appropriate circumstances, reduce an animal-related charge to attempt, thereby trading a reduction in the maximum potential punishment for a bench trial that places less burden on the criminal justice system.^[21]

2. Other Offenses

Article 195 of the Penal Law proscribes killing or injuring a police animal^[22] or a service animal,a NAME="Ref23">^[23] such as a seeing eye dog. However, such acts are already prohibited under the more general cruelty statutes in the Agriculture and Markets Law, and the Penal Law statutes impose no greater sanction.

Penal Law § 130.20 bars sexual conduct with an animal. Such conduct is punishable by the same sanctions imposed for cruelty, i.e., up to one year in jail and/or a $1,000 fine.

C. NYC HEALTH CODE

The New York City Health Code does not address animal abuse per se, but certain of its provisions may become more frequently encountered in animal cases in New York City Criminal Court. Experience has shown that dog fighters commonly violate these provisions, and they are often charged along with fighting, cruelty and other offenses.^[24]

The Health Code includes leash requirements, license requirements and rabies vaccine requirements. In general, Health Code violations are misdemeanors^[25] and are punishable by a fine of from $100 to $2000.^[26] However, a breach of the leash law is a violation punishable by a fine of $25 and/or 10 days in jail.^[27]

1. Leash Law

New York City Health Code § 161.05 provides,

Dogs to be restrained.

A person who owns, possesses or controls a dog shall not permit it to be in any public place or in any open or unfenced area abutting on a public place unless the dog is effectively restrained by a leash or chain not more than six feet long.

As noted above, a failure to properly leash a dog properly is a violation punishable by a fine of $25 and/or 10 days in jail.

2. License Law

New York City Health Code § 161.04 provides, in pertinent part,

Dog Licenses.

* * *

(b) Every person who owns, possesses or controls a dog shall not permit it to be in any public place, or in any open or unfenced area abutting on a public place, unless the dog has a collar about its neck with a currently valid metal tag attached thereto bearing the number of the license obtained for such dog in accordance with Chapter 115 of the Laws of 1894 of the State of New York, as amended or §§ 109 and 112 of the Agriculture and Markets Law.

As noted above, a violation of the license law is a misdemeanor punishable by a fine of from $100 to $2,000.

3. Rabies Law

New York City Health Code § 11.66 provides, in pertinent part,

Rabies: compulsory vaccination.

(a) Any person who owns or harbors in New York City, a dog or cat three months of age or older, other than a dog or cat meeting the requirements of subparagraph (d), shall have such animal actively immunized against rabies. Actively immunized shall mean injections of a rabies vaccine which meets the standards prescribed by the United States Department of Agriculture for interstate sale and administered according to the manufacturer's instructions under the direction of a duly licensed veterinarian.

* * *

(d) Active immunization against rabies shall not be required for dogs or cats owned by a non-resident, while passing through New York City for a period not exceeding fifteen days, if entered in any exhibition at any dog or cat show therein, and if confined and in immediate charge of the exhibitor, or for dogs or cats actually confined to the premises of incorporated societies, devoted to the care or hospital treatment of lost, strayed or homeless animals, or confined to the premises of public or private hospitals devoted to the treatment of sick animals, or confined for the purposes of research to the premises of colleges or other educational or research institutions, or for dogs or cats actually confined to the premises of a person, firm or corporation actually engaged in the business of breeding or raising dogs or cats for profit and are so licensed as a class A dealer under the Federal Laboratory Animal Welfare Act or if such vaccination would adversely affect the health of the dog or cat as determined by a duly licensed veterinarian.

As noted above, a violation of the rabies law is a misdemeanor punishable by a fine of from $100 to $2,000.

4. Other provisions

The New York City Health Code contains prohibitions of certain other acts affecting animal welfare. They include:

§ 161.01-Wild animals prohibited

§ 161.03-Control of dogs and other animals to prevent nuisance

§ 161.06-Dogs and cats to be dewormed

§ 161.09-Permits to keep certain animals

§ 161.15-No animal kept in an establishment or in a place where food or drink is sold

§ 161.17-Small animals kept for sale

§ 161.19-Keeping of live poultry and rabbits

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Because of the rarity of these charges in practice, these statutes are not reproduced or discussed in detail in this guide.

