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S03806 Summary:

S03806 Actions:

S03806 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          3806
 
                               2011-2012 Regular Sessions
 
                    IN SENATE
 
                                      March 4, 2011
                                       ___________
 
        Introduced  by  Sen.  BALL  --  read twice and ordered printed, and when
          printed to be committed to the Committee on Agriculture
 
        AN ACT to amend the agriculture and markets law, in relation  to  orders
          of restitution in certain cases
 
          The  People of the State of New York, represented in Senate and Assem-

        bly, do enact as follows:
 
     1    Section 1. Legislative purpose. Animal cruelty and animal fighting are
     2  serious crimes in New York state. Because crimes against  animals  often
     3  involve  the  seizure of the victimized animals, these cases pose unique
     4  challenges to law enforcement agencies throughout New York state.  These
     5  challenges  involve  arranging  for  the housing and care of the animals
     6  while the criminal case is pending. Private organizations, such as shel-
     7  ters, humane societies and societies for the prevention  of  cruelty  to
     8  animals  have traditionally assisted law enforcement agencies by provid-
     9  ing care for these animals (which preserves  the  "evidence"  seized  in
    10  criminal matters) with little or no reimbursement.
    11    It  is imperative to the continued prosecution of animal cruelty cases
    12  that these private organizations be reimbursed for the  care  that  they

    13  provide  to  these  victimized  animals.  Many private organizations are
    14  declining to offer assistance in these cases  because  of  the  enormous
    15  financial  burden  of  caring for a large number of animals for extended
    16  time periods with no assurance of reimbursement for these  services.  If
    17  there are no resources to care for the animals once they are seized, law
    18  enforcement  is  less likely to conduct the seizures in the first place.
    19  The legislature therefore intends to  implement  legislation  that  will
    20  improve  the state's ability to ensure proper security and reimbursement
    21  for impounding organizations providing care on behalf of  the  state  of
    22  abused animals.
    23    §  2.  Paragraph  a of subdivision 6 of section 373 of the agriculture
    24  and markets law, as amended by chapter 586  of  the  laws  of  2008,  is
    25  amended to read as follows:
 

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00744-01-1
        S. 3806                             2
 
     1    a. If any animal is seized and impounded pursuant to the provisions of
     2  this  section,  section  three  hundred fifty-three-d of this article or
     3  section three hundred seventy-five of this article for any violation  of
     4  this  article,  upon arraignment of charges, or within a reasonable time
     5  thereafter,  the  court  shall  order a hearing to determine whether the
     6  person from whom an animal is seized or the owner of the  animal  should
     7  be ordered to post a security to reimburse the duly incorporated society

     8  for  the prevention of cruelty to animals, humane society, pound, animal
     9  shelter or any authorized agents thereof, hereinafter  referred  to  for
    10  the purposes of this section as the "impounding organization", [may file
    11  a petition with the court requesting that the person from whom an animal
    12  is  seized or the owner of the animal be ordered to post a security. The
    13  security] for the costs of caring for said seized animals. Any  security
    14  ordered  following  such  a  hearing shall be in an amount sufficient to
    15  secure payment for all reasonable expenses expected to  be  incurred  by
    16  the impounding organization in caring and providing for the animal pend-
    17  ing  disposition  of the charges. Reasonable expenses shall include, but
    18  not be limited to, estimated medical care and boarding of the animal for

    19  at least thirty days. The amount of  the  security,  if  any,  shall  be
    20  determined by the court after taking into consideration all of the facts
    21  and  circumstances  of the case including, but not limited to the recom-
    22  mendation of the impounding organization having custody and care of  the
    23  seized  animal  and the cost of caring for the animal. If a security has
    24  been posted in accordance with this section, the impounding organization
    25  may draw from the security the actual reasonable costs to be incurred by
    26  such organization in caring for the seized animal.
    27    § 3. Paragraphs b and c of subdivision 6 of section 373 of  the  agri-
    28  culture  and markets law, as amended by chapter 256 of the laws of 1997,
    29  subparagraph 2 of paragraph b as amended by section  24  of  part  T  of
    30  chapter 59 of the laws of 2010, are amended to read as follows:

    31    b.  (1)  [Upon  receipt  of a petition pursuant to paragraph a of this
    32  subdivision the] The court shall set a hearing [on the petition]  to  be
    33  conducted  within ten business days of [the filing of such petition] its
    34  hearing order pursuant to paragraph a of this  subdivision.  The  [peti-
    35  tioner]  court  shall  serve a true copy of the [petition] hearing order
    36  upon the impounding organization, the defendant and the district  attor-
    37  ney.   The [petitioner] court shall also serve a true copy of the [peti-
    38  tion] hearing order on any  interested  person.  For  purposes  of  this
    39  subdivision,  interested  person  shall mean an individual, partnership,

