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.