S00445 Summary:

BILL NOS00445A
 
SAME ASSAME AS A01107
 
SPONSORGALLIVAN
 
COSPNSR
 
MLTSPNSR
 
Amd S373, Ag & Mkts L
 
Relates to the seizure of animals.
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S00445 Actions:

BILL NOS00445A
 
01/07/2015REFERRED TO AGRICULTURE
01/14/2015AMEND AND RECOMMIT TO AGRICULTURE
01/14/2015PRINT NUMBER 445A
01/06/2016REFERRED TO AGRICULTURE
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S00445 Memo:

Memo not available
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S00445 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         445--A
 
                               2015-2016 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 7, 2015
                                       ___________
 
        Introduced  by Sen. GALLIVAN -- read twice and ordered printed, and when
          printed to be committed to the Committee on Agriculture  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
 
        AN  ACT  to  amend  the  agriculture and markets law, in relation to the
          seizure of animals
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 373 of the agriculture and markets law, as added by
     2  chapter  545  of the laws of 1971, subdivisions 1, 2 and 3 as amended by
     3  chapter 79 of the laws of 1997, subdivision 1-a as added by chapter  811
     4  of the laws of 1981, subdivision 5 as amended by section 23 and subpara-
     5  graph 2 of paragraph b of subdivision 6 as amended by section 24 of part
     6  T  of chapter 59 of the laws of 2010, subdivisions 6 and 7 as amended by
     7  chapter 256 of the laws of 1997 and paragraph a and  subparagraph  1  of
     8  paragraph  b  of  subdivision 6 as amended by chapter 531 of the laws of
     9  2013, is amended to read as follows:
    10    § 373. Seizure  of  animals  lost,  strayed,  homeless,  abandoned  or
    11  improperly  confined  or kept. 1. Any police officer or agent or officer
    12  of the American Society for the Prevention of Cruelty to Animals or  any
    13  duly  incorporated society for the prevention of cruelty to animals, may
    14  lawfully take possession of any lost,  strayed,  homeless  or  abandoned
    15  animal found in any street, road or other public place.
    16    1-a.  Any  police officer in Lewis county may lawfully take possession
    17  of any lost, strayed, homeless or abandoned domestic animal, as  defined
    18  in  section one hundred eight of this chapter, found in any street, road
    19  or other public place.
    20    2. Any such police officer or agent or officer may also lawfully  take
    21  possession  of  any  animal in or upon any premises other than a street,
    22  road or other public place, which (a) for more  than  twelve  successive
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01365-04-5

        S. 445--A                           2
 
     1  hours  has  been confined or kept in a crowded or unhealthy condition or
     2  in unhealthful or unsanitary surroundings or (b) has not  been  properly
     3  cared  for,  including,  but  not  limited to the provision of necessary
     4  shelter,  veterinary, farrier and other species- or breed-specific care;
     5  or [without] (c) for more than twelve  successive  hours  has  not  been
     6  provided  with  necessary  sustenance,  food  or  drink, provided that a
     7  complaint stating just and reasonable grounds  is  made  under  oath  or
     8  affirmation  to  any magistrate authorized to issue warrants in criminal
     9  cases, and that such warrant authorizing entry and search is issued  and
    10  delivered by such magistrate; if just and reasonable cause is shown, the
    11  magistrate  shall  immediately issue such warrant.  Further, the warrant
    12  shall provide that, where any animal is seized from a person based  upon
    13  noncompliance  with the standards of care set forth in this subdivision,
    14  the police officer, agent or officer may take possession  of  any  other
    15  animal or animals in the custody or control of such person from whom the
    16  animal  is  seized.  The person from whom animals are seized pursuant to
    17  this subdivision may petition the  court,  upon  seizure,  or  within  a
    18  reasonable  time  thereafter,  for  a  return  of  the  seized animal or
    19  animals. A hearing on such petition shall be conducted within ten  busi-
    20  ness  days  of  such  petition.  The petitioner shall have the burden of
    21  proving by a preponderance of the evidence that there  was  no  probable
    22  cause  for the seizure of such animal or animals seized pursuant to this
    23  subdivision. No animal or animals seized pursuant  to  this  subdivision
    24  may  be  returned to the owner or person from whom the animal or animals
    25  were seized until such hearing has been conducted.
    26    3. Any such police officer or agent or officer may also lawfully  take
    27  possession  of  any  unwanted  animal  from  the person in possession or
    28  custody thereof.
    29    4. When any person arrested is, at the time of such arrest, in  charge
    30  of  any  animal or of any vehicle drawn by or containing any animal, any
    31  agent or officer of said society or societies or any police officer  may
    32  take  charge  of  such  animal and of such vehicle and its contents, and
    33  deposit the same in a safe place or custody, or deliver  the  same  into
    34  the  possession  of the police or sheriff of the county or place wherein
    35  such arrest was made, who shall thereupon assume  the  custody  thereof;
    36  and  all  necessary  expenses incurred in taking charge of such property
    37  shall be a charge thereon.
    38    5. Nothing herein contained  shall  restrict  the  rights  and  powers
    39  derived  from  section one hundred seventeen of this chapter relating to
    40  seizure of unlicensed dogs and the disposition to be made of animals  so
    41  seized or taken, nor those derived from any other general or special law
    42  relating  to  the seizure or other taking of dogs and other animals by a
    43  society for the prevention of cruelty to animals.
    44    6. a. If any animal is seized and impounded pursuant to the provisions
    45  of this section, section three hundred fifty-three-d of this article  or
    46  section  three hundred seventy-five of this article for any violation of
    47  this article, upon arraignment of charges, or within a  reasonable  time
    48  thereafter,  for one or more of the animals seized the duly incorporated
    49  society for the prevention of cruelty to animals, humane society, pound,
    50  animal shelter or any authorized agents thereof, hereinafter referred to
    51  for the purposes of this section as the "impounding  organization",  may
    52  file  a  petition with the court requesting that the person from whom an
    53  animal is seized or the owner of the animal be ordered to post a securi-
    54  ty. The district attorney prosecuting the charges may  file  and  obtain
    55  the  requested  relief  on  behalf  of  the  impounding  organization if
    56  requested to do so by the impounding organization.   The security  shall

