NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A775B
SPONSOR: Rosenthal (MS) TITLE OF BILL: An act to amend the agriculture and markets law and
the penal law, in relation to promoting understanding, awareness and
enforcement of animal crimes laws; and to repeal sections 351, 353,
353-a, 353-b, 353-d, 355, 360, 361, 362 and subdivision 8 of section 374
of the agriculture and markets law relating thereto
PURPOSE OR GENERAL IDEA OF THE BILL:
This bill seeks to clarify, modernize, and restructure the animal crimes
laws of New York State. It does so by transplanting certain sections of
the Agriculture and Markets Law into the Penal Law, re-defining statuto-
ry terms, re-titling animal crimes offenses, altering the classification
of certain animal crimes offenses, delineating specific sentencing
provisions for animal, crimp offenses, introducing various new animal
crimes offenses. Additionally, this bill serves to create a hierarchy of
offenses for charging, plea-bargaining, and cross-referencing purposes.
Finally, this bill serves to address and rectify the many antiquated
passages, vague definitions and concepts, and outmoded language
contained in the current Agriculture and Markets statutes. Ultimately,
the purpose of this bill is to promote sound enforcement and consistent
interpretation of animal crimes by members of law enforcement and the
court system.
SUMMARY OF SPECIFIC PROVISIONS:
Article 26 of the Agriculture and Markets Law is mended by removing the
most common patrol-scenario provisions. These provisions are trans-
planted into a new Penal Law Title (Q), discussed below. Additionally,
Article 26 is generally amended to incorporate appropriate cross-refer-
encing provisions.
The existing section 350 of the Agriculture and Markets Law is modified
by adding subdivision 6, which provides the definition of an "animal
cruelty offense;" a term used to help define the scope of various other
proposed and existing statutes involving evidence collection, animal
disposition, and sentencing. The term also goes beyond enumerated crimes
to include any offense by which an animal is victimized (e.g. reckless
endangerment of property; criminal mischief). The existing section 350
of the Agriculture and Markets Law is further modified adding subdivi-
sion 7, which provides the definition of a "duly incorporated society
for the prevention of cruelty to animals," which is a cross-reference to
the provisions providing for the creation and powers of such entity as
contained in the not-for-profit corporation law.
The existing sections 351, 353, 353-a, 355, 360, 361, and 352 of the
Agriculture and Markets Law are removed entirely and variations of these
statutes appear in the proposed Penal Law Title Q. Sections 353-b and
353-d are removed and inserted verbatim in the proposed Penal Law Title
Q.
The existing sections 369 and 371 of the Agriculture and Markets Law are
given language which helps to incorporate them and otherwise make them
applicable to the provisions of the proposed Penal Law Title Q. The
existing subdivision 6 of section 373 of the Agriculture and Markets Law
is amended to add other agencies to qualify as impounding organizations
for the purposes of petitioning for a security bond in order to obtain
reasonable boarding expenses pending criminal litigation. The addition
of the other agencies comports with the fact that these agencies may
become responsible for the impound if the animal were seized or impound-
ed pursuant to a search warrant obtained under article 690 of the crimi-
nal procedure law. For consistency, the term "impounding organization"
is further regularized in later subsections of subdivision 6.
The existing section 374 of the Agriculture and Markets Law is modified
by detaching the special sentencing provisions contained, but somewhat
obscured by their placement in subdivision 8. These special sentencing
provisions are moved to a new section, 380, which makes cross-referenc-
ing to these provisions much easier. Additionally, the special sentenc-
ing provisions are made to apply to all "animal cruelty offenses" (as
that term is now defined in the proposed subdivision 6 of section 350),
instead of continuing an itemized listing of applicable statutes. The
proposed section 380 of the Agriculture and Markets Law then reorganizes
the special sentencing provisions into subdivisions for greater clarity.
Finally, subdivisions 1, 2, and 6 of section 380 add language which
would permit the court to order forfeiture of the animal to an animal
shelter, pound, sheriff, police officer, or district attorney, in addi-
tion to a society for the prevention of cruelty to animals. As the law
is currently written, it stands to limit the forfeiture to a society for
the prevention of cruelty to animals only, which may cause problems if
either the society is overwhelmed or overburdened with animal wards at
that point in time or if the county is without such a society. The pres-
ence of a such a society is not mandated by law. By incorporating addi-
tional law enforcement entities and animal shelters, there would be
additional outlets for animal placement.