III. Searches, Seizures and Holding Animals Pending Disposition of Cases

A. NYC ADMINISTRATIVE CODE

The New York City Administrative Code provides generally for the seizure and retention of evidence of a crime.^[28] Such evidence is generally to be held by the Property Clerk of the New York City Police Department.^[29] During the pendency of the case, no action may be brought seeking return of the evidence.^[30]

Under an agreement between the Property Clerk of the New York City Police Department and the Center for Animal Care & Control, Inc. (CACC), the CACC acts as the repository for animals that would otherwise be held by the Property Clerk.^[31] The New York City Administrative Code specifically authorizes such arrangements.^[32]

B. AGRICULTURE AND MARKETS LAW

The Agriculture and Markets Law provides that a police officer must, and an agent of a duly incorporated society for the prevention of cruelty to animals may, arrest or issue a desk appearance ticket or summons to any person who violates fighting, cruelty or related laws.^[33] The officer or agent may interfere to prevent such cruelty^[34] and may take charge of any animal in the possession of a person who is arrested.^[35]

The statute also provides for the issuance of arrest warrants^[36] and search warrants^[37] in animal fighting or cruelty cases. As with certain other animal protection statutes (see Section II.A.45., supra), the statute is redundant of other, more general provisions.^[38]

The statute also includes a provision specifically authorizing the seizure of fighting animals and fighting implements.^[39] Where animals or property are seized pursuant to that provision, the seizing officer must file an affidavit concerning the seizure. Upon receiving such an affidavit, a magistrate must issue an order to hold the animals and implements pending the outcome of the case.^[40] Once again, however, the statute appears to be redundant of other, more general laws pertaining to the seizure of evidence in criminal cases, for which no affidavit is required. In any event, the effect of the provision is to mandate a judicial order to hold the animal and property; there is no sanction for a failure to file the affidavit.

C. BOND REQUIREMENT

Because animal cases can be protracted, and because animal shelters can ill afford the costs of caring for seized animals over extended periods, the legislature added a bond requirement to provide for those costs.

Once the defendant has been arraigned, the impounding shelter may petition the court for an order directing the defendant to post a security to provide for the costs of caring for the impounded animal for at least thirty days. (The shelter may subsequently petition for additional security.) A hearing must be held within ten days of the petition at which the shelter must prove a violation of the animal welfare statutes by a preponderance of the evidence.

The court may waive the posting of security for good cause. If the court issues the order for security, it must be posted within five days. If the defendant fails to post the security, the court may order the immediate forfeiture of the animal to the shelter, which may then adopt or euthanize the animal pursuant to law.

Upon acquittal or dismissal of the charges (except in the case of an adjournment in contemplation of dismissal), the defendant is entitled to a full refund of the security.

§ 373-Seizure of animal lost, strayed, homeless, abandoned or improperly confined or kept

* * *

6.a. If any animal is seized and impounded pursuant to the provisions of this section for any violation of this article, upon arraignment of charges the duly incorporated society for the prevention of cruelty to animals, humane society, pound, animal shelter or any authorized agents thereof, hereinafter referred to for the purposes of this section as the "impounding organization", may file a petition with the court requesting that the person from whom an animal is seized or the owner of the animal be ordered to post a security. The security shall be in an amount sufficient to secure payment for all reasonable expenses expected to be incurred by the impounding organization in caring and providing for the animal pending disposition of the charges. Reasonable expenses shall include, but not be limited to, estimated medical care and boarding of the animal for at least thirty days. The amount of the security, if any, shall be determined by the court after taking into consideration all of the facts and circumstances of the case including, but not limited to[,] the recommendation of the impounding organization having custody and care of the seized animal and the cost of caring for the animal. If a security has been posted in accordance with this section, the impounding organization may draw from the security the actual reasonable costs to be incurred by such organization in caring for the seized animal.