        S. 445--A                           3
 
     1  be in an amount sufficient to secure payment for all reasonable expenses
     2  incurred  since  the  date of seizure and expected to be incurred by the
     3  impounding organization in caring and providing for [the animal] all the
     4  animals seized pending disposition of the charges for one or more of the
     5  animals  seized.  Reasonable  expenses shall include, but not be limited
     6  to, estimated medical care and boarding of the seized animal or  animals
     7  for  at  least thirty days. The amount of the security, if any, shall be
     8  determined by the court after taking into consideration all of the facts
     9  and circumstances of the case including, but not limited to  the  recom-
    10  mendation  of the impounding organization having custody and care of the
    11  seized animal or animals and the  cost  of  caring  for  the  animal  or
    12  animals.  If a security has been posted in accordance with this section,
    13  the impounding organization  may  draw  from  the  security  the  actual
    14  reasonable  costs  to be incurred by such organization in caring for the
    15  seized animal or animals.
    16    b. (1) Upon receipt of a petition pursuant  to  paragraph  a  of  this
    17  subdivision  the  court  shall  set  a  hearing  on  the  petition to be
    18  conducted within ten business days of the filing of such  petition.  The
    19  petitioner  shall  serve  a true copy of the petition upon the defendant
    20  and the district attorney if the district attorney  has  not  filed  the
    21  petition  on behalf of the petitioner. The petitioner shall also serve a
    22  true copy of the petition on any interested person. For purposes of this
    23  subdivision, interested person shall mean  an  individual,  partnership,
    24  firm,  joint  stock  company, corporation, association, trust, estate or
    25  other legal entity who the court determines may have a pecuniary  inter-
    26  est  in  the animal which is the subject of the petition. The petitioner
    27  or the district attorney acting on behalf of the petitioner, shall  have
    28  the burden of proving by a preponderance of the evidence that the person
    29  from  whom  the  animal was seized violated a provision of this article.
    30  The court may waive for good cause shown the posting of security.
    31    (2) If the court orders the posting of a security, the security  shall
    32  be  posted  with the clerk of the court within five business days of the
    33  hearing provided for in subparagraph one of this  paragraph.  The  court
    34  may  order  the  immediate forfeiture of the seized animal or animals to
    35  the impounding organization if the person ordered to post  the  security
    36  fails  to  do  so.  Any  animal  forfeited  shall  be made available for
    37  adoption or euthanized subject to subdivision  seven-a  of  section  one
    38  hundred  seventeen of this chapter or section three hundred seventy-four
    39  of this article.
    40    (3) In the case of an animal other than a companion animal or pet,  if
    41  a  person  ordered  to  post  security fails to do so, the court may, in
    42  addition to the forfeiture  to  a  duly  incorporated  society  for  the
    43  prevention  of cruelty to animals, humane society, pound, animal shelter
    44  or any authorized agents thereof, and subject  to  the  restrictions  of
    45  sections  three  hundred fifty-four, three hundred fifty-seven and three
    46  hundred seventy-four of this article, order the  animal  which  was  the
    47  basis  of  the  order  to  be sold, provided that all interested persons
    48  shall first be provided the opportunity to redeem their interest in  the
    49  animal  and to purchase the interest of the person ordered to post secu-
    50  rity, subject to such conditions  as  the  court  deems  appropriate  to
    51  assure  proper care and treatment of the animal. The court may reimburse
    52  the person ordered to post security and any interested persons any money
    53  earned by the sale of the animal  less  any  costs  including,  but  not
    54  limited  to, veterinary and custodial care. Any animal determined by the
    55  court to be maimed, diseased, disabled or infirm so as to be  unfit  for
    56  sale  or  any  useful  purpose shall be forfeited to a duly incorporated