Subdivision 3 of the proposed section 380 eliminates the wording "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." This is due to the simple fact
that this present language, if acted upon, would constitute a gross
violation of the due process rights on an Unaccused party that is not
under the jurisdiction of the sentencing court. If, indeed, there were
such a person, that person would have been or should have been separate-
ly charged under accomplice liability or otherwise, and received an
individual determination under section 380. Subdivision 5, which repres-
ents a possible sale restriction for farm animals, is likewise modified
to eliminate possible constitutional concerns. The language is amended
to reflect a possible court restriction on sale or transfer to a
charged, but not adjudicated, co-defendant or coconspirator.
Additionally, language has been added to subdivision 3 in an effort to
alleviate the constitutional cloud over the term "reasonable. " The
language and criteria is thusly elaborated: "In making its determination
of what period of time is reasonable, the court shall take into account
the totality of the circumstances before it and be bound to no single
factor. Such order must be in writing and specifically state the period
of time imposed."
Subdivision 4 of the proposed section 380 adds the term "used" in
regards to scientific testing. As the language of section 374 stands
presently, the absence of this term is an oversight that would permit
the shelter, pound, or duly incorporated society for the prevention of
cruelty to animals to experiment on the animals themselves, while
prohibiting their sale or transfer for that purpose.
The gravamen of the bill is the amendment of the Penal Law by adding a
new Title Q, which is comprised of animal cruelty offenses and largely
based upon the former provisions of Article 2.5 of the Agriculture and
Markets Law. The Title consists of a new Article 280, which is captioned
"Offenses against Animals."
Section 280.00 is introduced to the Penal Law and contains the bulk of
the definitions for the proposed Article 280. Subdivision 1 is a verba-
tim reproduction of subdivision 1 of section 350 of the Agriculture and
Markets Law. Subdivision 2 is a reproduction of subdivision 2 of section
350 of the Agriculture and Markets Law with an important addition that
serves to outsource clutter from the proposed section 280.20. This addi-
tional language is based on passages from the existing section 353 of
the Agriculture and Markets Law. Importantly, the definitions of "cruel-
ty" and "torture," which appeared together in subdivision 2 of section
350 of the Agriculture and Markets Laws, are now severed. The definition
of "torture" now appears in subdivision 4 of the proposed definitions
section and derives entirely from a segment of the present definition of
"aggravated cruelty," as that term currently appears in section 353-a of
the Agriculture and Markets Law. Subdivision 3 is a near-verbatim
reproduction of language found in subdivision 1 of section 353-a of the
Agriculture and Markets Law, the only difference being the aforemen-
tioned severance of verbiage which is transferred as the definition of
the term "torture." Subdivision 5 is based up on subdivision 3 of
section 350 of the Agriculture and Markets Law. Subdivision 6 is a
near-verbatim reproduction of subdivision 4 of section 350 of the Agri-
culture and Markets Law. Subdivision 7 is a near-verbatim reproduction
of subdivision 5 of section 350 of the Agriculture and Markets Law with
a minor change in sequencing on the second couplet of "companion animal
"or "pet." Subdivision 8 is a verbatim reproduction of language which
appears in subdivision 1 of section 351 of the Agriculture and Markets
Law. Subdivision 9 was composed to provide a concrete definition of
"abandons" as that term is used in the proposed section 280.20 of the
Penal Law. Subdivision 10 provides a definition of "restrain" and was
substantially based on subdivision 1 of section 135.00 of the Penal Law.
Subdivision 11 provides a definition of "abduct" and was substantially
based on subdivision 2 of the section 135.00 of the Penal Law.
Section 280.05 is introduced as one of two statutes taken from section
351 of the Agriculture and Markets Law. The current section 351 of the
Agriculture and Markets Law covers multiple crimes, both misdemeanors
and felonies. This bill splits the conglomerate into two separate stat-
utes, Section 280.05 and Section 280.10, for clarity and comprehensi-
bility. Subdivision 1 of section 280.05 is based on subparagraph (e) of
subdivision 2 of section 351 of the Agriculture and Markets Law. Subdi-
vision 2 of section 280.05 is loosely based on subparagraph (b) of
subdivision 4 of section 351 of the Agriculture and Markets Law, but
modifies the measure component for clarity of what is required for
commission of the offense. Section 280.10 is introduced to replace the
felony components of section 351 of the Agriculture and Markets Law. It
is a substantial reproduction of the statute, with few structural chang-
es. Subdivision 3 of section 280.10 amends its predecessor statute with
the inclusion of the word "transfers" which was a broad oversight in
previous drafting. Subdivision 5 of section 280.10 is amended to remove
a troublesome element involving the proof of training of the by-standing
animal such animal possibly being a "bait animal" which was not trained
to fight.
