Opinion
04040624.
Decided June 4, 2004.
Renee Z. Merges, Esq., William Gray, Esq., John Breeze, Esq.
BACKGROUND
On May 3, 2004, an Application for Search Warrant made by Sgt. Brian Hughes of the Bethlehem Police Department, seeking to search the farm of Dominick Cubello, located at 29 Oakwood Road, Delmar, New York, was presented to the Court (Frank Milano, Town Justice). After reviewing the Application and questioning Sgt. Hughes the Court signed the warrant and authorized a search of the described premises. The following day, May 4, 2004, the Bethlehem Police Department executed the search warrant, arrested Mr. Cubello and charged him with one count of Throwing Substance Injurious to Animals in Public Place, in violation of Article 26, Section 362 of the Agriculture and Markets Law and fifty-six (56) counts of Overdriving, Torturing and Injuring Animals; Failure to Provide Proper Sustenance, in violation of Article 26, Section 353 of the Agriculture and Markets Law. On May 10, 2004, Mr. Cubello, as a Defendant in a criminal proceeding, was arraigned by the Court on the fifty-seven (57) criminal charges. At that time, Petitioner Mohawk and Hudson River Humane Society ("Humane Society"), by filing a Petition with the Court, commenced a proceeding, civil in nature, under Section 373 of the Agriculture and Markets Law ("Section 373 Hearing"), against Dominick Cubello, as Respondent, seeking reimbursement from Mr. Cubello for any costs incurred by the Humane Society for the care and feeding of animals which had been seized the previous day, removed from the Cubello farm and placed in other locations. The Petition and supporting documentation are appended hereto and made part of this Decision and Order. Under Section 373 of the Agriculture and Markets Law, a hearing must be conducted within ten business days of filing of the Petition to ascertain whether, by a preponderance of the evidence, the person from whom animals are seized, violated a provision of Article 26 of the Agriculture and Markets Law (Section 373(6)(b)(1) of the Agriculture and Markets Law). Accordingly, the Court ordered a hearing under Section 373 of the Agriculture and Markets Law be held on May 24, 2004. The hearing went forward on that date, was continued on May 25, 2004 and concluded on May 25th. If a violation of Article 26 of the Agriculture and Markets Law is proven, the Court has the discretion to order the Respondent to post security necessary to provide for the care and feeding of the seized animals for at least 30 days (Section 373(6)(a) of the Agriculture and Markets Law).
PRELIMINARY MOTIONS
At the outset of the Section 373 hearing, Respondent, by attorney Gray, objected to the participation of Renee Merges in the civil proceeding. The basis of Mr. Gray's objection was that Ms. Merges, as the Assistant District Attorney handling the criminal prosecution of Mr. Cubello as a Defendant on the aforementioned fifty-seven criminal charges, should not be permitted to assist the Petitioner, the Humane Society, in presenting evidence in the civil Section 373 hearing. The Court overruled Mr. Gray's objection (to which he took an exception) and permitted Ms. Merges to participate, which she did. The Court's articulated reasons in overruling Mr. Gray's objection were as follows:
1. Under Section 373(6)(b)(1) of the Agriculture and Markets Law, the District Attorney is a party required to be served with a copy of the Petition commencing the Section 373 hearing. 2. Ms. Merges, were she to participate, would be representing the interests of the Petitioner in a civil matter, not representing the interests of the People of the State of New York in a criminal matter. 3. Whether participating or not, Ms. Merges could observe all of the proceedings of the hearing pursuant to Section 373 of the Agriculture and Markets Law in an open courtroom. Next, Mr. Gray asked the Court to recuse itself, stating a possible intention to call the Court as a witness. When asked to explain the basis of his motion, Mr. Gray indicated that since the Court signed the search warrant for the Cubello farm, he possibly wanted to question the Court on the facts and circumstances which gave rise to the issuance of the search warrant. When asked by the Court to further explain the basis of the motion, Mr. Gray indicated his position was that since the Bethlehem Police