Opinion
04040624.
Decided June 16, 2004.
Renee Z. Merges, Esq., Petitioner.
William Gray, Esq., John Breeze, Esq., Respondent.
By prior Decision and Order of this Court, dated June 4, 2004, the Respondent was found to be in violation of Article 26 of the Agriculture and Markets Law, and ordered to deposit the sum of $7,500.00 with the Bethlehem Town Justice Court Clerk no later than June 11, 2004. Those funds were to cover the care and feeding of farm animals which had been seized and taken from the Respondent's farm. That Decision and Order was made after a hearing conducted pursuant to Section 373 of the Agriculture and Markets Law.
In order to further hear the parties on what remedies, if any, the Court should order, the parties were again summoned and heard on June 15, 2004. At the proceedings of June 15, 2004, the Court amended its Decision and Order of June 4, 2004 to, pursuant to Section 373(7) of the Agriculture and Markets Law, allow representatives of the Petitioner to accompany the Bethlehem Police Department to any further visits to the Cubello farm at 29 Oakwood Road, Delmar, New York, which the Court had authorized in that Decision and Order. Mr. Gray objected, arguing the conclusion of the civil matter divested the Court of such authority under Section 373 of the Agriculture and Markets Law. The Court overruled the objection, citing the following sentence from Section 373(7) of the Agriculture and Markets Law, "Until a final determination of the charges is made, any law enforcement officer, officer of a duly incorporated society for the prevention of cruelty to animals, or its authorized agents, may be authorized by an order of the Court to make regular visits to where the animal is being kept to ascertain if the animal is receiving necessary food, water, shelter and care." (emphasis added). The Court indicated the use of the words "charges", in its view, referred to pending criminal charges, and in such case, as here, the Court's authority to authorize visits to a location existed until any filed criminal charges were determined. There remain open criminal charges involving Mr. Cubello on these matters. Mr. Gray took an exception to the ruling of the Court. Mr. Cubello, present in Court, was then asked if he was prepared to deposit $7,500.00 with the Justice Court Clerk, as had been ordered by this Court. He indicated he was not going to deposit such funds. He further indicated that he had no objection, with certain limited exceptions, to having the animals seized from his farm ordered forfeited. Accordingly, for all of the foregoing reasons, pursuant to Section 373 of the Agriculture and Markets Law, the animals seized from the Respondent's farm on May 4, 2004, are hereby ordered forfeited to the Petitioner to either be made available for adoption or to be sold consistent with the provisions of Section 373 (6)(b)(3) of the Agriculture and Markets Law, as the Petitioner deems appropriate. Specifically exempt from this Order are the following animals of the Respondent, which are to be returned by the Petitioner to the Respondent, at a date, time and location of mutual convenience to be arranged by the parties: 1. One goat named Annabelle, 2. One male lamb, black and white in color, to be identified by the Respondent, and, 3. One guinea pig, to be identified by the Respondent.
SO ORDERED,