It is notable that, pursuant to section 160.10 of the Criminal Procedure
Law, the transplant of the misdemeanor portion of animal fighting to the
Penal Law causes this offense to now be a printable offense for law
enforcement (the same can be said for all transplanted agriculture and
markets law misdemeanors). As it currently stands, a violation of
subparagraph (b) of subdivision 3 of section 351 (misdemeanor animal
fighting) is not a printable offense for purposes of Article 160 of the
Criminal Procedure Law, which is another major oversight in the existing
legislative drafting. Finally, as crimes in the Penal Law must be clas-
sified pursuant to Title E, Article 55, the misdemeanor component of
animal fighting, now housed in section 280.05, is designated as a class
A misdemeanor and the felony component of animal fighting, now housed in
section 280.10, is designated as a class D felony. The special fine
schedules, which were previously enacted for animal fighting, are
retained by enacting an authorized dispositions section, contained in
section 60.22 of the Penal Law.
Section 280.20 is introduced to replace various components of sections
353, 355, and 360 of the Agriculture and Markets Law. Subdivision 1
outlines the standard of care to be provided by an owner, possessor,
custodian, or caregiver of an animal. The vague term "sustenance," as it
appeared in section 353 of the Agriculture and Markets Law, with the
un-codified case law definition on that term (i.e. "food, drink, veteri-
nary care, or shelter adequate to maintain the animal's health and
comfort"), provided in a litany of cases that include, but is not limit-
ed to People v. Richardson, 15 Misc. 311 138A (App. Term 9th & 10th Jud.
Dist. 2007) and People v. Mahoney, 9 Misc.3d 101 (App. Term 9th & 10th
Jud. Dist. 2008). Apart from codification, the terms "food" and "drink"
are replaced by the more modem concepts of "nutrition" and "hydration."
The former presence of "necessary" in section 353 of the agriculture and
markets law (i.e. "necessary sustenance"), is replaced with the
expanded provision of adequacy. The adequacy of all four elements -
nutrition, hydration, veterinary care, and shelter - is required.
Subdivision 2 is based upon section 355 of the Agriculture and Markets
Law, except that duplicative language is dropped after the first clause
regarding abandonment, "Abandons" is defined in the revised subdivision
(9) of section 280.00.
Subdivision 3 outlines the standard of care to be applied to animals in
general, regardless of personal connection, and pulls heavily on the
enhanced definition of "cruelty" as it appears in subdivision 2 of the
proposed section 280.00. It is a successor-clause to the existing final
clause of section 353 of the agriculture and markets law. The term
"willfully," however, was relaxed to "knowingly," which more clearly
comports with the expansion of the term "cruelty," both as currently
defined and under the proposed definition.
Subdivision 4 is based on section 360 of the Agriculture and Markets
Law, with structural changes for clarity and a mental intent to injure
added.
Section 280.25 is introduced to replace section 353 -a of the Agricul-
ture and Markets Law. It differs from section 353-a of the Agriculture
and Markets Law in that it enhances the classification and punishment on
the proscribed conduct a violation of section 280.25 is a class D felo-
ny, whereas a violation of section 353-a of the Agriculture and Markets
Law is an unclassified felony with a limited sentencing range (a
so-called "E Minus" felony). The section is re-titled to match its coun-
terpart, section 280.20. The definition of the term "aggravated cruel-
ty," as it appears in section 280.25, appears in section 280.00, and it
amended to split acts of torture from acts of cruelty. The practical
effect is negligible as both definitions remain under the force of the
statute.
