Public Hearing Cruelty to Companion Animals

1 BEFORE THE NEW YORK STATE SENATE

STANDING COMMITTEE ON AGRICULTURE 2 -------------------------------------------------- 3 PUBLIC HEARING 4 CRUELTY TO COMPANION ANIMALS 5

----------------------------------------------------- 6

Utica State Office Building 7 207 Genesee Street - 1st Floor

Utica, New York 13501 8

May 9, 2012 9 2:30 p.m. to - 5:30 p.m. 10

PRESIDING:11

Senator Patricia A. Ritchie 12 Chair 13 14 SENATE MEMBERS PRESENT: 15 Senator Joseph A. Griffo 16 Senator David J. Valesky 17 18 ALSO IN ATTENDANCE: 19 Todd Kusnierz

Director 20 Standing Committee on Agriculture 21 22 23 24 25 1 SPEAKERS: PAGE QUESTIONS 2 Jed Painter 11 19

ADA, Animal Crimes Unit 3 Nassau County DA's Office 4 Scott D. McNamara 34 42

District Attorney 5 Oneida County DA's Office 6 Mark Williams 43 47

Chief of Police 7 Utica, New York 8 Bill Ketzer 54 69

Senior State Legislative Director 9 Northeastern Region of ASPCA 10 11 ---oOo--- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 SENATOR RITCHIE: Welcome. Good afternoon, 2 everyone. 3 I would like to open the public hearing of 4 the New York State Agriculture Committee on the 5 issue of cruelty to companion animals, by thanking 6 everyone for joining us today. 7 And I'm joined by my colleague on the 8 Agriculture Committee, Senator Valesky; 9 And, also, Senator Griffo, whose home 10 district this is. And I would like to thank 11 Senator Griffo for inviting me today to deal with 12 this important issue. 13 Due to time constraints, today's testimony is 14 by invitation only. But, I would like to tell 15 anyone in the audience, if you're interested in 16 submitting comments, suggestions, please feel free 17 to submit your written testimony to my office, 18 either in Watertown or in Albany. And we certainly 19 would appreciate it, and we'll check each submitted 20 testimony in, and we will respond, and let you know 21 the progress we're making. 22 So, thank you for coming today. 23 Today we will hear testimony from law 24 enforcement and from the American Society of -- for 25 the Prevention of Cruelty to Animals, "ASPCA," and 1 what New York can do to strengthen the laws, and to 2 help law enforcement combat the issues of cruelty to 3 animals. 4 I know many of you in the audience here, this 5 is an issue, when it comes up, that it is near and 6 dear to your heart. Something that is very 7 emotional. So, I appreciate each and every one of 8 you for taking the time out of your schedule today 9 to come down and listen to the testimony. 10 Many of the animal-cruelty bills, they 11 actually end up in the Agricultural Committee, and 12 from that Committee, many are forwarded on to the 13 Codes Committee. 14 So, it's important that each bill that comes 15 in, we have the opportunity to discuss them, and to 16 forward them on to the Committee for the Committee's 17 feedback. 18 Because it deals with the Ag and Markets Law, 19 we did invite the Commissioner, and his staff was 20 unavailable today. 21 This year we have had a number of bills, just 22 recently over the last two weeks, who have been -- 23 that have been forwarded through the Committee. 24 I have with me my Committee director from 25 Albany, Todd Kusnierz, and he is just going to read, 1 briefly, the four bills that we have recently 2 passed, and some of the details to go along with 3 that. 4 TODD KUSNIERZ: Thank you very much, Senator. 5 The first bill that we reported out of the 6 Agriculture Committee this year was a measure 7 sponsored by Senator Ritchie, Senate Bill 6774. 8 It's also carried in the State Assembly by 9 Assembly Member John McEneny. 10 And this is -- measure essentially specifies 11 that any person who intentionally owns -- 12 (no audio) 13 -- sells -- 14 (no audio) 15 -- manufactures animal -- 16 (no audio) 17 -- with the intent to otherwise promote or 18 facilitate animal fighting is guilty of a Class B 19 misdemeanor, which the fines are also increased with 20 this piece of legislation. 21 And just last week, in the 22 Senate Ag Committee, there are four other bills that 23 were reported out. And I'll just briefly touch on 24 those. 25 The first one is Senate Bill 5083, sponsored 1 by Senator Ball. It's being carried in the Assembly 2 by Assembly Member Tedisco. 3 And this measure specifies that a person is 4 guilty of aggravated cruelty to animals when, in the 5 course of the commission of a felony, or in the 6 immediate flight therefrom, such person causes 7 physical injury or death to a companion animal. 8 Also, another measure sponsored by 9 Senator Ball, which was reported out of Committee, 10 is Senate Bill 5084, also carried by 11 Assembly Member Tedisco in the Assembly. 12 And this measure is supported by 13 New York State Bar Association. 14 This measure prohibits a person convicted of 15 aggravated cruelty to animals from owning or 16 possessing a companion animal, unless authorized by 17 a Court order after an appropriate psychiatric or 18 psychological testing which indicates that there's 19 clear and convincing evidence that the person is 20 capable and has sound mental capacity and ability to 21 own and properly care for that animal in a humane 22 manner. 23 Another measure that was reported out of 24 Committee last week, Senate Bill 5702-A, by 25 Senator Klein, that's being carried in the Assembly 1 by Assembly Member Paulin. 2 This measure prohibits the use of cage or box 3 dryer at a companion-animal grooming facility, which 4 contains a heating element, with the heating element 5 turned on for the purpose of drying or aiding in the 6 drying of a companion animal. 7 And the final bill, which I believe the 8 Nassau District Attorney's Office may touch on this 9 afternoon, is Senate Bill 6730, which is sponsored 10 by Senator Fuschillo. It's being carried in the 11 Assembly by Assembly Member Rosenthal. 12 And, essentially, it's a very long bill, but 13 it clarifies, modernizes, and restructures the 14 animal-cruelty laws -- 15 (no audio) 16 -- certain sections of the Ag and Markets Law 17 into the penal law. And, it does a host of things: 18 redefining terms, increasing penalties. 19 And I think we'll let the District Attorney's 20 Office maybe touch on that a little bit more later. 21 It's a measure that was reported out of the 22 Ag Committee. New York Farm Bureau poses it in its 23 current form, but we have been working with the 24 sponsor on that measure. And the sponsor is working 25 to address many of the concerns that Farm Bureau has 1 on that. 2 So, those are the bills for this session so 3 far. 4 SENATOR RITCHIE: Thank you, Todd. 5 One of the largest categories of animal-abuse 6 classification is: Neglect by an owner. 7 And I'm actually here today by invitation 8 from Senator Griffo, because of the horrific case 9 that happened -- 10 (no audio) 11 -- Senator Griffo, I thank you for the 12 invitation. Appreciate the opportunity the get 13 feedback from law enforcement so we can put in place 14 a law on the books, to help you to do your job. 15 Senator Valesky, did you want to make any 16 comments before we hear testimony? 17 SENATOR VALESKY: Sure, just briefly. 18 As you have all heard, the Senate Agriculture 19 Committee, under the outstanding leadership of 20 Senator Ritchie, has already been very active in the 21 area of animal abuse -- 22 (no audio) 23 -- that we have taken in the Committee, and 24 hopefully we'll be taking at the level of the entire 25 Senate and the Assembly -- 1 (no audio) 2 -- that you may have to come forward with, so 3 that Senator Ritchie and I and others on the 4 Committee can make sure that we have the toughest 5 laws on the books in New York State that we 6 certainly ought to have. 7 So, Senator, thank you for being here. 8 And, certainly, Senator Griffo, it's always 9 great to be with you in your Senate district. 10 Thank you. 11 SENATOR RITCHIE: Senator Griffo, do you want 12 to elaborate on that tragic case, and your 13 perspective on this important issue? 14 Once again, thank you for bringing it to the 15 forefront, and inviting me here today. 16 SENATOR GRIFFO: (No audio) -- 17 Chairwoman Senator Ritchie. 18 I want to first thank both of my colleagues 19 here, because I'm fortunate that I have the 20 opportunity to serve with both of my colleagues, and 21 share coverage with them in, both, the north country 22 with Senator Ritchie, and here in the central 23 Mohawk Valley Region with Senator Valesky. 24 So, I'm very fortunate to have two colleagues 25 that -- 1 (no audio) 2 -- our respective regions. 3 I want to also commend Senator Ritchie, as 4 Senator Valesky did, for her exceptional leadership. 5 And she has done an extraordinary job during 6 her short tenure as Chair of the 7 Agriculture Committee. 8 We appreciate your work and efforts. 9 And her responsiveness, too. 10 As Senator Ritchie indicated, I was not only 11 alarmed, but disgusted, by the acts of cruelty that 12 we witnessed, unfortunately, in our area here. 13 But it doesn't only take place here, it takes 14 place across the state. 15 So anytime -- and I approached 16 Senator Ritchie, with support from Senator Valesky 17 and our other colleagues, with the idea of holding a 18 public hearing. 19 And I want to emphasize the significance of 20 holding a Standing Committee public hearing of the 21 Senate. It shows that we attach -- 22 (no audio) 23 -- in dealing with problems as we have 24 witnessed, not only here in the central New York 25 area, but across the state. 1 You know, I look at this, and anyone who 2 treats a living thing with this callus disregard and 3 downright cruelty, really disgusts me. And it is 4 need for us to call attention, and to put in place 5 appropriate measures that may be necessary, in order 6 to help law enforcement and the prosecutors do their 7 job, and also to get the perspective from many of 8 you who are involved in animal advocacy. 