Department was the seizing agent (pursuant to the application for, and terms of, the issued search warrant), it and it alone, not the Petitioner, was responsible for the seized items (in this case, animals), and as holder of seized evidence in a criminal matter, the Police Department was not entitled to be paid for holding the seized evidence. As such, Mr. Gray argued, the Petitioner Humane Society was not eligible to be reimbursed for any costs incurred in caring for the seized animals. When asked for legal support of his position, Mr. Gray pointed to the novelty of cases of this type and indicated he had none. It should be noted that Mr. Gray's motion was not based upon any claim that the Court's ability to be fair or impartial in conducting the Section 373 hearing was being called into question by reason of the Court having signed the search warrant authorizing the search of the Cubello farm. The Court denied Mr. Gray's motion that it recuse itself, to which Mr. Gray took an exception. The Court's articulated reason was that Section 373 of the Agriculture and Markets Law created a statutory basis for standing of the Petitioner, authorizing the Humane Society to bring a proceeding for reimbursement of costs incurred to care for the seized animals. The Court indicated its view of Section 373 of the Agriculture and Markets Law was that it statutorily conferred such rights upon the Petitioner irrespective of the fact that the seized animals were obtained by the Bethlehem Police Department pursuant to a duly obtained and executed search warrant, after which the Police Department turned the care of the seized animals over to Petitioner Humane Society.
POST HEARING MOTIONS
At the conclusion of the hearing Mr. Gray reiterated his two preliminary motions, in slightly different form. First, he moved to call the Court as a witness for the reasons set forth above. The Court denied the motion, to which Mr. Gray took an exception. In addition to referring to the Court's previously articulated reasons for denying the Respondent's preliminary motion of the previous day, the Court added that Section 373(2) of the Agriculture and Markets Law expressly provides for animals to be seized pursuant to actions taken under a duly issued search warrant (as here), and that thereafter, a hearing of this type would be held pursuant to Section 373(6)(a) of the Agriculture and Markets Law, which reads in pertinent part "If any animal is seized and impounded pursuant to the provisions of this section the duly incorporated society for the prevention of cruelty to animals, humane society may file a petition with the Court requesting that the person from whom the animal was seized or the owner of the animal be ordered to post a security". Next, Mr. Gray explained the Respondent rested after having called a veterinarian, Dr. Ronald Peters, as his only witness, expressing a desire to call Mr. Cubello, but not wanting to expose Mr. Cubello to possible criminal liability, fearful of that since Assistant District Attorney Merges was permitted to, over his objection, participate in the hearing. He again wanted to make his objection to Ms. Merges's participation known. Ms. Merges responded that Mr. Gray could have made a motion to seal whatever records were created under the Section 373 hearing that he wished to have sealed and that he made no such motion. Ms. Merges further added that, participating or not, she could have observed all of the Section 373 hearing proceedings. The Court again overruled Mr. Gray's objections to Ms. Merges's participation, to which he took an exception, and referred to the Court's articulated reasons in denying the preliminary motion of the previous day as its basis. Further, the Court cited the case of Montgomery County Society For The Prevention of Cruelty To Animals v. Juliana Bennett-Blue, 255 AD 2d 705, 681 NYS 2d 106 (Third Department, 1998), involving a matter where, as here, an individual faced both civil and criminal proceedings arising out of allegations of cruelty to animals. That matter also involved, as here, a civil proceeding under Section 373 of the Agriculture and Markets Law.
There, the Court ruled two different proceedings could be brought against an individual, one criminal and the other civil, without the doctrines of collateral estoppel, res judicata or double jeopardy being violated.
