Strengthen Animal Cruelty Laws

Ultimately, the bill will promote sound enforcement and consistent interpretation of animal crimes by members of law enforcement and the court system.

Summary of specific provisions

Section one amends Section 350 of the Agriculture and Markets Law by adding Subdivision 6, which provides the definition of an "animal cruel- ty offense;" a term used to help define the scope of various other proposed and existing statutes involving evidence collection, animal disposition, and sentencing. The term also goes beyond enumerated crimes to include any offense by which an animal is victimized (e.g. reckless endangerment of property; criminal mischief). Section one also adds Subdivision 7 to Section 350 of the Agriculture and Markets Law, which provides the definition of a "duly incorporated society for the prevention of cruelty to animals," which is a cross-reference to the provisions providing for the creation and powers of such entity as contained in the not-for-profit corporation law.

Section two repeals Sections 351, 353, 353-a, 353-b, 353-d, 355, 360, 361 and 362 of the Agriculture and Markets Law. Variations of Sections 351, 353, 353a, 355, 360, 361, and 352 appear in the proposed Penal Law Title 9. Sections 353-b and 353-d are inserted verbatim in the proposed Penal law Title Q.

Section three amends Section 365 of the Agriculture and Markets Law.

Section four amends Section 369 of the Agriculture and Markets Law and Section five amends Section 371 of the Agriculture and Markets Law, both of which are given language to help incorporate them and otherwise make them applicable to the provisions of the proposed Penal Law Title Q.

Section six amends. Subdivision 6 of Section 373 of the Agriculture and Markets Law to add other agencies to qualify as impounding organizations for the purposes of petitioning for a security bond in order to obtain reasonable boarding expenses pending criminal litigation. The addition of the other agencies comports with the fact that these agencies may become responsible for the impound if the animal were seized or impound- ed pursuant to a search warrant obtained under article 690 of the crimi- nal procedure law. For consistency, the term "impounding organization" is further regularized in later subsections of subdivision 6.

Section seven repeals Subdivision 8 of Section 374 of the Agriculture and Markets Law. The repealed special sentencing provisions are moved to a new section, 380.

Section eight amends the Agriculture and Markets Law by adding a new Section 382 to permit the court to order forfeiture of the animal to an animal shelter, pound, sheriff, police officer, or district attorney, in addition to a society for the prevention of cruelty to animals.

Language has been added to subdivision 3 in an effort to alleviate the constitutional cloud over the term "reasonable." The language and crite- ria is thusly elaborated: "In making its determination of what period of time is reasonable, the court shall take into account the totality of the circumstances before it and be bound to no single factor. Such order must be in writing and specifically state the period of time imposed."

Subdivision 4 of the proposed section 382 adds the term "used" in regards to scientific testing. As the language of section 374 stands presently, the absence of this term is an oversight that would permit the shelter, pound, or duly incorporated society for the prevention of cruelty to animals to experiment on the animals themselves, while prohibiting their sale or transfer for that purpose.

Section nine amends Part 3 of the Penal Law by adding a new Title Q, which is comprised of animal cruelty offenses and largely based upon the former provisions of Article 2.5 of the Agriculture and Markets Law. The Title consists of a new Article 280, which is captioned "Offenses against Animals."

Section 280.00 is introduced to the Penal Law and contains the bulk of the definitions for the proposed Article 280. Subdivision 1 is a verba- tim reproduction of subdivision 1 of section 350 of the Agriculture and Markets Law. Subdivision 2 is a reproduction of subdivision 2 of section 350 of the Agriculture and Markets Law with an important addition that serves to outsource clutter from the proposed section 280.20. This addi- tional language is based on passages from the existing section 353 of the Agriculture and Markets Law. Importantly, the definitions of "cruel- ty" and "torture," which appeared together in subdivision 2 of section 350 of the Agriculture and Markets Laws, are now severed. The definition of "torture" now appears in subdivision 4 of the proposed definitions section and derives entirely from a segment of the present definition of "aggravated cruelty," as that term currently appears in section 353-a of the Agriculture and Markets Law. Subdivision 3 is a near-verbatim reproduction of language found in subdivision 1 of section 353-a of the Agriculture and Markets Law, the only difference being the aforemen- tioned severance of verbiage which is transferred as the definition of the term "torture." Subdivision 5 is based up on subdivision 3 of section 350 of the Agriculture and Markets Law. Subdivision 6 is a near- verbatim reproduction of subdivision 4 of section 350 of the Agriculture and Markets Law. Subdivision 7 is a near-verbatim reproduction of subdi- vision 5 of section 350 of the Agriculture and Markets Law with a minor change in sequencing on the second couplet of "companion animal" or "pet." Subdivision 8 is a verbatim reproduction of language which appears in subdivision 1 of section 351 of the Agriculture and Markets Law. Subdivision 9 was composed to provide a concrete definition of "abandons" as that term is used in the proposed section 280.20 of the Penal Law. Subdivision 10 provides a definition of "restrain" and was substantially based on subdivision 1 of section 135.00 of the Penal Law. Subdivision 11 provides a definition of "abduct" and was substantially based on subdivision 2 of the section 135.00 of the Penal Law.