9 So, Senator Ritchie, again, thank you for 10 your willingness to put this hearing together so we 11 could hear the oral testimony that we will hear 12 today, but, also, anyone here can submit written 13 testimony, so as we in Albany begin to deliberate, 14 and determine the best course of action to deal with 15 the subject matter, we will have input from the 16 community, across the state. 17 So, I thank you again for the opportunity to 18 have -- to host you here today. And, again, 19 appreciate the significance and importance that 20 we're placing on the subject matter by your interest 21 in holding the hearing. 22 SENATOR RITCHIE: Thank you, Senator. 23 If we could have the first two speakers come 24 up to the table: 25 Jed Painter, Assistant District Attorney of 1 the Animal Crimes Unit, Nassau County DA's Office. 2 And thank you for making the long trip up. 3 And, Scott McNamara, Oneida County District 4 Attorney. 5 And, Chief, do you want to make testimony 6 today too? Do you have any comments? 7 CHIEF MARK WILLIAMS: Yes. 8 SENATOR RITCHIE: I'll have you come right up 9 then, too, please. Thank you. 10 And, Jed, since you had the farthest ride, 11 we'll let you open up here. 12 ADA JED PAINTER: Thank you very much, 13 everybody. 14 Thank you very much for the invitation. 15 It was a pleasure to drive that far to be 16 here, and I'm really happy to be on this -- and 17 privileged to be on this panel, to the left and 18 right of me. 19 My name is Jed Painter. I am chief of the 20 Animal Crimes Unit for the Nassau County District 21 Attorney's Office. 22 A little bit about Nassau County: 23 It's population is approximately 1.4 million 24 people. 25 It is a metropolitan area. Prosecutor's 1 Office borders Queens, and so we get a lot of 2 overflow of dog-fighting activity. 3 We also get a little more rural -- a little 4 bit more rural, to the east, where we border 5 Suffolk County. 6 So, we do have a variety of animal crime to 7 deal with. 8 And like all metropolitan area district 9 attorney's offices, or larger district attorney's 10 offices, we're subdivided into bureaus and units: 11 sex crimes, vehicular crimes, environmental crimes, 12 tech crimes. 13 And at some point along the way, that point 14 being 2010 specifically, at the beginning of it, 15 DA Rice decided that animal crime was a legitimate 16 category of crime, which it absolutely is. 17 And as law enforcement strategy, decided to 18 dedicate a unit to it. 19 And at the time, it did make waves, but I 20 think -- I think it's common sense. I think it's 21 logical. 22 You have an entire category of crime. Why 23 not, if you're subdividing into bureaus and units, 24 have an animal crimes unit for specialized 25 expertise. 1 Now the Animal Crimes Unit has: Myself, as 2 chief. There's four ADAs who staff it. There's 3 in-house detectives who staff it. There's support 4 staff. 5 There's a 24-hour hotline and Internet 6 complaint system that's manned, and it goes right to 7 a prosecutor. 8 And in addition to that proactive work, we 9 also take whatever municipal law enforcement brings 10 us. 11 So whether it be one of our county police 12 officers or city police officers, or anybody within 13 our county, we'll take and prosecute that as well. 14 I learn a lot more from the cases that we 15 don't make. 16 We've had approximately 1,500 complaints in 17 the last two years. Made about 50 to 60 cases. 18 About 25 percent of those felonies. 19 But, again, it's the constant pop quizzes 20 that come in on the hotline, answered by a 21 prosecutor, and eventually reviewed by myself, 22 that -- that develop the most interesting legal 23 education. 24 And I believe a lot of that -- again, I won't 25 hog all the time by talking about Senate Bill 6730, 1 but a lot of that was -- tried to be incorporated. 2 A lot of the issues were -- tried to be corrected in 3 Senate Bill 6730. 4 Apart from serving as chief of the 5 Animal Crimes Unit, I also work in Public Corruption 6 Bureau, where I investigate political entities and 7 public officials for corruption. 8 It's good to be an investigative bureau like 9 that because I now can avail myself of an 10 investigator grand jury at all times. 11 So, in that, I find that helpful when it 12 comes to investigating complex things, like 13 dog-fighting rings, or other types of enterprise 14 cruelty, of which there's a big problem, if one pays 15 attention. 16 It is interesting, though, and I will put 17 this to the Committee right now, that as much work I 18 could do investigating a dog-fighting ring, and 19 possibly getting a warrant if I know a fight's in 20 progress, and raiding the dog-fighting ring with 21 law-enforcement members, if they find a certain 22 amount of drugs on the table, or one gun that's 23 loaded, all of a sudden, that's the top charge, and 24 not the dog fighting. 25 There's a little bit of a disparity in the 1 ways that the laws are currently structured, that it 2 does make it interesting, to me -- to me, in my 3 opinion -- that the majority of animal cruelty is -- 4 even the highest level, is an unclassified felony. 5 Penal-law provisions make it an E felony, but 6 with the special sentencing caps in place in the 7 Agriculture and Markets Law, it's even a lesser 8 E felony. 9 And I'll give you an example. 10 A standard E felony would be 1 1/3 to 11 4 years. Indeterminate sentence is a max sentence. 12 Aggravated cruelty to animals, 353-A, is a 13 felony, and it could be characterized as a Class E 14 felony; however, there's a special sentencing cap, 15 making it two-years' incarceration. 16 So even there, it's a facade of a penalty. 17 And, again, I think also by housing this 18 category of crime, outside of the Agriculture and 19 Markets Law -- as out of the penal law, in the 20 Agriculture and Markets Law, does seem to 21 disassociate that logical connection that this is a 22 category of crime, just like economic crime, sex 23 crime, or vehicular crime. 24 That takes place in an ideological level, but 25 also by its disassociation with the penal law, it 1 functions on a practical level. 2 Matters such as fingerprinting, are not 3 standardized. In fact, misdemeanor dog fighting is 4 not a printable offense. 5 Pretty much, a lot of misdemeanors that are 6 contained in the Agriculture and Markets Law are not 7 printable. 8 And now with the new legislation that's 9 passed about DNA, none of that's taken. 10 Standard things, like recordkeeping, 11 reporting to the State, reporting convictions to 12 DCJS, all of these things, just by its absence, 13 shoulder-to-shoulder with other laws, are lacking. 14 And, finally, besides that legal aspect, 15 there's another practical aspect that I -- I can't 16 speak for all police departments, but I do know, 17 from slight experience, that it's not very common 18 for an average patrol officer to have a copy of the 19 Agriculture and Markets Law in their glove 20 compartment of the patrol car. 21 And if they find it, and, you know, it's not 22 even common, in my experience, for a desk officer 23 back at the precinct to have one. And then they end 24 up Googling it. 25 And that's a horrible thing, if it's that 1 unavailable and inaccessible. 2 If you're lucky enough to find it, it's text, 3 which began in 1826, I believe, is still very much a 4 nineteenth-century dialect. 5 And after combing through a few pages of, 6 "Am I permitted to justifiably run a horse on a 7 plank road?" or "Sell baby chicks that have been 8 imparted in an artificial color?" after a few combs 9 through that, if they don't -- if the police officer 10 can't find it fast enough to respond to the urgent 11 situation, you might then be -- I completely 12 understand if a warning is given rather than an 13 arrest. It might dissuade actual action on some 14 less urgent, or I'll call it, more "garden variety" 15 situations of neglect. 16 I think that it should be the goal, that laws 17 should be written, that an average police officer on 18 patrol should be able to find the law, understand 19 the law, and apply the law, all in middle of the 20 night at a crime scene, within moments. 21 And I believe, right now, the laws aren't 22 written that way. 23 So, again, my office, District Attorney Rice, 24 and Senator Fuschillo, and Assemblywoman Rosenthal, 25 have put forward this Senate Bill 6730-A, and 9917, 1 and revisions are going as we work out the kinks, 2 but, we put forward this bill for exactly that 3 purpose. 4 And, so, I am happy to take questions on it. 5 And thank you very much for hearing me out. 6 SENATOR RITCHIE: Thank you. 7 You mentioned that there are 8 1,500 complaints. 9 Out of the complaints, how many -- do you 10 know how many individuals were actually 11 prosecuted -- 12 ADA JED PAINTER: Yes, ma'am. 13 SENATOR RITCHIE: -- at the end? 14 ADA JED PAINTER: Yes. In the past -- in 15 2011, we had 23 successful arrests out of, 16 approximately, 600 complaints. 17 Keep in mind that we keep track of all of the 18 data -- we track our database so we are able to 19 cross-check addresses. So, many of those complaints 20 might have been multiple complaints against the same 21 address. 22 And, we allow callers to be anonymous. 23 The virtue of that is, in situations of 24 neglect, we encourage business, so to speak. And we 25 get a lot of business from ex-wives reporting 1 ex-husbands, nephews reporting uncles, and things 2 happening within the household. 3 I think, as anybody can tell you on this 4 panel, that most of animal crime happens in a very 5 constitutionally protected place. It happens behind 6 closed doors, and the victim can't call 911. 7 And getting through that barrier is very 8 difficult. So, we encourage anonymous complaints. 9 But that doesn't necessarily mean they're 10 going to take it to next level, and testify. But 11 it's better that we know about it, and can 12 cross-check it, and possibly, even, if the law 13 allows us to intervene or check it out for 14 ourselves, our detectives' eyes or municipal law 15 enforcements' eyes can't take the place of the 16 witness's eyes, as long as we're ready and dedicated 17 to do surveillance. 