FINDINGS OF FACT
1. Respondent Dominick Cubello is the owner of the farm located at 29 Oakwood Road, Delmar, New York. 2. The farm of Dominick Cubello, located at 29 Oakwood Road, Delmar, New York, on May 4, 2004, was strewn with debris, including but not limited to metal objects, broken glass, aluminum siding, sharp objects and nails. 3. Several of the animals housed at that location at that time were lame. 4. Several of the animals housed at that location at that time were dirty, covered in feces, and, depending upon the animal in question, missing feathers or having matted, dulled coats. 5. Several of the animals housed at that location at that time were malnourished. 6. Several of the animals housed at that location at that time were living in filth, and in at least two circumstances, housed in stalls containing between 18 inches and 24 inches of feces. 7. Several of the animals housed at that location at that time, were lacking proper grooming, suffering in some instances from overgrown hooves, hoof rot and not being properly shorn. 8. Inadequate food and water was present at that location at that time necessary for the care and feeding of the animals then and there present. 9. Animals housed at the farm, at 29 Oakwood Road, Delmar, New York, including horses, goats, sheep, cows, pigs, ducks, rabbits and guinea fowl, are animals covered under Section 373 of the Agriculture and Markets Law.
DECISION AND ORDER
The conditions under which farm animals housed at the farm of Dominick Cubello at 29 Oakwood Road, Delmar, New York on May 4, 2004 were living, including horses, goats, sheep, cows, pigs, ducks, rabbits and guinea fowl, can only be described, in a word, as deplorable. Testimony of Sgt. Brian Hughes of the Bethlehem Police Department, Robert Guyer, Executive Director of the Petitioner Mohawk and Hudson River Humane Society, and veterinarian Dr. Holly Cheever, all present at the farm on May 4, consistently and convincingly described a location in substantial disrepair. Fencing with holes, fencing down, grounds strewn with metal objects, broken glass, nails, aluminum siding, car products and other debris was observed. All three of the witnesses also gave detailed, consistent and convincing testimony regarding the physical conditions under which the animals lived and the physical condition of the animals themselves on May 4th. As to the latter, of particular relevance was the testimony of Mr. Guyer, Executive Director of the Humane Society for seventeen years and qualified as an animal cruelty investigator, and Dr. Holly Cheever, a vet for twenty four years. As to the conditions under which the animals lived, the witnesses described seeing no food or water available to the animals, other than 3 bales of hay (outside the fencing of the farm), untouched cobweb-infested bread, and no produce other than some heads of spoiled broccoli. A pond containing water was on the property but it was not observed to be accessible to all of the animals during the visit of May 4th. Dr. Cheever described a dead hog being eaten by other animals and further described animals as "desperate" for water and food. The animals were described as living in filth, their exteriors caked in mud and feces. Dr. Cheever described one calf in a stall standing in liquid manure up to its knees. She further observed a second calf, in the dark, in a stall up to its knees in urine and feces, suffering from skin infections, underweight and "desperate for food and water". The descriptions of the physical condition of the animals were particularly gruesome and compelling, especially when described by the trained eyes of Mr. Guyer and Dr. Cheever. Among their observations, and only meant as illustrative, not to be an exhaustive recounting of their testimony, were these: 1. Several lame animals, including a ram walking on its "knees"; 2. Several malnourished animals, ranging in description from "underweight" to "skinny" with ribs and hips showing (Sgt. Hughes) to "emaciated" (Dr. Cheever), also suffering from "dehydration"; 3. Several animals with a variety of physical ailments or deformities including those with overgrown hooves, some with hoof rot, one with a skull depression or "concave skull", and many suffering from diarrhea; 4. Several animals missing feathers, others with dulled coats. Beyond the particular examples described above, substantial testimony regarding the general living conditions and physical conditions of the animals was heard, universally described as poor and substandard living conditions and animals in poor, or worse, physical condition. Mr. Gray established that the witnesses' presence on the farm on May 4 was limited to a particular time frame and that none of the witnesses could testify to the animals having been fed prior to or after the visit of the Bethlehem Police