b.(1) Upon receipt of a petition pursuant to paragraph a of this subdivision the court shall set a hearing on the petition to be conducted within ten business days of the filing of such petition. The petitioner shall serve a true copy of the petition upon the defendant and the district attorney. The petitioner shall also serve a true copy of the petition on any interested person. For purposes of this subdivision, interested person shall mean an individual, partnership, firm, joint stock company, corporation, association, trust, estate or other legal entity who the court determines may have a pecuniary interest in the animal which is the subject of the petition. The petitioner shall have the burden of proving by a preponderance of the evidence that the person from whom the animal was seized violated a provision of this article. The court may waive for good cause shown the posting of security.

(2) If the court orders the posting of a security, the security shall be posted with the clerk of the court within five business days of the hearing provided for in subparagraph one of this paragraph. The court may order the immediate forfeiture of the seized animal to the impounding organization if the person ordered to post the security fails to do so. Any animal forfeited shall be made available for adoption or euthanized subject to subdivision seven-a of section one hundred eighteen of this chapter or section three hundred seventy-four of this article.

(3) In the case of an animal other than a companion animal or pet, if a person ordered to post security fails to do so, the court may, in addition to the forfeiture to a duly incorporated society for the prevention of cruelty to animal, humane society, pound, animal shelter or any authorized agents thereof, and subject to the restrictions of sections three hundred fifty-four, three hundred fifty-seven and three hundred seventy-four of this article, order the animal which was the basis of the order to be sold, provided that all interested persons shall first be provided the opportunity to redeem their interest in the animal and to purchase the interest of the person ordered to post security, subject to such conditions as the court deems appropriate to assure proper care and treatment of the animal. The court may reimburse the person ordered to post security and any interested persons any money earned by the sale of the animal less any costs including, but not limited to, veterinary and custodial care. Any animal determined by the court to be maimed, distressed, disabled or infirm so as to be unfit for sale or any useful purpose shall be forfeited to a duly incorporated society for the prevention of cruelty to animals or a duly incorporated humane society or authorized agents thereof, and be available for adoption or shall be euthanized subject to section three hundred seventy-four of this article.

(4) Nothing in this section shall be construed to limit or restrict in any way the rights of a secured party having a security interest in any animal described in this section. This section expressly does not impair or subordinate the rights of such a secured lender having a security interest in the animal or in the proceeds from the sale of such animal.

c. In no event shall the security prevent the impounding organization having custody and care of the animal from disposing of the animal pursuant to section three hundred seventy-four of this article prior to the expiration of the thirty day period covered by the security if the court makes a determination of the charges against the person from whom the animal was seized prior thereto. Upon receipt of a petition from the impounding organization, the court may order the person from whom the animal was seized or the owner of the animal to post an additional security with the clerk of the court to secure payment of reasonable expenses for an additional period of time pending a determination by the court of the charges against the person from whom the animal was seized. The person who posted the security shall be entitled to a refund of the security in whole or part for any expenses not incurred by such impounding organization upon adjudication of the charges. The person who posted the security shall be entitled to a full refund of the security, including reimbursement by the impounding organization of any amount allowed by the court to be expended, and the return of the animal seized and impounded upon acquittal or dismissal of the charges, except where the dismissal is based upon an adjournment in contemplation of dismissal pursuant to section 215.30 of the criminal procedure law. The court order directing such refund and reimbursement shall provide for payment to be made within a reasonable time from the acquittal or dismissal of the charges.^[41]

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IV. Sentencing, Including Forfeiture of Animals and Prohibition of Contact with Animals

A. FORFEITURE OF ANIMALS AND PROHIBITION OF CONTACT WITH ANIMALS

As noted in the introduction, a cruelty or fighting prosecution can be an empty gesture if the defendant is permitted to possess animals subsequently. Thus, the statute allows a court to issue an order of forfeiture relating to the animals that were the basis of a fighting, cruelty or related conviction.