18 Or, if it's a matter of neglected animal in 19 the backyard that's in plain view, then we just 20 substitute ourselves for the witness. We take them 21 out of the equation, and we proceed that way. 22 So there is going to be a huge gap between 23 the amount of complaints that we get and the amount 24 of arrests that we can make. That's just the name 25 of the game with the victim that can't talk. 1 I can't tell you how many times I have 2 actually almost gotten to the point of craziness, 3 where I've actually wanted to talk to the dog, and 4 see, you know: Who did this to you? 5 [Laughter.] 6 ADA JED PAINTER: Who tied you to the stop 7 sign? 8 And, where did you get that scar? 9 And, how long has this person had you? 10 And, is this the person who did it? 11 Because there's always deniability when the 12 victim can't speak. 13 And it's simple things that you take for 14 granted. 15 You know, I wasn't always an animal-crimes 16 prosecutor. I came up through the ranks like every 17 other prosecutor, and I prosecuted assaults, and 18 things like that. 19 You take it for granted, that if somebody's 20 assaulted, they can point out their accuser in 21 court. 22 You're never going to have that luxury with 23 the animal crimes, so you have to fill in the gaps 24 from around. 25 SENATOR RITCHIE: Do you see that as an 1 increase, the 1,500 complaints? 2 Is that an increase in recent years, or -- 3 ADA JED PAINTER: My personal belief -- and 4 I'm not a statistician. 5 My personal belief is, that people are just 6 becoming more attuned to this as an issue. 7 I can't tell if you there's been a rise in 8 cruelty, but I can tell you there's definitely been 9 a rise in the level of awareness. 10 SENATOR RITCHIE: Senator Griffo, or Valesky, 11 do you have any questions? 12 SENATOR GRIFFO: I actually -- Jed, you 13 talked about -- I'd be interested in the best 14 approach that you would recommend. 15 And I applaud the DA for her initiatives, and 16 your willingness to travel to be a part of this. 17 You said that you would like to have law 18 enforcement find, understand, and apply. 19 What would be the best way to do that? 20 Would it be to equip them with, you know, 21 something in vehicles? 22 Or do you have an idea of how that should be 23 accomplished? 24 ADA JED PAINTER: Well, two things come to 25 mind when you say that, Senator. 1 First, is just the simple transplant of 2 crimes, from the Agriculture and Markets Law to the 3 penal law. 4 If the patrol scenario crimes are not the 5 more commercial-type provisions that, maybe, a state 6 agency is enforcing -- like, a railway transport for 7 horses, for example -- if you take them on 8 patrol-oriented crimes, codify those in the penal 9 law, I believe that we'll have a much-enhanced, 10 effective police-academy training. 11 I -- again, other witnesses on this panel 12 will be more apt to answer these questions, but most 13 police academies do focus on vehicle-and-traffic 14 law, and penal-law training. 15 Now, granted, there are crimes outside of the 16 penal law. There's tax-law crimes. But, I can't 17 think of an urgent tax-law crisis that requires a 18 radio dispatch and immediate action. That's usually 19 something that can be handled calmly at a desk. 20 A lot of these cases with dog fighting in 21 progress, or severe neglect, or something that 22 requires immediate intervention, that's not a 23 tax-law crime. That's something that a patrolman or 24 patrolwoman needs to be equipped with immediately, 25 to act on. 1 Now, as you were speaking, you indicated a 2 certain computer system. 3 An anecdote, that I'm hoping that the Senate 4 might take up, is, pursuant to Agriculture and 5 Markets Law, Section 374(8)(c) -- it used to be 6 -(5)(c), but it's -(8)(c) now for the most current 7 copy -- a Court, upon conviction for an animal 8 crime, is permitted to sentence the abuser to not 9 have any contact, possession, or control of animals 10 for a time period which the Court deems reasonable, 11 moving forward. 12 Farm animals are excluded, but, in general, a 13 convicted animal abuser can be barred from having 14 any non-farm animal for a period of time which the 15 Court deems reasonable. 16 Recently, and only in maybe the last year, we 17 developed a protocol with our local county PD, that 18 when we get that order from a Court after a 19 conviction, which is a written order, just like an 20 order of protection, the county PD will enter it 21 into our local chief's system which sends something 22 out to a radio car. 23 It's the same system that they check for an 24 order of protection. So, they're responding to a 25 situation of domestic violence, or, really anything, 1 at any address, and they run the address in their 2 due diligence as an officer. 3 Usually they'll see, "Oh, there's an order of 4 protection in effect for this household. I might 5 make an arrest on that." 6 Or they'll see now, an order of protection 7 against animals for residents of that household. 8 And that's how they might uncover it, ancillary to 9 other purposes. 10 In conversations with my chief clerk, and 11 various other chief clerks, there's no statewide 12 clearinghouse for that order to be entered in the 13 NYSPIN system. 14 So, while it's a statewide order, if you're 15 convicted in Nassau, and I have a great order 16 against you that I got after a hard-fought case, and 17 it's entered in my county system, which is the most 18 I can do right now, there's no procedure to get it 19 into the NYSPIN system, that I'm aware of currently. 20 And I believe that's as simple as a memo to the 21 clerk's office or OCA. 22 So, when you made that radio-car remark, 23 that's something that rang a bell. 24 SENATOR GRIFFO: The -- we don't know, and 25 maybe the chief can answer this eventually, too, 1 relative to the level of incidence, whether there is 2 an actual increase that are being reported, but you 3 said that you do believe there are -- is greater 4 awareness. 5 So as a result of that, do you believe 6 there's a greater and a heightened need for 7 intervention than there has been in the past? 8 ADA JED PAINTER: I do believe, as the public 9 sensibility has changed, we owe it to the public to 10 respond accordingly. 11 Now, there's always going to be this 12 philosophical and subjective component to animal 13 crime that makes it unlike any other type of crime. 14 I give the example that, murder is -- with 15 the exception of self-defense, murder is wrong. 16 Rape is wrong. Arson is wrong. 17 It's, killing an animal is wrong, unless... 18 And then you start all of these exemptions: 19 hunting and fishing, and slaughtering for human 20 consumption, and various things like that. 21 There's no "unlesses" with other crimes that 22 allow for some subjectivity going on. 23 And, it really is the only type of crime, 24 where the legislature has hard-and-fast put forward 25 a definition of "animal" that includes every living 1 creature except a human being. 2 And then, 353, which says it's a crime to 3 unjustifiably kill or unjustifiably injure any 4 animal. 5 So, the legislature has made it absolutely 6 clear that all animals are protected. 7 Practically, though, for -- for many 8 reasons -- if I give the example of, a patrolman 9 sees somebody squash a spider on the street, and 10 actually stops the patrol car, and goes up to the 11 person and says: Why did you just squash that 12 spider? 13 Person says: I don't like spiders. That's 14 why I killed it. 15 Now, the officer has seen the unjustified 16 killing of an animal, and he's elicited a 17 confession, he's got great evidence. Why isn't he 18 not arresting? 19 And it goes back to this: public sentiment 20 comes first. 21 First: Would the public even report such a 22 thing behind closed doors? 23 If you saw your friend kill a spider in your 24 own household, when it's a protected animal: Would 25 they call the police on you? 1 Would the police then can come? Would the 2 police then arrest? Would a prosecutor then not 3 laugh it off? Would a judge then not throw it out 4 on a Clayton motion? And, then, would a jury even 5 convict on it? -- when the legislature has given 6 that spider the same protection, by their blanket 7 language, as a turtle or a dog. 8 So, there's a subjective level to criminal 9 law enforcement that makes this area of crime a 10 little more difficult than everything else that can 11 be so objective. 12 And this whole thing about public awareness, 13 it's the public's sentiment. It's really the jury 14 nullification. 15 Does the public care about the species of 16 animal? And, also, the species of animal in a 17 specific situation? 18 Because there are, sometimes, when it's your 19 pet gerbil, and sometimes it's a feeder mouse to a 20 snake. Or, something you set out a mousetrap for. 21 So it's not even species-driven. It's even 22 social mores and local customs. And, where was the 23 animal at the certain time, to make it, unjustified, 24 a killing? 25 It's very difficult. 1 It's very difficult to assess where the 2 public sentiment is at any given time. 3 But, that's as specific as I can be. 4 As the public sentiment evolves, so does law 5 enforcement. 6 SENATOR GRIFFO: Thank you. 7 SENATOR RITCHIE: That definitely shows how 8 hard it must be to deal with this. 9 Just for my own knowledge: If you were 10 called out on a complaint, when are you allowed to 11 pick up the animals? 12 What do you need to actually witness in order 13 to take the animals out of the house? 14 ADA JED PAINTER: There's a few things that 15 are at play there. 16 I always -- excuse me. 17 I almost entirely ignore the Agriculture and 18 Markets Law's provisions for seizure of animals. 19 I go back to Article 690 of the 20 Criminal Procedure Law, with warrants. 21 And I go to the emergency exceptions to the 22 warrant requirement. 23 There hasn't been too much -- there's many -- 24 well, let me put it the other way. 25 There's many state courts and many federal 1 courts that have concretely held that the rescue of 2 an animal is an emergency exception to the warrant 3 requirement. 