STATE OF NEW YORK COUNTY COURT COUNTY OF FULTON DECISION AND ORDER -against- BENTLEY VALDEZ, Indictment No.: 2017-064 Defendan/Respondent. APPEARANCES: For the Petitioner James A. Brennan Memorial Humane Society, Inc.: Jonathan G. Seopf, Esq. For the Defendan/Respondent: Allen R. Day, Esq. HOYE, J. ‘This matter comes before me following a two day hearing held on July 10,2017 and July 18, 2017 pursuant to Agriculture and Markets Law § 373(6)(b)(1). Upon the testimony adduced before ‘me and upon all of the papers and proceedings heretofore had herein, and due deliberation having been had thereon, I now make this decision and order. On June 29, 2017, petitioner, the James A. Brennan Memorial Humane Society, Ine. (hereinafter “petitioner”), submitted a proposed order to show cause and petition for the Court's review. The Court signed said order to show cause on Tune 29, 2017 and pursuant to Agriculture and Markets Law § 373(6)(b)(1) set a hearing for July 10, 2017, at 9:00 a.m. During the hearing, Dr. James H. Smith, Jr. a licensed veterinarian (hereinafter “Dr, Smith”), New York State Trooper Jason Kemmet (hereinafter “Trooper Kemmet"), New York State Police Investigator Adam Maggs 1(hereinafter “Inv. Maggs”) and Thomas Hall, Vice-President of the Board of Petitioner (hereinafter “Hall”), testified for petitioner. Respondent did not testify or present any witnesses at the hearing, ‘The Court gives credence to the testimony of petitioner’s witnesses because their testimony appeared to be intemally consistent without significant variation and followed logically and reasonably. In addition, petitioner’s witnesses appeared frank, candid and trustworthy On April 5,2017, Karen J. Jaquay (hereinafter “Jaquay”), Dog Control Officer for the Town of Stratford, received a complaint regarding the alleged maltreatment of French Mastiff dogs located at 404 County Highway 104, in the Town of Stratford, According to Ms. Jaquay’s supporting deposition, she received a phone call from an individual who works for a foreclosure company who ‘was sent to the subject property to take photographs on behalf of a bank (Petitioner's Exhibit 1). Taquay went to the residence and, upon observing the condition of the dogs, immediately notified the New York State Police (Petitioner's Exhibit 1). Trooper Kemmet was then dispatched to the residence. Trooper Kemmet went to the front and side doors and did not observe anyone. Trooper Kemmet stated that there was a truck parked in the yard which was registered to the respondent. Trooper Kemmet testified that there were multiple dogs in pens and cages located outside the residence, Trooper Kemmet further testified that he initially observed two dogs that appeared dead and three living dogs which appeared emaciated but living. Trooper Kemmet called his superiors to report his observations. Trooper Kemmet then conversed with Jaquay and took a deposition from her (Petitioner's Exhibit 1). Inv. Maggs testified that, after arriving on scene, he viewed multiple living and deceased dogs. Trooper Kemmet and Inv. Maggs described, in detail, where they located the living and deceased dogs. Inv. Maggs prepared a diagram depicting the residence, barn and outbuildings where they located said dogs (Petitioner’s Exhibit 171). Inv. Maggs and Trooper Kemmet testified that the dogs had no food or water available to them. Trooper Kemmet testified that he was unable to ascertain whether anyone was living at the subject residence and that he went inside the residenceto see iff anyone was there. Similarly, Inv. Maggs testified that the State Police were trying to ascertain where the owner of the residence was and thought the owner may be deceased or injured inside the house. Trooper Kemmet testified that he saw a dog through the window which did not appear to move. Trooper Kemmet testified that as he opened the doorhe instantly smelled ammonia and his eyes started to burn. After conducting a search of the residence, Inv. Maggs testified that the State Police developed a plan to remove the twelve living dogs.' The State Police contacted petitioner who agreed to receive the dogs and provide care for them. The living dogs were then Temoved from the premises. The following day, April 6, 2017, Inv. Maggs applied for a search warrant for the subject premises (Petitioner's Exhibit 3). Said search warrant was signed by this, Court sitting as a local criminal court (Petitioner's Exhibit 2). The State Police then went back to the premises and condueted a further search and removed the deceased dogs. During the hearing, a number of photographs were received into evidence, which depicted, among other things, the condition of the dogs and the conditions in which they were found (Petitioner's Exhibit 5-34; 46-51; 53-169). Evidence of untreated wounds, infections and skin conditions is readily observable from the photographs. Dr. Smith testified that he examined six of the dogs. For example, on April 6, 2017 Dr. Smith examined a dog identified as 1380C who he described as weak, depressed and emaciated, Dr. Smith testified that said dog wes suffering from a severe ear mite infestation, congenital eye condition, thick ulcerated sores, starvation for at least two months and dental is sues. ‘The aforesaid dog passed away on the evening of April 6, 2017. Beyond this example, Dr. Smith provided substantial testimony regarding the physical condition of the animals he examined. In addition, Dr. Smith also proffered his opinion regarding the other dogs that were recovered, but not personally examined by him, based on his visual inspection of photographs, Among his observations and without recounting his testimony and observations in ' It should be noted that the State Police were unable to recover one of the dogs who was loose on the premises despite setting some bait traps. 