Moreover, the court may order the defendant and any cohabitants that knew or should have known of the abuse not to "own, harbor, or have custody or control over any other animals, other than farm animals, for a period of time that the court deems reasonable."^[42] In practice, such orders are set to last at least as long as the terms of orders of protection issued in non-animal cases (generally five years in a felony case and three years in a misdemeanor case^[43] ), but the statute would permit longer terms in appropriate cases.

§374-Humane destruction or other disposition of animals lost, strayed, homeless, abandoned or improperly confined or kept.

* * *

5. a. In addition to any other penalty provided by law, upon conviction for any violation of section [351, 353, 353-a, 355, 356, 359, 360, 361, 365 or 368] of this article, the convicted person may, after a duly held hearing pursuant to paragraph f of this subdivision, be ordered by the court to forfeit, to a duly incorporated society for the prevention of cruelty to animals or a duly incorporated humane society or authorized agents thereof, the animal or animals which are the basis of the conviction. Upon such an order of forfeiture, the convicted person shall be deemed to have relinquished all rights to the animals which are the basis of the conviction, except those granted in paragraph d of this subdivision.

* * *

c. The court may additionally order that the convicted person or any person dwelling in the same household who conspired, aided or abetted in the unlawful act which was the basis of the conviction, or who knew or should have known of the unlawful act, shall not own, harbor, or have custody or control of any other animals, other than farm animals, for a period of time which the court deems reasonable.

d. In the case of farm animals, the court may [order that the animals be sold and that the proceeds of such sale, less expenses for care and any fines, be paid to the convicted person].

e. [Forfeited animals may be adopted.]

f. (1) Prior to an order of forfeiture of farm animals, a hearing shall be held within thirty days of conviction, to determine the pecuniary interests of any other person in the farm animals which were the basis of the conviction. . . . ^[44]

Although the statute provides a clear basis for orders of forfeiture of animals and prohibition of contact with animals in the case of a fighting or cruelty conviction, such terms may also be made part of a sentence of conditional discharge or probation on conviction of other charges, so long as the terms reasonably relate to the defendant's rehabilitation^[45] or, in the case of a sentence of probation, are "necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant."^[46] It seems reasonably clear that, to the extent that the defendant's crimes were the product of his or her animosity toward animals, a prohibition of contact with animals, together with forfeiture of the animals that the defendant has already abused, would not be punitive, but rather would relate primarily to rehabilitation and the avoidance of the condition associated with the criminal behavior.^[47]

B. OTHER ASPECTS OF SENTENCING

1. Mandatory surcharges and fees

Mandatory surcharges and crime victim assistance fees are applicable to convictions for offenses, including animal-related offenses.^[48]

2. Youthful and juvenile offenders

Youthful offender treatment is available for convictions for crimes, including animal-related crimes, by defendants who are otherwise eligible for such treatment.^[49]

No animal-related crime is designated in the juvenile offender statute, so juvenile offenders of animal protection statutes would remain in Family Court.^[50]

3. Repeat offenders

The Agriculture and Markets Law does not provide enhanced penalties for recidivists. However, the Penal Law does provide enhanced penalties for repeat felons and, in some cases, can impact animal fighting or cruelty felons.

The only animal-related felonies are animal fighting and aggravated cruelty.^[51] An animal fighting/cruelty felony conviction may serve as a predicate felony conviction so that a subsequent felony conviction for a crime defined in the Penal Law would be subject to second felony offender sentencing. However, because animal fighting/cruelty is defined outside of the Penal Law, animal fighting/cruelty cannot be the conviction for which second felony offender sentencing is imposed.^[52]

An animal fighting/cruelty conviction may serve also as a predicate felony conviction for persistent felony offender sentencing. Moreover, because the persistent felon statute contains no limitation to felonies defined in the Penal Law, a person who has two qualifying prior felony convictions may be sentenced as a persistent felon for a subsequent animal fighting/cruelty conviction.^[53]

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C. ASPCA COUNSELING PROGRAM

The American Society of Prevention of Cruelty to Animals (ASPCA) has undertaken an intervention and counseling program for courts to utilize in cruelty and fighting cases. Under this new program, modeled on domestic violence programs, a defendant would be required to attend 12 weekly meetings with a counselor at the ASPCA. The meetings would include discussions about the humane treatment of animals and related issues. The defendant would be encouraged to take responsibility for his or her actions and to commit to a permanent alteration in those behaviors that harm animals.