4 So you don't need -- if you see an animal 5 being tortured or severely neglected, it needs 6 emergency medical intervention, and I get that call 7 as a prosecutor, and the police officer's asking for 8 guidance, I'm telling him to seize the animal right 9 away. 10 And I'll back it up in court that it was a 11 public-safety seizure, that their primary -- because 12 it was: Their primary goal was not to commence a 13 criminal investigation, but to rescue an obviously 14 distressed animal. 15 If it doesn't get to that point, where they 16 don't feel that urgency, I might then just go to a 17 judge and get a warrant, to make things very -- just 18 make sure I'm covered. 19 I have had situations where I have gotten one 20 warrant to seize an animal, and then I had to get a 21 second warrant to examine the animal after it died, 22 because it was just too far gone. 23 And once a living animal turns to a dead 24 animal, the law regards all animals as property. 25 And examination of the interior of a dog, is no 1 different than a warrant to power on a cell phone 2 and search its contents. 3 So, in that one case, in a matter of 4 24 hours, I had to seek two warrants. 5 And, then, even with those two warrants that 6 I got, to play it by the book, I still got a motion 7 from defense counsel, for spoliation of evidence. 8 That I had destroyed evidence in bad faith. 9 Because, once the necropsy was completed on 10 the animal, I had two options from the lab: It was 11 to group cremation or sole cremation. 12 I chose sole cremation. 13 But either way, he -- the defense attorney 14 made an apt argument that I destroyed evidence that 15 he could then not analyze. 16 And the judge agreed with him, saying that, 17 yeah, I could have kept it in a refrigerator and not 18 examined the animal further, to make a stronger case 19 about the abuse that was going on to the animal. 20 Also -- I've also had -- and I got to tell 21 you, the way the criminal-procedure law is written, 22 it's not written to handle living evidence. So I 23 got to hand it to the defense attorney; it was smart 24 argument to make. 25 And another smart argument that I've seen 1 happen, is on a case where a person shot a dog in 2 the head with a shotgun. Had no justification for 3 doing it, at least that was the theory of my case. 4 When the police showed up, he alleged, 5 simply: Oh, it bit me on the hand. 6 He had no injury, but he said: He bit me. 7 Because of the statement that the dog had it 8 bitten him, pursuant to the law, they had to chop 9 the dog's head off and send it to Albany for rabies 10 testing. 11 And that destroyed my evidence. 12 And it also, ultimately, really impacted the 13 case because, once again, the State -- not the 14 defendant -- the State had destroyed evidence. 15 So, again, there's a lot of these technical 16 issues that criminal law was not designed very well 17 in handling living evidence. 18 I gain most of my case law from customs, from 19 when illegal plants come in through the border, and 20 they are destroyed by border patrol agents. And 21 things like that. Things that can't remain static. 22 A gun will remain static on a shelf. 23 A bag of cocaine will, more or less, remain 24 static on a shelf. 25 An animal has financial issues, and you don't 1 want to keep it static. 2 As law enforcement, if I'm seizing an animal, 3 it's because something's very, very wrong with that 4 animal. 5 It's sick, or it's starved, or it was stabbed 6 nine times, or it was shot in the face, and I want 7 to help it. 8 It's my goal to change the status of that 9 evidence, not to preserve it in state. 10 And issues come up with that. 11 SENATOR RITCHIE: Can I just have one 12 follow-up question. 13 If you have a warrant, or if you go out to a 14 house, and there's a complaint against the 15 individual for one animal, if you see any other 16 animals in the house, are you able to confiscate all 17 the animals, or just the one specifically the 18 complaint has been about? 19 ADA JED PAINTER: It depends on the 20 situation. 21 My -- it depends greatly on the situation. 22 But my general inclination would be, to -- 23 for a lot of reasons. I haven't seen a case like 24 that in a while, but -- but my inclination would be, 25 to get a seizure order for the one animal, and then 1 do an impound-in-place order for the remaining 2 animals. 3 And the impound-in-place order, which is 4 sometimes used -- used a lot in farm animals, when 5 you really don't have the facilities to move them, 6 there is a provision of the law that allows a judge 7 to order that, during the pendency of a criminal 8 case, a law-enforcement entity or an SPCA, or any -- 9 the State -- the State, can go to the person's house 10 and check on the status of the other animals. 11 It doesn't foreclose a warrant at a later 12 date. 13 But it's -- and it also is an order against 14 the defendant, to maintain their health and comfort 15 during the pendency of the criminal action. 16 So, financially, for a municipality, it's a 17 benefit to have one of those orders because, now, 18 they're not boarding 13 different animals. It 19 doesn't foreclose a warrant at a later date. 20 And, also, if the person does progress, or 21 neglect those animals, then they're arrested for 22 contempt, as well as arrested again for more counts 23 of animal cruelty. 24 SENATOR RITCHIE: Thank you very much. 25 Scott, did you want to -- 1 DA SCOTT D. MCNAMARA: Sure. 2 First, I would like to thank the Committee 3 for inviting me to speak here today about this very 4 important issue. 5 As most people in this room, and at least two 6 of the Senators are aware, we've had some pretty 7 horrific crimes here locally, involving the 8 mistreatment and murder of animals. 9 Typically in such cases, I'm "flooded." And 10 I don't use that word lightly, but, flooded with 11 e-mails, suggesting that we take the crime serious, 12 that we prosecute it to its maximum, and also ask 13 for the maximum punishment. 14 I'm also typically confronted with e-mails 15 that suggest that different forms of corporal 16 punishment, and even the death penalty. 17 Obviously, everyone knows that's not legal, 18 but, that's how emotional these cases become. 19 I'm going to limit my comments, really, to 20 companion animals, as that's what I understand what 21 this is about, so, I won't talk about farm animals. 22 As some of you know, I was raised on a local 23 dairy farm. 24 I presently own a dog. I consider myself an 25 animal-friendly person. 1 I'm -- try to break this down and make it as 2 simple as I can. 3 I strongly believe, right now, that our laws 4 minimize the value of an animal's life. 5 Often, within our laws, the legislature has 6 thrown in elements that make prosecution difficult, 7 if not sometimes impossible. 8 So, let me just kind of tell you how I would 9 suggest, if you could look it: I agree with -- 10 And it's, Jed; right? 11 ADA JED PAINTER: Jed. 12 DA SCOTT D. MCNAMARA: Jed. 13 -- I agree with Jed, about moving it to the 14 penal law. 15 I would also suggest that you break it down 16 the same as we do people. 17 That we, first of all, make a crime of 18 causing physical injury to an animal. A companion 19 animal, is what we're talking about. 20 And the next thing, that we make a separate 21 crime for causing serious physical injury to a 22 companion animal. 23 And then, finally, making the most serious 24 crime, causing death -- intentionally causing death 25 to a companion animal. 1 Right now, the difficulty that our office has 2 when we have these cases, and I can't really talk 3 about the facts of the case, but there's a case 4 pending right now involving six dogs, is proving the 5 felony-level crime, which most people think should 6 be happening. 7 And under the felony-level crime, as you're 8 all aware of, aggravated cruelty to animals, we have 9 to prove, within that section of the law, aggravated 10 cruelty. 11 It's not enough that we can prove that a 12 person intentionally takes the life of a companion 13 animal. We have to additionally prove aggravated 14 cruelty. 15 Under that, we have to prove that they 16 intended to cause extreme physical pain; and, also, 17 it was done, or it was done -- not also -- in a 18 depraved and sadistic manner. 19 So the mere fact that somebody intentionally 20 kills a companion animal doesn't do the trick. 21 And let me give you a fact pattern. 22 My dog gets loose, runs next door, and my 23 neighbor takes out his shotgun, and shoots and kills 24 my dog. 25 Right now, that crime would have to be 1 prosecuted as a misdemeanor. 2 Most likely, we would look at it as some sort 3 of property crime; meaning, criminal-mischief-type 4 of level crime. 5 Now we're getting into the value of my dog, 6 trying to determine whether or not what the value 7 would be. 8 So, we're not look it a like we would, that 9 we're talking about an actual living animal that was 10 killed. 11 And in that situation, it would be difficult, 12 and I submit to you, impossible, to prove the 13 extreme physical pain, or the depraved and sadistic 14 manner, because, the problem with the law, as it's 15 written right now in the Ag and Markets, you haven't 16 defined a lot of these terms. 17 So, ultimately, we have to fall back on the 18 definitions that are in the penal law, which apply 19 to people, and those definitions don't support a 20 one-shot killing to justify that level of a crime. 21 I'll give a perfect example of a case we had 22 here locally, which I'm sure some people are 23 familiar with. 24 A few years ago, we had a gentleman in the 25 town of Kirkland, who got mad at his wife. He took 1 his wife's dog down into the basement of their 2 house, he shot and killed it. 3 His intent was to hurt his wife; to hurt her 4 feelings. 5 Which, clearly, he did. 6 He also killed an innocent animal, for no 7 other reason than out of anger. 