        S. 445--A                           4
 
     1  society for the prevention of cruelty to animals or a duly  incorporated
     2  humane  society  or  authorized  agents  thereof,  and  be available for
     3  adoption or shall be euthanized subject to section three hundred  seven-
     4  ty-four of this article.
     5    (4) Nothing in this section shall be construed to limit or restrict in
     6  any  way the rights of a secured party having a security interest in any
     7  animal described in this section. This section expressly does not impair
     8  or subordinate the rights of such a secured  lender  having  a  security
     9  interest in the animal or in the proceeds from the sale of such animal.
    10    c.  In no event shall the security prevent the impounding organization
    11  having custody and care of the animal or animals from disposing  of  the
    12  animal or animals pursuant to section three hundred seventy-four of this
    13  article  prior to the expiration of the thirty day period covered by the
    14  security if the court makes a determination of the charges  against  the
    15  person from whom the animal or animals was or were seized prior thereto.
    16  Upon  receipt  of a petition from the impounding organization, the court
    17  may order the person from whom the animal or animals was or were  seized
    18  or  the  owner  of  the animal or animals to post an additional security
    19  with the clerk of the court to secure payment of reasonable expenses for
    20  an additional period of time pending a determination by the court of the
    21  charges against the person from whom the animal or animals was  or  were
    22  seized.  The person who posted the security [shall be entitled to a] may
    23  make  application  to the court for a refund of the security in whole or
    24  part for any expenses not incurred by such impounding organization  upon
    25  adjudication of the charges. The person who posted the security shall be
    26  entitled to a [full] refund of the security, [including reimbursement by
    27  the  impounding  organization  of  any amount allowed by the court to be
    28  expended] solely to the extent that the reasonable expenses paid  there-
    29  from  by the impounding organization exceed the reasonable expenses that
    30  would have been incurred had the seizure not occurred, and the return of
    31  the animal or animals seized and impounded upon acquittal  or  dismissal
    32  of  [the]  all  charges, except (a) where the dismissal is based upon an
    33  adjournment in contemplation of dismissal pursuant to section 215.30  of
    34  the  criminal  procedure  law  or  (b)  where the person is charged with
    35  violations of this article concerning more than one animal, and is found
    36  guilty, by plea or otherwise, of any violation of this article regarding
    37  any animal. The court order  directing  such  refund  and  reimbursement
    38  shall  provide  for payment to be made within a reasonable time from the
    39  acquittal or dismissal of charges.
    40    7. Notwithstanding any other provision of this section to the  contra-
    41  ry,  the  court  may  order  a person charged with any violation of this
    42  article to provide necessary food,  water,  shelter  and  care  for  any
    43  animal  which  is  the  basis  of the charge, without the removal of the
    44  animal from its existing location, until the charges against the  person
    45  are  adjudicated.   [Until] Upon application to the court, until a final
    46  determination of the charges is made, any law enforcement officer, offi-
    47  cer of a duly incorporated society for  the  prevention  of  cruelty  to
    48  animals,  or  its  authorized  agents,  [may] shall be authorized [by an
    49  order of the court] to make [regular] sporadic,  unannounced  visits  to
    50  where  the  animal is being kept to ascertain if the animal is receiving
    51  necessary [food, water, shelter and] care in accordance with subdivision
    52  two of this section. Nothing shall prevent any law enforcement  officer,
    53  officer  of a duly incorporated society for the prevention of cruelty to
    54  animals, or its authorized agents, from applying for a warrant  pursuant
    55  to  this  section  to  seize any animal being held by the person charged
    56  pending the adjudication of the charges if it  is  determined  that  the

        S. 445--A                           5
 
     1  animal  is  not receiving [the] necessary [food, water, shelter or] care
     2  in accordance with subdivision two of  this  section.  Nothing  in  this
     3  subdivision  shall  be interpreted as permitting the return of an animal
     4  seized  pursuant to subdivision two of this section without a hearing as
     5  required under such subdivision.
     6    § 2. This act shall take effect immediately.
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