As part of this rehabilitative process, the defendant would not be permitted to have contact with animals at the ASPCA. Indeed, most animal shelters would not accept an animal abuser as a volunteer, even as part of an abuser's sentence of community service.

More information on this program can be obtained from the ASPCA at the address and telephone number listed in Section V.

V. Resources

ORGANIZATIONS

The American Society for the Prevention of Cruelty to Animals is the leading law enforcement agency on matters of animal law in New York and is an active member of a task force comprised of the five New York City District Attorneys, the New York City Police Department and the Center for Animal Care & Control. The ASPCA also publishes a legislative service entitled Laws Protecting Animals in New York State and New York City. The ASPCA may be contacted through:

Tatyana D. Olyphant, General Counsel
Dale Riedel,
Director of Humane Law Enforcement
American Society
for the Prevention of Cruelty to Animals
424 East 92d Street
New York, NY 10012
(212) 876-7700
www.aspca.org

The Animal Legal Defense Fund is a nationwide network of attorneys specializing in animal law. It sponsors a national program on cruelty prosecution. The ALDF may be contacted through:

Pamela D. Frasch
Dana Campbell
Animal Legal Defense Fund
2103 SE Belmont Street
Portland, OR 97214
(503) 231-6517
(800) 555-6517
www.aldf.org

LEGAL TEXT

Sonja A. Soehnel, Annotation, What Constitutes Offense of Cruelty to Animals - Modern Cases, 6 A.L.R. 5th 733 (1997).