8 And when it came time for us to prosecute 9 that case, the problem we had was, proving the 10 extreme physical pain, because it was a one-shot 11 situation, where the dog died immediately. 12 That, to me, defies the logic of the crime 13 that he committed. 14 I mean, it's a very unnecessary crime. I 15 don't know why we should have to prove the 16 aggravated cruelty. 17 And if we're going to prove aggravated 18 cruelty, I would submit to you, then make that a 19 higher-level crime. But give us a felony-level 20 crime of intentionally killing a companion animal 21 without justification or necessity. 22 And I say the "justification" and 23 "necessity," obviously, I think some of you know 24 what I'm talking about; but "justification" would 25 be, you know, obviously, the self-defense situation, 1 where the dog was attacking you. Or, a "necessity," 2 if the dog had rabies, and it was necessary. 3 But, I really think, if we broke this down 4 and just made it a lot simpler. 5 Right now, the Ag and Markets Law is very 6 difficult to read. 7 And I agree: the police don't typically have 8 that on them. 9 And, we could make this a lot easier. And 10 also provide rights to our animals, and also provide 11 rights to the owners of these animals, that 12 currently don't seem to be there. 13 Couple of other things I just wanted to touch 14 upon, which I won't go into a great amount of 15 detail: 16 You know, obviously, defining the words that 17 are in that Ag and Markets Law would be very 18 beneficial to us, so that we don't have to guess or 19 rely upon a Court's interpretation. 20 And another thing that is a concern of ours, 21 and especially in my office, and the prosecutor that 22 handles a lot of the cases: Because these are under 23 the Ag and Markets Law, they don't apply for second 24 felony offender. They don't apply for -- as was 25 said before, they don't apply for DNA. And some 1 don't even apply for fingerprinting. 2 So, you know, those are the type of things 3 that we need to look at. 4 Because, if we have somebody who is -- has a 5 long history of criminal conduct, and it's all under 6 the penal law, and then he goes out and 7 intentionally kills his neighbor's dog for no 8 reason, other than just because he felt like being 9 mean, we're left with a relatively minor crime, with 10 very little punishment available to us. 11 And, honestly, the public doesn't understand 12 that. 13 They do not understand, when I try to explain 14 to them, you know, that the law doesn't provide for 15 more protection for companion animals. 16 So, that's what I would, you know, just ask 17 you to consider, and to push forward, because, you 18 know, as the law is written right now, it's very 19 difficult for us to prosecute. 20 And, honestly, you know, it's written, as was 21 explained, with enough loopholes in it, that a good 22 defense attorney -- as we saw recently in a case 23 here, involving a dog that was shot three times and 24 killed, a good defense attorney doesn't really have 25 a problem getting somebody acquitted on these type 1 of charges. 2 SENATOR RITCHIE: Thank you. 3 DA SCOTT D. MCNAMARA: Thank you. 4 SENATOR RITCHIE: Do you have any questions? 5 SENATOR GRIFFO: Scott, when you talk about 6 it being minimized right now, do you believe -- 7 there are a number of ideas, and that's one of the 8 reasons to conduct the hearing, too, that are out 9 there right now; is, DA Rice has some suggestions, 10 and there are other members who have ideas. 11 Do you think the best means to accomplish 12 this would be through strengthening some of the 13 existing laws, or looking at new laws? 14 And, then, where is that best placed? 15 I know I heard something, saying, maybe out 16 of Ag and Markets, and into, you know, another 17 aspect of the criminal code. 18 I mean, what is the best way? 19 Should we strengthen what we have, and -- or 20 should we look to some new things that have to be 21 done? 22 And, then, where's the best place? 23 DA SCOTT D. MCNAMARA: I can only speak for 24 myself. 25 I would like to see it moved to the penal 1 law. And I would like to see it -- 2 [Applause.] 3 DA SCOTT D. MCNAMARA: And I would like to 4 see it rewritten, to be broken down similar to how 5 we handle crimes on people; and that be: 6 Physical injury. 7 [Applause.] 8 DA SCOTT D. MCNAMARA: And that would be with 9 a physical-injury element, which in -- with people, 10 is assault, you know, third. 11 With serious physical injury, which, with 12 people, is assault in first or second degree, 13 depending on how it's done. 14 And, ultimately, you know, the murder of an 15 animal. 16 So, I would rather see it done that way, than 17 to try to take things out of the Ag and Markets Law 18 that make it difficult. 19 That would be my position. 20 SENATOR RITCHIE: Chief, do you have some 21 comments? 22 CHIEF MARK WILLIAMS: Yes, thank you. 23 I'm Chief of Police Mark Williams. I'm the 24 chief for the city of Utica. 25 We serve, roughly, a population of 1 62,000 people. 2 I have a 163 men and women on the police 3 force. 4 And, we have one full-time animal-control 5 officer that we nearly lost during the last budget 6 process, where we wouldn't have any. 7 It certainly presents its challenges. And 8 what we have had to do, is reach out to other 9 entities, to get training for several of our police 10 officers, to fill in for our animal-control officer 11 when he's not available. 12 But, just to give you an idea of what we face 13 during the course of a year: 14 During the year 2010, we, roughly, responded 15 to about 12,000 calls for animal control, and we saw 16 about 46 arrests during that year. 17 And last year, that increased to well over 18 1,800 calls. And, again, we saw an increase in 19 arrests: about 54. 20 And this year, we're well on pace to exceed 21 the amount of animal-control calls that we're going 22 on, as well as the amount of arrests. 23 So, the problem that we're having is 24 certainly increasing. 25 A lot of the cases that we come across, when 1 it comes to animal cruelty, believe it or not, are 2 cases involving our drug investigators executing 3 search warrants in a lot of these houses. 4 Unfortunately, a lot of these dogs, 5 especially the pit bulls, are becoming nothing more 6 than tools of the trade for the drug dealer, who are 7 trying to ward off anybody that may come into the 8 house, to try to take their stash, and to protect 9 it. 10 And, what we're seeing in a lot of those 11 cases is the cruelty charges as well. 12 I mean, last year alone, we executed over 13 150 drug search warrants here in city of Utica. 14 And, you know, like, again, we certainly saw 15 our challenges. 16 And, again, the primary dog that we're -- 17 type of breed of dog that we're seeing is certainly 18 the pit bull, that we're seeing. 19 But, just to highlight on a couple of things 20 that the other two speakers talked about prior to 21 myself: 22 I do agree that, now, the law should be 23 changed to the penal law. 24 When I first came on the job, back in 1988, I 25 didn't know that the Agriculture and Markets Law 1 existed. 2 It took, maybe, three years into my career, 3 that I had studied for a sergeant's exam, that I 4 found out about the Agriculture and Markets Law, 5 and, more importantly, about the animal-cruelty 6 laws, to boot. 7 Since that time, you know, thank God, police 8 training has changed dramatically. 9 But even today, I mean, our officers do have 10 access to the Agriculture and Markets Law, through 11 their mobile data terminal, which is their computer 12 in their car. 13 But, they have to search for it. You know, 14 they have to do a search query. They got to know 15 that it's in the Agriculture and Markets Law, to 16 find it. 17 So, I think by moving it to the main law that 18 we use every day, which is the penal law, it makes 19 it simpler and more easy to use. And, you tend to 20 find that the laws in the penal law are the ones 21 that tend to get the most attention when it comes to 22 police academy and training, and in-service training 23 as well. 24 So, other than that, I'm certainly open to 25 any questions that you may have. 1 SENATOR RITCHIE: You talk about the number 2 of cases. 3 Can you tell me what percentage were actually 4 neglect and abuse? 5 I mean, you must get calls for other reasons. 6 So, I guess, what percentage would you 7 consider were neglect or abuse? 8 CHIEF MARK WILLIAMS: I don't have those 9 stats available. 10 I can certainly get those for you. 11 I will tell you this: 12 Is that, you know, back about a year and half 13 ago, I instituted a new policy with the Utica Police 14 Department, and we created a "public information 15 officer" position. 16 And what we saw is, that whenever any of 17 these animal-cruelty cases, you know, was put out to 18 the news media, they go viral. 19 And the phone calls to my office, I mean, 20 they're not limited to Utica, New York, they're not 21 limited to the state of New York. They're 22 limited -- they're -- you know, they come in from 23 all entities, include some other countries. And, 24 letters. 25 So, it's obvious that people are speaking. 1 This is a serious concern. You know, 2 nationwide, worldwide, it's a serious problem. 3 And I think, likewise, we got to strengthen 4 the laws, and make it workable for the police 5 officers to be able to properly charge that. 6 There's always going to be challenges in 7 enforcing the laws, too, because one of the things 8 that you got to prove, is intent. 9 And, one of the biggest problems you're 10 dealing with, you're dealing with a victim that, 11 obviously, they can't speak for itself. 12 So, there are certainly challenges. 13 SENATOR RITCHIE: Do you have a question? 14 SENATOR GRIFFO: Chief, when -- you, and, 15 obviously, in many communities across the state, are 16 being financially challenged right now. 17 So, even though you have officers who are 18 entrusted with that specific responsibility, 19 so-called "animal-control officers" in many 20 communities, in many instances, you're going to have 21 to rely on the rank and file also to augment that, 22 because, as you said, you're never going to have 23 enough officers that you may need to deal with the 24 situation. 