    40  firm, joint stock company, corporation, association,  trust,  estate  or
    41  other  legal entity who the court determines may have a pecuniary inter-
    42  est in the animal which is the subject of the [petition] hearing  order.
    43  The [petitioner] district attorney shall have the burden of proving by a
    44  preponderance  of  the evidence that the person from whom the animal was
    45  seized violated a provision  of  this  article,  unless  the  impounding
    46  organization  appears  at  the  hearing  and  requests  to  present such
    47  evidence and meet such burden on its own behalf.   The court  may  waive
    48  for good cause shown the posting of security.
    49    (2)  If the court orders the posting of a security, the security shall
    50  be posted with the clerk of the court within five business days  of  the

    51  [hearing provided for in subparagraph one of this paragraph] order.  The
    52  court  may  order  the  immediate forfeiture of the seized animal to the
    53  impounding organization if the person ordered to post the security fails
    54  to do so. Any animal forfeited shall be made available for  adoption  or
    55  euthanized  subject to subdivision seven-a of section one hundred seven-
        S. 3806                             3
 
     1  teen of this chapter or section three hundred seventy-four of this arti-
     2  cle.
     3    (3)  In the case of an animal other than a companion animal or pet, if
     4  a person ordered to post security fails to do  so,  the  court  may,  in
     5  addition  to  the  forfeiture  to  a  duly  incorporated society for the
     6  prevention of cruelty to animals, humane society, pound, animal  shelter

     7  or  any  authorized  agents  thereof, and subject to the restrictions of
     8  sections three hundred fifty-four, three hundred fifty-seven  and  three
     9  hundred  seventy-four  of  this  article, order the animal which was the
    10  basis of the order to be sold,  provided  that  all  interested  persons
    11  shall  first be provided the opportunity to redeem their interest in the
    12  animal and to purchase the interest of the person ordered to post  secu-
    13  rity,  subject  to  such  conditions  as  the court deems appropriate to
    14  assure proper care and treatment of the animal.  The court may reimburse
    15  the person ordered to post security and any interested persons any money
    16  earned by the sale of the animal  less  any  costs  including,  but  not
    17  limited  to, veterinary and custodial care. Any animal determined by the
    18  court to be maimed, diseased, disabled or infirm so as to be  unfit  for

    19  sale  or  any  useful  purpose shall be forfeited to a duly incorporated
    20  society for the prevention of cruelty to animals or a duly  incorporated
    21  humane  society  or  authorized  agents  thereof,  and  be available for
    22  adoption or shall be euthanized subject to section three hundred  seven-
    23  ty-four of this article.
    24    (4) Nothing in this section shall be construed to limit or restrict in
    25  any  way the rights of a secured party having a security interest in any
    26  animal described in this section. This section expressly does not impair
    27  or subordinate the rights of such a secured  lender  having  a  security
    28  interest in the animal or in the proceeds from the sale of such animal.
    29    c.  In no event shall the security prevent the impounding organization
    30  having custody and care of the  animal  from  disposing  of  the  animal

    31  pursuant  to section three hundred seventy-four of this article prior to
    32  the expiration of the thirty day period covered by the security  if  the
    33  court  makes a determination of the charges against the person from whom
    34  the animal was seized prior thereto. [Upon receipt of  a  petition  from
    35  the  impounding  organization,  the] The court may order the person from
    36  whom the animal was seized or the owner of the animal to post  an  addi-
    37  tional security with the clerk of the court to secure payment of reason-
    38  able  expenses  for an additional period of time pending a determination
    39  by the court of the charges against the person from whom the animal  was
    40  seized. The person who posted the security shall be entitled to a refund
    41  of  the  security in whole or part for any expenses not incurred by such

    42  impounding organization upon adjudication of the charges. The person who
    43  posted the security shall be entitled to a full refund of the  security,
    44  including  reimbursement  by  the  impounding organization of any amount
    45  allowed by the court to be expended, and the return of the animal seized
    46  and impounded upon acquittal or dismissal of the charges,  except  where
    47  the dismissal is based upon an adjournment in contemplation of dismissal
    48  pursuant  to  section  215.30  of  the criminal procedure law. The court
    49  order directing such refund and reimbursement shall provide for  payment
    50  to  be  made within a reasonable time from the acquittal or dismissal of
    51  charges.
    52    § 4. This act shall take effect on the ninetieth day  after  it  shall
    53  have become a law.