^[1]People v. Mink, 237 A.D.2d 664 (3d Dep't 1997) (§ 351 is not preempted by 7 U.S.C. § 2156 and is not unconstitutionally vague).Return to Text
^[2]Excepted from the cruelty prohibition are "properly conducted" experiments conducted by institutions approved for such purposes by the state commissioner of health. This exception is not reproduced here.Return to Text
^[3]Unjustifiably," as used in the cruelty statute, relates to acts of injuring, maiming, mutilating, killing and to cruelty and torture. People v. Bunt, 118 Misc.2d 904 (N.Y. Justice Ct. Dutchess Co. 1983).Return to Text
^[4]See People v. Voelker, 172 Misc.2d 564 (N.Y. Crim. Ct. 1997) (justification "must be of the type necessary to preserve the safety of property or to overcome danger or injury").Return to Text
^[5]Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993) (a statute enacted with the legislative purpose of banishing or repressing a particular religious group is unconstitutional, whereas a neutral statute may incidentally restrict religious practice).Return to Text
^[6]People v. Voelker, 172 Misc.2d 564 (N.Y. Crim. Ct. 1997).Return to Text
^[7]See, e.g., 7 U.S.C. § 1902; Agriculture & Markets Law § 96-d.Return to Text
^[8]See, e.g., People ex rel. Freel v. Downs, 136 N.Y.S. 440 (N.Y. Magis. Ct. 1911) (cruelty charge may lie where animal was to be consumed as food); Mudge v. State, 45 N.Y.S.2d 896 (N.Y. Ct. Cl. 1944) (failure to protect farm animals from cold and to provide adequate covering, bedding, food or water was cruelty).Return to Text
^[9]See, e.g., Ricco v. Corbisiero, 165 A.D.2d 3 (1st Dep't 1991).Return to Text
^[10]People v. O'Rourke, 83 Misc.2d 175 (Crim. Ct. N.Y. Co. 1975); People v. Miller, 31 Misc.2d 1067 (N.Y. Magis. Ct. 1961); see also People v. Koogan, 256 A.D. 1078 (2d Dep't 1939) (permitting horse to be hired out while knowing of the horse's open sores was cruelty).Return to Text
^[11]See Jones v. Beame, 86 Misc.2d 832 (N.Y. Sup. Ct. N.Y. Co. 1976), rev'd on other grounds, 56 A.D.2d 778 (1st Dep't 1977) (absence of effective veterinary care, lack of proper habitats, inadequate protection, untrained zoo caretakers, resulting in death and mental and physical suffering, if proved, would constitute "blatant cruelty to animals"); People v. O'Rourke, 83 Misc.2d 175 (Crim. Ct. N.Y. Co. 1975) (failure to provide medical care to working horse constitutes cruelty); Mudge v. State, 45 N.Y.S.2d 896 (N.Y. Ct. Cl. 1944) (failure to protect farm animals from cold and to provide adequate covering, bedding, food or water was cruelty).Return to Text
^[12]Thus, a caretaker may be prosecuted for failing to feed an animal properly. People v. Arcidicono, 75 Misc.2d 294 (N.Y. Dist. Ct. 1st Dist. Suffolk Co. 1973), aff'd, 79 Misc.2d 242 (N.Y. App. Term 2d Dep't 1974).Return to Text
^[13]People v. Minton, 170 Misc.2d 272 (N.Y. Crim. Ct. 1996) (opinion also includes a thorough history of the New York cruelty statute).Return to Text
^[14]N.Y. Ass., Memo on bill 8338-A, Reg. Sess. (N.Y. 1999-2000).Return to Text
^[15] Id.Return to Text
^[16]Black's Law Dictionary 1 (6th ed. 1991).Return to Text
^[17]Webster's II New Riverside University Dictionary 1 (2d ed. 1994).Return to Text
^[18]Penal Law § 110.05(8). This is so even where the misdemeanor is defined outside of the Penal Law. A misdemeanor is an offense, which may be defined in any state or local law or ordinance. Penal Law § 10.00(1) & (4).Return to Text
^[19]Criminal Procedure Law § 340.40(2).Return to Text
^[20]People v. Williams, 120 Misc.2d 68, 78 (N.Y. Crim. Ct. Bronx Co. 1983).Return to Text
^[21]However, care must be exercised in charging an attempt to commit misdemeanor animal cruelty. An attempt to commit a crime may not be charged where the underlying crime is itself an attempt crime, since one cannot attempt to attempt a crime. People v. Lynn, 115 Misc.2d 76 (N.Y. App. Term 1982). The cruelty statute includes, as one of its alternative grounds for culpability, an attempt element, i.e., "any act tending to produce . cruelty." Agriculture & Markets Law § 353 (emphasis added); compare Penal Law § 110.00 which defines an attempt to commit a crime as "conduct which tends to effect the commission of [a] crime" (emphasis added). Consequently, to charge an attempt to commit animal cruelty, the ground for cruelty relied upon in the complaint must be some other ground provided in the cruelty statute.Return to Text
^[22]Penal Law § 195.06.Return to Text
^[23]Penal Law §§ 195.11 and 195.12.Return to Text