25 CHIEF MARK WILLIAMS: Absolutely. 1 SENATOR GRIFFO: So, how do you prepare your 2 department, then, to do that? 3 With adequate training? 4 And, what's the best approach? 5 Because, again, you have fiscal challenges; 6 but, obviously, you can't rely on one particular 7 segment of the department, or public safety, to take 8 care of the whole situation. 9 CHIEF MARK WILLIAMS: Absolutely. 10 Just recently, we had an outside animal -- I 11 forgot the name of the organization that came in and 12 did in-service training for, basically, about 13 five officers that volunteered, that basically do 14 the work of an animal-control officer, in his 15 absence. 16 What we have -- in addition to that training, 17 we opened it up to the Stevens-Swan Humane Society 18 organization as well. 19 And, one thing I would like to highlight with 20 the Stevens-Swan Humane Society: We have an 21 excellent working relationship with them. They are 22 phenomenal. 23 They themselves have, you know, financial 24 challenges as well. 25 And, you know, we work well with them. 1 But, what's nice about specifically training 2 several other officers to do the work of the 3 animal-control officers, now, in those absences, 4 when he's not work his 8-hour day, we can now fill 5 that void, and have officers there, specially 6 trained to deal with these matters. 7 SENATOR GRIFFO: But let me ask a follow-up, 8 maybe -- and anybody can answer this, because I 9 think you brought up an interesting point here. 10 Because we look at balance, we're here to try 11 to protect animals, obviously companion animals. 12 And that's what we're trying to gather information 13 on, and to determine the best course of action. 14 But you brought up a point, where animals are 15 trained to be weapons. 16 And then, as a result, you put 17 law-enforcement officers in harm's way. Or, 18 potentially, even community residents. 19 I mean, how do we strike that balance there, 20 with owner accountability, and if an animal is 21 trained to become, and used against individuals who 22 is are trying to execute and enforce the law too? 23 CHIEF MARK WILLIAMS: There is provisions of 24 the penal law that do deal with a -- you know, a -- 25 and it's in the assault section, I believe, they 1 deal with an animal that is used as an extension of 2 the owner, to strike out as a police officer. 3 The problem that we face, is that we execute 4 no-knock search warrants. So when we initially 5 enter, the first person -- or, the first thing 6 that's going hear us is the animal. 7 And the next thing you know, our officers are 8 coming through the door, and they're faced with a 9 charging pit bull, most of the times. 10 SENATOR GRIFFO: I'm just asking, from 11 prosecutorial or law enforcement, what else could we 12 do with ownership? 13 Because, obviously, there's got to be owner 14 accountability too. And, many of these are 15 criminals. 16 So, I mean, are there additional charges that 17 can be put on -- 18 DA SCOTT D. MCNAMARA: I would think, yes, 19 Senator. 20 I would think that you should have a law that 21 specifically addresses the situation where people 22 are using their dog to do -- and not make us try to 23 make it work. Okay? 24 So, for example: If someone's using their 25 dog to be a weapon, and then we're trying to prove 1 it through an assault section, that's very 2 difficult, because then you have, within the middle 3 of that: Well, the dog did it on its own. I didn't 4 intend it. 5 And that becomes very difficult. 6 And, you know, another thing is, just the 7 neglect and the mistreatment of the dog that goes on 8 when they're doing that. 9 You know, a lot of times, they're making 10 these dogs mean. 11 You know, I've read different things. 12 Pit bulls, you know, not always by nature, are a 13 mean dog. 14 They're made mean, because they want them to 15 be aggressive when people come in the back door, and 16 the front door, as the case might be. 17 So, that all needs to be looked at if we're 18 really going have a serious discussion about, you 19 know, animal rights, and passing laws that address 20 these problems. 21 SENATOR GRIFFO: So it would be owner 22 accountability as well as animal rights? 23 DA SCOTT D. MCNAMARA: It's like endangering 24 the welfare of a child. 25 I mean, we look at that situation, when 1 people, how they interact with children. 2 The same thing, some form of that, with a 3 dog, I would submit, would be an appropriate. 4 You know, obviously, it's going to be a 5 lesser charge, but it should definitely be something 6 that we could prosecute. 7 Right now, it's very difficult to do that. 8 ADA JED PAINTER: And on that note: One of 9 our best partnerships is with CPS and APS. 10 We found out, very early on, that neglect is 11 neglect. And whenever we see an animal neglected, 12 we've usually seen some child neglect; and 13 vice versa. 14 And CPS knows that. And that's one of the 15 professional relationships we've worked hard to 16 develop. 17 There's all of these studies about serial 18 killers coming out of, you know, animal tortures, 19 and gang activity coming out of dog fighting. 20 And I've seen a lot of those links firsthand. 21 But, I got to tell you, I don't understand 22 why there has to be so many studies, to show that a 23 violent person is a violent person, and a neglectful 24 person is a neglectful person. 25 [Applause.] 1 SENATOR RITCHIE: Senator Valesky, did you 2 have any questions? 3 Thank you all. 4 ADA JED PAINTER: Thank you. 5 DA SCOTT D. MCNAMARA: Thank you. 6 CHIEF MARK WILLIAMS: Thank you. 7 SENATOR RITCHIE: Bill is going to testify. 8 Bill, do you want to come up, please. 9 SENATOR GRIFFO: Senator Ritchie, while we're 10 getting situated here, I also want to mention that 11 we have many local advocates in our community that 12 are here today. 13 The Stevens-Swan Humane Society is here. 14 Spring Farm CARES is here. 15 Central New York Kennel Club is here. 16 I want to thank all of the public who have 17 come, but particularly organizations who have shown 18 their interest and have provided written testimony. 19 Thank you. 20 SENATOR RITCHIE: And the final speaker will 21 be Bill Ketzer, senior state legislative director, 22 Northeastern Region of the ASPCA. 23 Thank you very much for coming today. 24 BILL KETZER: Thank you. 25 Thank you for having me, Madam Chair, 1 Senator Griffo, Senator Valesky, Mr. Kusnierz. 2 My name is Bill Ketzer. 3 And like you mentioned, I am the senior state 4 legislative director for the northeast, for the 5 ASPCA. 6 I am, actually, fairly new to this position. 7 In my previous capacity, I was a 8 deputy commissioner of the Department of Agriculture 9 and Markets. 10 And before that, I was, what I like to call, 11 a creature of the legislature myself. 12 And, so, I know what goes into putting these 13 meetings, and taking them on the road, especially 14 during a busy May legislative session. 15 So, thanks for the opportunity to be here 16 today. 17 I can speak reasonably confidently for our 18 200,000 New York members when I applaud your 19 interest in learning more about the existing 20 challenges in regards to companion-animal cruelty. 21 And also, perhaps, taking action to address some of 22 the more problematic public-policy issues we face 23 today, which -- some of which were very eloquently 24 described by folks who preceded me. 25 This -- these laws are, you know, often the 1 first, and only, defense for companion animals. 2 And, so, I can't really stress the importance 3 of a public forum like this to increase the 4 visibility of these types of issues. 5 So, thank you. 6 State-level anti-cruelty laws generally 7 penalize two types of actions, and we've touched on 8 that a little bit. 9 So you have (a) intentional acts, and (b) the 10 failure to act; or an act of omission, so to speak. 11 So, currently, only three states in the 12 country failed to differentiate between the two, and 13 provide some sort of felony offense for the 14 intentional aggravated commission of animal cruelty. 15 In New York State, as also mentioned earlier, 16 the intentional act of aggravated animal cruelty is 17 a felony, applicable only to companion animals. 18 And this is more commonly known as 19 "Buster's Law." And this is Ag and Markets Law, 20 Section 353-a. 21 And the language of the statute was pretty 22 carefully negotiated upon its enactment in '99, from 23 what I understand, and is very prescriptive, in 24 that: "The offender must" -- 25 And this is the definition. 1 -- "with no justifiable purpose, 2 intentionally kill or intentionally cause serious 3 physical injury to a companion animal with conduct 4 either intended to cause extreme physical pain or is 5 carried out in an especially depraved or sadistic 6 manner." 7 So there's a lot of intents in there, and 8 it's a very tight definition. 9 And perhaps, in part, due to specificity of 10 this law, many cruelty situations in New York, more 11 typically fall, of course, into the failure-to-act 12 realm. And the General Animal Cruelty Law is 13 applicable to all animals, and quite broadly 14 scripted. 15 And, typically, these violations carry a 16 Class A misdemeanor, and include -- and, again, this 17 is a very antiquated statute: Overdriving, 18 overloading, torturing, cruelly beating, 19 unjustifiably injuring, maiming, mutilating, 20 killing, depriving of unnecessary sustenance, food 21 or drink; or willfully engaging, instigating, or 22 furthering any of the above acts. 23 But, despite this expansive definition, the 24 law does not specifically, in my opinion -- and I'm 25 not a prosecutor or an attorney, and I don't play 1 one on TV. Like I said, I'm a creature of the 2 legislature. -- but, in my opinion, the law doesn't 3 specifically include provisions for what is, 4 overwhelmingly, the most common injustice humans 5 inflict upon animal companions, and that is: actual 6 abandonment. 