Subdivisions 1 and 2 are based upon language in subdivision 1 of section
353-a of the Agriculture and Markets Law, however, they are worded more
akin to assault and homicide statutes elsewhere in the penal law. Subdi-
vision 3 of section 280.25 proposes a sanction for acts of "aggravated
cruelty" and "torture" committed against any animal and not just
"companion animals" which is long overdue and based upon the sentiment
that this law should be meant to focus on the extremely disturbing
conduct of an individual and not the human emotion or affection towards
the affected animal. Whether the individual sadistically tortured a wild
turtle or a pet turtle, the criminal sanction on that type of behavior
should be the same. Subdivision 4 is based upon provisions found in the
existing section 360 of the Agriculture and Markets Law. Subdivision 5
is an additional sanction for repeat offenders of section 2130.20,
modeled after statutory language which appears elsewhere in the Penal
Law.
Section 280.30 is based loosely on the existing section 361 of the Agri-
culture and Markets Law. The new statute is re-titled for clarity and
serves to enhance the penalty for interference with competitive or
exhibited animals. The term "domestic," which had no definition, was
removed as its inclusion had de minimis practicality or legal signif-
icance.
Section 280.35 is introduced to subsume and rectify the constitutional
problems with the existing section 362 of the Agriculture and Markets
Law, The existing section 362 of the Agriculture and Markets Law, as
written, effectively makes littering a misdemeanor, has an incorrectly-
positioned mans rea, and is not often used. Section 280.35 incorporates
certain language from subdivision 7 of section 240.20 of the Penal Law
to adjust for the mans rea of the statute. It also more appropriately
categorizes the offense as a violation, which is intended play a crucial
role in any plea bargaining of animal offenses and serve as a lesser-in-
cluded offense of the various provisions of Article 280. Subdivision 1
acts as a "catch-all" provision that bridges the gap between non-culpa-
bility and conduct which violates section 280.20. Subdivision 2 incor-
porates language from section 362 of the Agriculture and Markets Law,
but clarifies the mens rea, obviating constitutional concerns. As a
violation-level offense, a perpetrator could be subjected to fifteen
days incarceration, in addition to other sentencing possibilities, the
most notable of which are the special sentencing provisions in the
proposed section 380 of the Agriculture and Markets Law, discussed
above.
Sections 280.40, 280.45, and 280.50 are introduced to allow prosecution
in the event of unlawful restraint or taking of an animal. Currently,
the only other statutes designed to cover this type of conduct are the
larceny provisions contained in Article 155 of the Penal Law. As society
is moving away from treating pets as chattel or property, statutes need
to adjust for the humanistic approach to prosecution. These sections
must be read in conjunction with the definitions of "restrains" and
"abducts," which are listed in the proposed section 280.00. Section
280.40 is based upon language found in section 135.05 of the Penal Law.
Section 280.45 is based upon language found in section 135.20 of the
Penal Law. Section 280.50 is based upon language found in 135.25 of the
Penal Law. The classification of these crimes, as proposed, would great-
ly enhance the penalty for such conduct. For example, currently, an
individual who steals another person's adopted non-purebred dog, drives
it to a far away location, and leaves it there to die, could only be
charged with petit larceny, in violation of section 155.25 of the Penal
Law, and Abandonment of Animals, in violation of section 355 of the
Agriculture and Markets Law. Both of those crimes are class A misdemea-
nors. The proposed section 280.50 would potentially make the same
conduct punishable as a class D felony.
Section 280.55 contains a presumption applicable to prosecutions of
sections 280.40, 280.45; and 280.50.
Sections 280.60 and 280.65 are verbatim reproductions of the current
sections 353-b and 353-d of the Agriculture and Markets Law,respec-
tively.
Section 280.70 is a verbatim reproduction of the current section 367 of
the Agriculture and Markets Law.
Section 280.75 is a cross-referencing tool to the evidentiary, disposi-
tion, and care provisions which appear in various sections of the Agri-
culture and Markets Law.
Section 280.80 is an important cross-referencing tool to ensure that the
courts are empowered to sentence in accordance with the special needs of
an animal cruelty prosecution.
Section ten of this bill contains a proposed section 60.22 of the Penal
Law, which is the vehicle by which the special fine sentencing
provisions enacted for animal fighting, under the current section 351 of
the Agriculture and Markets Law, survive the transfer to the Penal Law.
Section eleven modifies paragraph (c) of subdivision 1 of section 70.02
of the Penal Law to incorporate select provisions of the proposed
"animal cruelty in the first degree," in violation of proposed section
280.25, into the list of violent felony offenses. The excluded
provisions are the aggregation offense for twice violating animal cruel-
ty in the second degree (subdivision 5) and the aggravating-factor
poisoning offense (subdivision 4).