3their entirety, Dr. Smith observed malnutrition and/or starvation, dental tartar; discharge from ears; yeast infection with bacteria; hair loss: skin lesions; skin mass/tag; hypothermia; uterine horn infection; vaginal hyperplasia; and overgrown nails on several of the dogs. Dr. Smith's patient history reports and veterinary bills for the subject dogs were admitted into evidence (Petitioner's Exhibits 133 and 134). Generally, for distressed animals that are not situated in a public place, a warrant is required fora police officer to take possession. However, “nothing prevents a police officer... from utilizing a warrant substitute under Fourth Amendment Jurisprudence (e.g. emergency ...); and... . nothing prevents a police ... officer from immediately intervening to abate ‘an act of cruelty’ occurring in his or her presence” (see Jed L. Painter, Practice Commentaries, McKinney's Cons Laws of NY, Book 2B, Agriculture and Markets Law § 373; see also Agriculture and Markets law § 371). In the case at bar, the initial complainants were lawfully on the premises and reported the alleged maltreatment to the State Police. In addition, Inv. Maggs testified that some of the dogs could be observed from the road, Regardless, Inv. Maggs and Trooper Kemmet were clearly confronted with an emergency situation, Respondent's vehicle was parked in the driveway and nobody was responding. Inv. Maggs testified that the State Police were trying to ascertain where the owner of the residence was and that le thought the owner may be deceased or injured inside the house. Inv. Maggs and Trooper Kemmet observed numerous dogs visibly in distress and emaciated. Inv, Maggs and Trooper Kemmet also observed several deceased dogs. Inv. Maggs and Trooper Kemmet testified that the dogs had no food or water available to them. Trooper Kemmet testified that he saw dog through the window of the residence, which appeared motionless. Trooper Kemmet testified that the front door was unlocked and that he announced his presence but there was no answer. The record demonstrates that the dogs at issue were being subjected to a dangerous situation, which certainly would have persisted and/or worsened if not immediately addressed. Based on the foregoing and the testimony received at the hearing, the Court finds that the search of the premisesand seizure of the living dogs on April 5, 2017 was proper. Agriculture and Markets Law § 373(6)(b)(1), provides, in relevant part, that “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 Article 26 of the Agriculture and Markets Law. Accordingly, petitioner must merely prove any violation of Article 26 (see Jed L. Painter, Practice Commentaries, McKinney's Cons Laws of NY, Book 2B, Agriculture and Markets Law § 373). In the event petitioner is able to meet its burden, the Court may require respondent to post a security with the clerk of the court within five business days of the hearing (Agriculture and Markets Law §373(6)(0]12). ‘This Court holds and determines that upon reviewing all of the testimony and evidence received in this case that petitioner has met its burden and has proven by a preponderance of the evidence that respondent has violated Article 26 of the Agriculture and Markets Law involving the animals seized from his residence situated at 404 County Highway 104, in the Town of Stratford. Accordingly, the Court is hereby exercising its discretion to fix security “in an amount sufficient to secure payment for all reasonable expenses” expected to be incurred by the petitioner in caring and providing for the animal pending disposition of the charges. Agriculture and Markets Law § 373(6)(a) states that “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.” As of July 9, 2017, petitioner is seeking $60,809.87 for the care of the dogs (Petitioner's Exhibit 173). Specifically, petitioner is seeking $19,520.00 for the storage of 11 deceased dogs; $3,522.99 for the dog named Gertrude; $3,522.99 for the dog named Marjorie; $3,734.99 for the dog named Captain; $3,664.99 for the dog named Ruthie; $3,842.76 for the dog named Mages;$5,556.91 for the dog named Agnes; $3,522.99 for the dog named Martha; $3,545.49 for the dog named Lola; $3,545.49 for the dog named Walter; $3,651.49 for the dog named Maude; $816.64 for the dog named Waylon; $1,812.24 for a security system; and $549.89 for grooming. Petitioner has provided the Court with an itemized breakdown of what they have already incurred for each animal. Petitioner is also secking $35.00 a day for critical care boarding for the nine surviving dogs going forward for a period of 30 days for a total amount of $9,450.00. Respondent is hereby ordered to post, in cash, security in the amount of $68,447.63." Respondent is further ordered to post the security with the Clerk of the Court within five business days of this Decision and Order (see Agriculture and Market’s Law § 373[6][b][2]). In the event respondent posts the security ordered herein, petitioner may draw upon the security for the actual reasonable costs incurred by such organization in caring for the seized dogs. Respondent’s failure to post the Court ordered security may result in the immediate and permanent forfeiture of the seized animals to the petitioner (see Agriculture and Market’s Law § 373(6][b][2)). The foregoing constitutes the Decision and Order of the Court, ENTER pam: Tully 20,2017 HON. POLLY A HOYE Fulton County COurt Judge AIHODe a 20:5 WW 0% Wi Litt ? The Court is not awarding petitioner's request for the security system in the amount of $1,812.24,