7 In neighboring states, and in most 8 U.S. states, "abandonment" is either kind of tucked 9 in the definition of the state's cruelty laws, and 10 punishable under the same. Or, a broad definition 11 of "abandonment," is provided, that can include 12 private premises. 13 And, of course, as in all situations, you'd 14 like to think, you know, these are broadly defined 15 to allow for factual circumstances, to determine 16 criminal culpability. 17 But New York, by contrast, interestingly, has 18 a separate and distinct law on the books for 19 abandonment of animals, that has been determined to 20 be applicable, "when any animal is left to suffer or 21 die" -- 22 That's a quote from the statute. 23 -- "suffer or die in a public place." 24 And that's Section 355 of the Agriculture and 25 Markets Law. 1 And Mr. Painter commented on how antiquated 2 law these laws are. 3 And, so, this "abandonment" provision, in 4 particular, was chaptered in 1961. So that's about 5 50 years ago. And the statute was most likely -- I 6 wasn't alive back then, but, most likely, it was 7 geared towards curtailing abuses of work animals. 8 And, now, is also readily applicable to 9 situations where folks leave animals at shelters 10 without formally surrendering the animal. 11 I have the definition in the testimony. I'm 12 not going of sit here and read the entire thing. 13 But, to me, unfortunately, what this means, 14 is that the abandonment law is kind of useless in an 15 incident like the one here recently in Utica, where, 16 you know, the eight dogs were found abandoned in a 17 Whitesboro Street residence. 18 So, the owner has been charged -- and someone 19 can please correct me if I'm incorrect -- but I 20 believe the owner has been charged with eight counts 21 of misdemeanor cruelty. 22 That's the failure to act. 23 And several non-criminal violations: 24 Unlicensed dog, and things of that nature. 25 But there's, I think, a significant missed 1 opportunity here to -- you know, if the abandonment 2 law included abandonment of an animal on a private 3 premise, that would be an additional, separate and 4 distinct crime that could be prosecuted under the 5 Agriculture and Markets Law. 6 And, I would like to think of that as more of 7 an early intervention mechanism. 8 I mean, as it stands now, the -- a 9 law-enforcement official cannot charge an owner 10 solely on the basis that or she has abandoned a pet 11 in a residence, despite the potential, and almost -- 12 and a lot of times, unfortunately, inevitable 13 consequences if the animal's left unchecked. 14 This is, I think -- I want to just stress the 15 importance of it, because, you know, neglect and 16 abandonment are, by far, the most common crimes, 17 according to a lot of different national 18 organizations. 19 I use as an example, petabuse.com, because 20 they are a New York-based organization. 21 But, they're national, not-for-profit. 22 And they compile animal-cruelty information 23 state by state. 24 And, you have a chart here. I couldn't bring 25 my PowerPoint today, but you can see that, on the 1 chart, that abandonment is, by far, the most common 2 crime. 3 And, interestingly, right above that is, 4 animal hoarding, which is a topic for another 5 hearing, I believe. 6 For many years, Assembly Member John McEneny 7 has attempted to close this abandonment-law loophole 8 with, this year's bill is A-1878. This bill would 9 make abandonment applicable to private property. 10 The Assembly Agriculture Committee reports 11 this regularly, but it has actually never reached 12 the floor for a full vote in that house. 13 The legislation does not currently have a 14 Senate sponsor. However, Senator Valesky, your 15 predecessor, took this bill on for many -- many 16 years, and was able to get it through the Senate. 17 So, I would be happy to work with members of 18 this Committee, or any member of the Senate or their 19 staff, to take a harder look at the way these 20 sometimes antiquated laws are constructed, with an 21 eye toward providing better prevention and response 22 and prosecutorial tools for law enforcement. 23 So, and that said, I just wanted to talk a 24 little bit more about other anti-cruelty proposals 25 that are out there in the legislature right now. 1 Todd, you mentioned Senator Ball's two bills. 2 5804, which would provide that no person 3 convicted of a violation of Buster's Law -- 4 That's the felony cruelty. 5 -- can no longer possess a companion animal 6 unless authorized by the county court, following a 7 psychological evaluation. 8 And then, also, the expansion of the felony 9 cruelty law to include harm-training laws during the 10 commission of a felony. 11 So, thank you for reporting that recently. 12 The other two I would just like to mention: 13 There's a lot of animal bills in the legislature, as 14 I'm sure that you know all too well. 15 These are general concepts that a lot of 16 members have tried to tackle, and have struggled 17 with over the years. And, so, I'm just mentioning 18 these as examples, as just general examples, of 19 these concepts. 20 Assemblywoman Paulin from Westchester has a 21 bill, A-269, which would make any misdemeanor a 22 cruelty violation within five years from the date 23 prior. 24 Basically, if you have been convicted of 25 misdemeanor cruelty within five years, and then you 1 offend again, that would be a crime on the level of 2 the Buster's Law statute. 3 So, that would be a Class E felony -- or, the 4 lesser Class E felony, as Mr. Painter had 5 described. 6 In addition, and this one is actually new, it 7 comes and goes, but I think it's actually very 8 important to mention, it's not directly, necessarily 9 related to the cruelty statute, but, 10 Assemblyman Magee, the Agriculture Chair in the 11 Assembly, has introduced a bill that would prohibit 12 the tethering of dogs to stationary objects or 13 certain types of mobile devices. 14 Pretty carefully scripted. 15 Pretty consistent with the New York City's 16 new law on the books, as of, I believe, last year. 17 And, consistent with a lot of what other 18 states are looking at. 19 It basically provides exemptions for, you 20 know, a lot of obvious stuff. You know, veterinary 21 and grooming and hunting and training, and other 22 types of activities. 23 And, this was a brand new bill, 10053. And 24 also, currently, does not have Senate sponsorship. 25 So, certainly, a significant degree of debate 1 always surrounds the expansion of the existing 2 cruelty statutes in the legislature. 3 But, public forums like this, I can't stress 4 enough, are essential to further that discourse, and 5 elevate public visibility. 6 So, thanks to you all for being here today as 7 well. 8 I wanted to talk a little it be about the 9 ASPCA's law-enforcement resources that are available 10 to municipal law-enforcement officials. 11 So, in addition to the legislative solutions 12 we just talked about, other means exist to 13 strengthen the safety net for animal protection, and 14 show the public that New York means business when it 15 comes to enforcing its existing animal-cruelty laws. 16 I really would -- I would be remiss not to 17 make the Committee aware of our outreach services, 18 as they relate to cruelty. 19 We have an anti-cruelty group. 20 The legislature -- the legislative unit used 21 to fall under the anti-cruelty group, was -- our 22 government-relations arm is now growing, and it has 23 come out from underneath anti-cruelty unit, leaving 24 the anti-cruelty group to really focus on what it 25 does. 1 They have an actual contract in New York City 2 to do humane law enforcement in New York 3 City-proper. But in addition to that, they provide 4 professional education to law-enforcement officials. 5 And that's available on an as-needed basis, 6 upon request, as resources, as we're able to do 7 that. 8 The anti-cruelty-group umbrella also houses a 9 field services department, which works with 10 professionals in the veterinary, judicial, 11 law-enforcement, and social-services fields, to 12 educate them on detecting, investigating, and 13 prosecuting animal cruelty. 14 We do this all over the country. And, it's 15 vital, because a growing body of research is, of 16 course, as others have talked about today, have 17 documented the link between violence to humans and 18 animal abuse. 19 The ASPCA also recently announced the 20 creation of a legal advocacy department, to increase 21 legal protections for animals across the country. 22 This department is headed up by a woman named 23 Stacy Wolfe, who's actually my, not immediate 24 predecessor, but, a predecessor. 25 She was the former lobbyist for the ASPCA in 1 New York State. 2 She heads-up our humane legal-services 3 department. And then, also, the legal-advocacy 4 department. 5 That's a lot of hats to wear. 6 And they're going to provide second -- this 7 was recently announced, literally, last week, but 8 it's been in the works for quite some time. 9 And what they're going to do is, provide 10 second-chair legal support through the coordination 11 of legal and other expert services that are vital to 12 the effective handling of animal-cruelty 13 prosecutions, as well as conduct selective, 14 affirmative civil litigation cases, in instances 15 where the potential to effect substantial change in 16 a given state exists for a nationwide impact. 17 So, I'm going to provide my -- you have my 18 contact information, but I'll leave some cards as I 19 leave. And I urge anyone to contact me regarding 20 our availability for law-enforcement training, and 21 any other services we offer in your districts, and 22 surrounding jurisdictions. 23 Lastly, I was simply -- I was pleased to see 24 in your press release announcing this hearing, 25 Senator, that this week is "Be Kind To Animals 1 Week." 2 And this is a great time to focus on -- for 3 everyone to share -- to focus on sharing love and 4 compassion of animals, particularly with children. 