Section twelve of this bill modifies section 195.06 of the Penal Law to
enhance the offense classification and penalty for killing or injuring a
police animal. A violation of this section would now be a class D felo-
ny, which comports this statute to the level of offense of Animal Cruel-
ty in the First Degree, under the proposed section 280.25 of the Penal
Law.
Section thirteen of this bill modifies section 195.11 of the Penal Law
to enhance the offense classification and penalty for harming an animal
trained to aid a person with a disability in the second degree. A
violation of this section would now be a class A misdemeanor, which
comports this statute to the level of offense of Animal Cruelty in the
Second Degree, under the proposed section 280.20 of the Penal Law (or
the existing offense of Overdriving, torturing and injuring animals;
failure to provide proper sustenance, under section 353 of the Agricul-
ture and Markets Law),
Section fourteen of this bill modifies section 195.12 of the Penal Law
to enhance the offense classification and penalty for harming and
animals trained to aid a person with a disability in the first degree. A
violation of this section would now be a class E felony.
Section fifteen of this bill modifies. subdivision 2 of section 265.01
of the Penal Law in two ways. Firstly, it converts it to gender neutral-
ity. Secondly, it adds animals as a protected class against unlawful
weapon use. This will be particularly helpful for law enforcement where
there is clear evidence of a beating with an instrument but, due to
unfamiliarity with field examinations of animals for injury, a charge
can be made upon implementation alone.
JUSTIFICATION:
This bill markedly improves the accessibility and comprehensibility of
animal crime statutes, thereby promoting enforcement of this category of
crime. The bill endeavors to take patrol-scenario crimes, faced by
municipal law enforcement, and structure them alongside the bulk of
criminal law. By placing animal crime shoulder-to-shoulder with other
categories of crime in the Penal Law, there will be a streamlining of
criminal procedure, training, legal terminology, and judicial philoso-
phy.
As the law currently stands, commercial, industrial, and patrol-scenario
offenses are housed together in a body of law that has proven to be
inaccessible by police. Not only is a patrol officer unlikely to have a
copy of the Agriculture and Markets Law in their radio car, but the
precinct desk officer is also unlikely to have a copy at headquarters.
Furthermore, police academies primarily focus training on Penal Law and
Vehicle and Traffic Law provisions, without any education or training
whatsoever on Agriculture and Markets Law provisions.
While there may be crimes housed outside the Penal Law - for example,
tax crimes there is seldom, if ever, a patrol dispatch requiring urgent
response and action on a violation of the tax law. Animal crimes occur
in the field and often require emergency response.
An ancillary benefit to that main objective will be a harmonizing of
this crime with others as far as the applicability of the criminal
procedure law. Matters such as search warrants, fingerprinting,
collection of DNA, recordkeeping, court surcharges, and other procedural
aspects of law enforcement become applicable.
Beyond the mere transplant, however, this bill modernizes statutory
language and structure to more aptly match its sister crimes. Within the
bill text, there is heavy borrowing from terminology and format from
other areas of Penal Law. This was done not only for clarity, familiar-
ity, and comprehensibility, but also so that case interpretations of
terminology and structure become immediately applicable.
Offenses have been re-titled for clarity and order of precedence.
Offenses have been restructured into manageable subdivisions. Offenses
have been given appropriate and clear mental states If there were a
prevailing case law interpretation of a term, the term was codified into
the statute itself in order to obviate time-wasting motion practice over
the issue.
In short, the average police officer will now be able to find the law,
read the law, understand the law, and apply the law all while standing
at a crime scene in the middle of the night. Prosecutors and defense
attorneys will spend markedly less time in needless motion practice over
the definition of obsolete terms or general applicability of passages.
Judges will be better equipped to dispense justice on accused individ-
uals. Finally, the average member of the public will be better apprised
of the standards that apply to the treatment of animals.
LEGISLATIVE HISTORY:
2012: Codes Committee (S.6730A/A. 9917A)
FISCAL IMPLICATIONS:
Penal Law surcharges become applicable to animal crimes offenses, poten-
tially enhancing state revenue.
EFFECTIVE DATE:
This act will take effect on the first of November next succeeding the
date on which it shall become a law.