^[24]In addition, several state and city statutes provide for administrative procedures regarding dangerous dogs and impose civil and criminal sanctions on their owners. See, e.g., Agriculture & Markets Law § 121; New York City Health Code § 161.07; and New York City Administrative Code § 17-342 et seq.Return to Text
^[25]New York City Charter § 558(e).Return to Text
^[26]New York City Health Code § 3.12.Return to Text
^[27]New York City Criminal Courts Act § 95.Return to Text
^[28]City Admin. Code § 14-140.Return to Text
^[29]City Admin. Code § 14-140(b).Return to Text
^[30]City Admin. Code § 14-140(g).Return to Text
^[31]Memorandum of Understanding, dated October 3, 1996, and as subsequently renewed.Return to Text
^[32]City Admin. Code § 14-140(h).Return to Text
^[33]Agriculture & Markets Law § 371. See also Mudge v. State, 45 N.Y.S.2d 896 (N.Y. Ct. Cl. 1944) (in farm animal neglect case, state troopers were "under obligation" to arrest farmer).Return to Text
^[34]Agriculture & Markets Law § 371.Return to Text
^[35]Agriculture & Markets Law § 373(4).Return to Text
^[36]Agriculture & Markets Law § 372.Return to Text
^[37]Agriculture & Markets Law §§ 372 and 373(2). See People v. Linder, 156 Misc.2d 417 (N.Y.Crim. Ct. 1992) ASPCA officer's visual, auditory and olfactory observations were sufficient to support issuance of search warrant).Return to Text
^[38]See, e.g., Criminal Procedure Law Articles 120 (arrest warrants) and 690 (search warrants).Return to Text
^[39]Agriculture & Markets Law § 375.Return to Text
^[40]Agriculture & Markets Law § 376.Return to Text
^[41]Although the statute lacks some precision on this point, "dismissal of the charges" clearly means dismissal of all charges arising out of the criminal transaction that gave rise to the animal-related charges. Thus, a plea bargain wherein the defendant is permitted to plea to a violation such as Disorderly Conduct (Penal Law §240.20) in return for dismissal of the animal-related charges should not result in a full refund of the security and return of the seized animal. This is reflected in the fact that an adjournment in contemplation of dismissal, a less onerous disposition than a plea to a violation, would not trigger the refund provision.Return to Text
^[42]Agriculture & Markets Law § 374(5)(c).Return to Text
^[43]Criminal Procedure Law § 530.13(4).Return to Text
^[44]The introductory clause clearly limits the hearing requirement to orders of forfeiture of farm animals. "Farm animal" is given its common meaning in § 350(4).Return to Text
^[45]Penal Law § 65.10(2)(l).Return to Text
^[46]Penal Law § 65.10(5).Return to Text
^[47]See, e.g., People v. Gould, 242 A.D.2d 583 (2d Dep't Sept. 15, 1997) (although condition barring convicted pedophile from contact with minors was not among conditions challenged on appeal, it was treated with approval by court and recognized as rehabilitative in dissent); cf. People v. Letterlough, 86 N.Y.2d 259 (1995) condition requiring affixation of "Convicted DWI" sign to defendant's vehicle was improperly intended by sentencing court as punitive rather than rehabilitative).Return to Text
^[48]Penal Law § 60.35(1)(a); Criminal Procedure Law § 420.35; Penal Law §10.00 (defining "offense" to include a non-Penal Law offense).Return to Text
^[49]Criminal Procedure Law Art. 720; Penal Law § 10.00 (defining "crime" to include a non-Penal Law offense that is a misdemeanor or felony).Return to Text
^[50]Penal Law § 10.00(18); Criminal Procedure Law § 1.20(42), Art. 725.Return to Text
^[51]Agriculture & Markets Law § 351(2). These unclassified felonies are deemed, for sentencing and other purposes, class E felonies. Penal Law § 55.10(1)(b).Return to Text
^[52]Penal Law § 70.06(1).Return to Text
^[53]Penal Law § 70.10(1).Return to Text

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Committee on Legal Issues Pertaining to Animals

Committee Members

Gilda I. Mariani, Chair
Dori Lewis, Secretary
Neil H. Abramson
Elaine N. Avery
Victoria J. Brademan
Kevan Cleary
Todd F. Davis*
Jane J. Dickson
Thorsten H. Dietz
Patricia Doyle
Gale Fieldman
David M. Fish
John Fishman
Herbert S. Forsmith
Robert Michael Hirsh
Jane Ellen Hoffman
Mark Hsu
Jacqueline R. Jurkowicz
Lawrence Mart Levinson
Marie Ann Mar
Julie Ilene Masters
John McKew
Marc L. Ragovin
William S. Strauss
Mariann Sullivan
Noreen C. Sweeney
Darryl M. Vernon
Carolyn M. Walsh
Lisa B. Weisberg
Susan C. Wolfe
David J. Wolfson
Susan J. Zach
Joel R. Zand
Mary Marsh Zulack

Adjunct Members

Nancy Ashley, DVM
Marjorie Cramer, MD
Diane Gover
Christine MacMurray

* Principal author of this guide

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