5 Since they -- you know, they literally 6 inherit our future. And, humane education begins, 7 first, at home, and then can continue in the 8 classroom, whether it's volunteering at your local 9 shelter, learning about how to report animal abuse, 10 adopting a homeless animal, or simply just getting 11 involved locally and advocating for change. 12 I hope some of you here today will find ways 13 to support programs that educate children to treat 14 animals humanely, and encourage others to do the 15 same. 16 So to close: In the last few years of the 17 twentieth century, animal welfare has received a 18 great deal of legislative attention. 19 When I was in the legislature, and for about 20 five years prior, I was fortunate enough, when I was 21 the director of the Assembly Agriculture Committee, 22 I was left a huge body of information; lots of 23 different public hearings on companion-animal 24 issues. 25 40 miles from here, a gentleman named 1 Michael Bragman, then Assembly and former majority 2 leader, way back, when was the chairman of the 3 Agriculture Committee in that house, and did a ton 4 of work on this stuff. 5 But, recently, and there's tons -- there's 6 many, many reasons for this, of course, but, 7 hearings and roundtables and other public 8 opportunities of this sort, have been few and far 9 between. And that's a shame, because, in a 10 prolonged economic downswing, like we're currently 11 experiencing, and, hopefully, kind of creeping our 12 way out of, a lot of bad decisions are made 13 regarding pet ownership. 14 So, interestingly, the infrastructure for 15 animal care and sheltering and other services are 16 slowly changing as well, as a lot of effort is being 17 put into rescue organizations, and formalizing the 18 relationship they have with shelters. 19 It doesn't sound controversial on its face, 20 but it is an enormously controversial issue. And, 21 so, that's coming up at the same time. 22 So, I really applaud your efforts to bring 23 folks together here today, to talk about this issue. 24 And I hope that -- I look forward to future 25 opportunities in that respect. 1 So, I would be happy to answer any questions 2 you might have. 3 SENATOR RITCHIE: Thank you, Bill. 4 Just for clarification: You were talking 5 about New York City and education for law 6 enforcement. 7 Did you say that was available locally -- 8 BILL KETZER: Yes. 9 SENATOR RITCHIE: -- or just in New York 10 City? 11 BILL KETZER: No, it's available to anybody 12 who wants to request that. 13 I can -- I'll take the information of 14 anybody. 15 What we do is, our humane law-enforcement 16 division will go out into communities, and provide 17 educational seminars to local law-enforcement 18 officials. That could be county government, county 19 sheriffs. That can be, we do state police academy, 20 we do local police. All over the state. 21 In New York City, in addition to that, the 22 ASPCA has long-held the contract for the City, to do 23 actual humane law enforcement. So -- and that's the 24 only place we do that. 25 SENATOR RITCHIE: Thank you. 1 Senator Griffo? 2 SENATOR GRIFFO: Quickly, putting your former 3 hat on, we did invite the Department of Agriculture, 4 but I think they were unable to attend. 5 As a former deputy commissioner, is that the 6 appropriate place for jurisdiction or 7 responsibility, who we deal with? 8 BILL KETZER: Oh, boy. 9 SENATOR RITCHIE: Nothing like putting you on 10 the spot. 11 BILL KETZER: The cameras are gone; right? 12 No. No. 13 I mean, and I'm confident to say that. 14 And that's not a knock on the Department of 15 Agriculture. 16 The Division of Animal Industry has no 17 law-enforcement capability. They do not -- they are 18 not authorized in this state, to -- to prosecute, to 19 investigate, animal cruelty. 20 And that would be -- they have no 21 jurisdiction over Article 26 of the Agriculture and 22 Markets Law. 23 So, they often -- you know, they -- what 24 happens is, the legislature has given them some 25 companion-animal programs over the years. 1 The only one that's left is the Pet Dealer 2 Program. A lot of folks call that the "puppy mill 3 program," but it's -- it's a pet-dealer program. 4 It's -- they go after who they can with the 5 resources that they have. And what that means, 6 really, is pet stores. They do very few breeders 7 selling at retail. 8 SENATOR GRIFFO: We talked about the 9 financial difficulties facing communities, 10 organizations. We have a number of great 11 organizations that are present here today, as I 12 indicated. 13 Do you -- because they're also facing 14 financial challenges, do you cooperate and 15 collaborate with them, to assist in trying to 16 provide some of the things that you talked about? 17 Like, training, that maybe the Utica Police 18 Department might need, and you could help, the 19 Stevens-Swan Humane Society. 20 Are those type of collaborations in 21 existence? 22 BILL KETZER: Yep. We -- I don't know right 23 off the top, whether or not we have collaborated 24 with Stevens-Swan. 25 But, we do have a community-outreach 1 department. 2 And -- which has recently kind of been 3 overhauled. And, so, we do have a 4 community-outreach person, who serves both New York 5 and New Jersey. Jo Van Tyle [ph.] is her name. 6 And she is the one who is the direct -- 7 that's the person that not-for-profit organizations, 8 SPCAs, animal shelters, can reach out directly -- 9 SENATOR GRIFFO: But there is a willingness, 10 and a possibility, to also interact with our 11 organizations who are, as I indicated, facing 12 financial challenges too, that, maybe, in a 13 collaborative effort, they could help communities 14 and municipalities that may need additional training 15 and other types of assistance? 16 BILL KETZER: Absolutely. Absolutely. 17 And I should -- I guess I would be remiss, 18 too, to mention that, at the sheltering level at the 19 humane society -- the local humane-society, local 20 SPCA level, the -- as a part of the -- I'm going to 21 put my old hat back on for one more minute -- the 22 2010 budget, the Department of Agriculture and 23 Markets used to have an animal population-control 24 program. And what that is, is it's funded by a 25 surcharge on dog licenses. 1 The department wanted out of the business. 2 The 2010 budget got them out of the business, and 3 created a great, much more expansive program, in 4 terms of the types of eligible programs that 5 shelters can apply for. 6 And, counties and municipalities are eligible 7 as well. 8 That's a -- over -- it's a 5-year contract. 9 The ASPCA has the contract. 10 So, as you can imagine, I'm going to be 11 forbidden to work on that in-particular program, 12 pursuant to our ethics laws. 13 But, it's certainly -- there is no law 14 disallowing me to promote it. 15 It's a wonderful program. It's a -- over 16 five years, a multi-million-dollar program. 17 And, during the off-session, when I have my 18 wits about me, we'll be out, especially in upstate 19 New York, promoting the availability of that money 20 to shelters and to municipalities. 21 [Applause.] 22 SENATOR GRIFFO: Thank you. 23 BILL KETZER: Thank you. 24 SENATOR VALESKY: Yeah, I just want to follow 25 up, briefly, on Senator Griffo's first question. 1 You're certainly in a unique perspective, 2 having worked in the legislature, worked at the 3 department, and now doing the work that you're doing 4 now. 5 The previous guests here, who certainly 6 suggested strongly, that we look at, in effect, 7 moving the entire body of law from the 8 Agriculture and Markets Law to the penal law. 9 Notwithstanding the legislative challenges of 10 moving an entire set of law that has been written 11 over several years, and I understand that, but, from 12 your perspective, would that have a significant 13 positive impact, to look at something as dramatic 14 as -- 15 BILL KETZER: Based on -- I thought the 16 testimony that preceded me was quite valuable. 17 You know, based on those, based on that 18 factual experience, I would say it certainly 19 warrants attention. 20 The ASPCA has supported that idea, in 21 concept, for many, many years. But, it wasn't only 22 until recently, where someone like Mr. Painter in 23 Nassau County, really kind of took the bull by the 24 horns, so to speak, and really tried to -- it's not 25 necessarily -- it's not -- well, it's not a bill you 1 can write on a cocktail napkin, you know. 2 It's -- you really have to go through this. 3 And, I've have written bills on cocktail napkins, so 4 I can say that. 5 [Laughter.] 6 BILL KETZER: But, it really has to be done 7 the right way. 8 And as I believe I just mentioned, our humane 9 law-enforcement division is actually reviewing that 10 right now, because, clearly, the Senate means 11 business, in terms of advancing the bill. 12 I'm not quite sure whether where the Assembly 13 is. 14 But, at the same time, given the problems 15 that boots-on-the-ground law enforcement has, and 16 given the fact that, yes, it's very -- it's highly 17 unlikely that a beat cop is carrying a copy of a 18 McKinney's in his glove box, yeah, I think it 19 warrants a lot of attention, sure. 20 SENATOR VALESKY: Thank you. 21 SENATOR RITCHIE: I would just like to thank 22 you, and Jed, and the other two gentlemen, for your 23 testimony today. 24 BILL KETZER: Thank you. 25 SENATOR RITCHIE: Certainly appreciate your 1 time. 2 And I look forward to working with you and my 3 colleagues here, to help to protect our pets, and to 4 move this issue forward. 5 So, while the public hearing is closed at 6 this point, if there's anyone in the audience who 7 would like to submit testimony for us to look at, 8 have any questions, please feel free to contact our 9 office, either in Watertown or in Albany. 10 And thank you again for taking time out to 11 come today. 12 BILL KETZER: Thank you, Senator. 13 [Applause.] 14 15 (Whereupon, at approximately 3:50 p.m., 16 the public hearing, held before the New York State 17 Senate Standing Committee on Agriculture, 18 concluded.) 19 20 ---oOo--- 21 22 23 24 25