Department and representatives of the Humane Society. That, however, begs the question as to the treatment, care and feeding the animals received over time and on that point the Court finds their treatment, care and feeding to have been woefully inadequate. Dr. Ronald Peters, a veterinarian for twenty seven years, testified on behalf of Respondent, based upon his viewing and examining some (but not all) of the animals taken from the farm on May 4th. Dr. Peters saw these animals on May 19, 2004 at a location to which some of the animals seized had been taken. Based upon these observations, Dr. Peters testified that of the animals he observed, none "were critically bad on May 4" and that they were" not critically malnourished". The Court found Dr. Peters testimony to be of limited probative value for the following reasons: 1. He did not observe the animals or the conditions under which they lived on May 4th at the farm, nor did he observe the Cubello farm; 2. He observed and examined but a limited percentage of the animals which had been on the Cubello farm; 3. His use of the qualifying term "not critically malnourished" in describing the animals he did observe, far from tending to rebut the proof presented by the Petitioner, tended to prove the animals were, in fact, malnourished. For all of the foregoing reasons, the Court finds that the Petitioner has proven by a preponderance of the evidence presented that violations of Article 26 of the Agriculture and Markets Law involving animals seized from the farm of Dominick Cubello on May 4, 2004 were committed by Mr. Cubello, the individual from whom the animals were seized. Having so found, it then falls within the Court's discretion to fix security in an amount and type sufficient to reimburse the costs incurred by Petitioner to care for the animals for a period of at least thirty days. Included in the Petition, and supported by the testimony of Robert Guyer, was an estimate of $13,025 for such care. Under Section 373(6)(a) of the Agriculture and Markets Law, the Court shall determine the amount of security, taking into account all of the facts and circumstances of the case. The Petitioner's recommendation of $13,025 is based upon a per day charge of $10.00 for each large animal seized and a per day charge of $5.00 for each small animal seized, plus a veterinarian fee of $425.00. These estimates cover 30 days of care. Testimony was received during the hearing that the seized animals represented only half of the animals at the Cubello farm. Based upon the recommendations of the Humane Society, mindful of the mathematical calculations used to arrive at $13,025 for 30 days care and realizing that that figure only covers half of the Cubello farm animals, monthly care for the entire farm animal population would approximate $26,000 per month, or $312,000 per year. That, to the Court, seems excessive, given the size of the Cubello farm. Accordingly, the Court, exercising the discretion conferred upon it under Section 373 of the Agriculture and Markets Law, finds an initial amount of $7,500.00 to be reasonable to care for the seized animals for a period of thirty days, covering the period of May 4, 2004 to June 3, 2004. The figure of $7,500.00, set as necessary for reasonable costs incurred by the Petitioner for an initial 30 day period, is expressly made without prejudice to the Court hereafter, if need be, ordering security in a lesser or greater amount. If future application of this kind is made to the Court, consistent with demonstrated expenses incurred during an initial 30 days care, or 30 day periods subsequent thereto, the Court may order security in a lesser or greater amount. Respondent Dominick Cubello is hereby ordered to deposit with the Bethlehem Town Justice Court Clerk, no later than 3:00 p.m., June 11, 2004, cash or certified funds in the amount of $7,500.00, to be drawn against for the costs incurred by the Petitioner in the care of the animals seized from the Cubello farm on May 4, 2004, said care provided during the time period of May 4, 2004 to June 3, 2004. As ordered by the Court on May 10, 2004, when the Section 373 hearing was scheduled, the Respondent continues to be under two ongoing Court orders. First, the Respondent is ordered to provide proper care, treatment and feeding of the farm animals which were not seized and which remain at the farm on 29 Oakwood Road. Second, the Bethlehem Police Department may visit the farm premises any day between the hours of 9:00 a.m. and 6:00 p.m. to ensure such care and treatment is being provided, without further authorization of this Court. Such visits may not be utilized to conduct a further search of such premises, and any further search of the premises may only take place pursuant to a search warrant issued by a Court of competent jurisdiction.
SO ORDERED.