Section 280.05 is introduced as one of two statutes taken from section 351 of the Agriculture and Markets Law. The current section 351 of the Agriculture and Markets Law covers multiple crimes, both misdemeanors and felonies. This bill splits the conglomerate into two separate stat- utes, Section 280.05 and Section 280.10, for clarity and comprehensi- bility. Subdivision 1 of section 280.05 is based on subparagraph (e) of subdivision 2 of section 351 of the Agriculture and Markets Law. Subdi- vision 2 of section 280.05 is loosely based on subparagraph (b) of subdivision 4 of section 351 of the Agriculture and Markets Law, but modifies the measure component for clarity of what is required for commission of the offense. Section 280.10 is introduced to replace the felony components of section 351 of the Agriculture and Markets Law. It is a substantial reproduction of the statute, with few structural chang- es. Subdivision 3 of section 280.10 amends its predecessor statute with the inclusion of the word "transfers" which was a broad oversight in previous drafting. Subdivision 5 of section 280.10 is amended to remove a troublesome element involving the proof of training of the by-standing animal such animal possibly being a "bait animal" which was not trained to fight.

It is notable that, pursuant to section 160.10 of the Criminal Procedure Law, the transplant of the misdemeanor portion of animal fighting to the Penal Law causes this offense to now be a printable offense for law enforcement (the same can be said for all transplanted agriculture and markets law misdemeanors). As it currently stands, a violation of subparagraph (b) of subdivision 3 of section 351 (misdemeanor animal fighting) is not a printable offense for purposes of Article 160 of the Criminal Procedure Law, which is another major oversight in the existing legislative drafting. Finally, as crimes in the Penal Law must be clas- sified pursuant to Title E, Article 55, the misdemeanor component of animal fighting, now housed in section 280.05, is designated as a class A misdemeanor and the felony component of animal fighting, now housed in section 280.10, is designated as a class D felony. The special tine schedules, which were previously enacted for animal fighting, are retained by enacting an authorized dispositions section, contained in section 60.22 of the Penal Law.

Section 280.20 is introduced to replace various components of sections 353, 355, and 360 of the Agriculture and Markets Low. Subdivision 1 outlines the standard of care to be provided by an owner, possessor, custodian, or caregiver of an animal. The vague term "sustenance," as it appeared in section 353 of the Agriculture and Markets Law, with the un-codified case law definition on that term (i.e. "food, drink, veteri- nary care, or shelter adequate to maintain the animal's health and comfort"), provided in a litany of cases that include, but is not limit- ed to People v. Richardson, 15 Misc. 311 138A (App. Term 9th & 10th Jud. Dist. 2007) and People v. Mahoney, 9 Misc.3d 1.01 (App. Term 9th & 10" Jud. Dist. 2008). Apart from codification, the terms "food" and "drink" are replaced by the more modem concepts of "nutrition" and "hydration." The former presence of "necessary" in section 353 of the agriculture and markets law (i.e. "necessary sustenance"), is replaced with the expanded provision of adequacy. The adequacy of all four elements - nutrition, hydration, veterinary care, and shelter - is required.

Subdivision 2 is based upon section 355 of the Agriculture and Markets Law, except that duplicative language is dropped after the first clause regarding abandonment, "Abandons" is defined in the revised subdivision (9) of section 280.00.

Subdivision 3 outlines the standard of care to be applied to animals in general, regardless of personal connection, and pulls heavily on the enhanced definition of "cruelty" as it appears in subdivision 2 of the proposed section 280.00. It is a successor-clause to the existing final clause of section 353 of the agriculture and markets law. The term "willfully," however, was relaxed to "knowingly," which more clearly comports with the expansion of the term "cruelty," both as currently defined and under the proposed definition.

Subdivision 4 is based on section 360 of the Agriculture and Markets Law, with structural changes for clarity and a mental intent to injure added.

Section 280.25 is introduced to replace section 353-a of the Agriculture and Markets Law. It differs from section 353-a of the Agriculture and Markets Law in that it enhances the classification and punishment on the proscribed conduct a violation of section 280.25 is a class D felony, whereas a violation of section 353-a of the Agriculture and Markets Law is an unclassified felony with a limited sentencing range (a so-called "E Minus" felony). The section is re-titled to match its counterpart, section 280.20. The definition of the term ""aggravated cruelty," as it appears in section 280.25, appears in section 280.00, and it amended to split acts of torture from acts of cruelty. The practical effect is negligible as both definitions remain under the force of the statute.

Subdivisions 1 and 2 are based upon language in subdivision 1 of section 353a of the Agriculture and Markets Law, however, they are worded more akin to assault and homicide statutes elsewhere in the penal law. Subdivision 3 of section 280.25 proposes a sanction for acts of "aggra- vated cruelty" and "torture" committed against any animal and not just "companion animals" which is long overdue and based upon the sentiment that this law should be meant to focus on the extremely disturbing conduct of an individual and not the human emotion or affection towards the affected animal. Whether the individual sadistically tortured a wild turtle or a pet turtle, the criminal sanction on that type of behavior should be the same. Subdivision 4 is based upon provisions found in the existing section 360 of the Agriculture and Markets Law. Subdivision 5 is an additional sanction for repeat offenders of section 2130.20, modeled after statutory language which appears elsewhere in the Penal Law.

Section 280.30 is based loosely on the existing section 361 of the Agri- culture and Markets Law. The new statute is re-titled for clarity and serves to enhance the penalty for interference with competitive or exhibited animals. The term "domestic," which had no definition, was

removed as its inclusion had de minimis practicality or legal signif- icance.

Section 280.35 is introduced to subsume and rectify the constitutional problems with the existing section 362 of the Agriculture and Markets Law, The existing section 362 of the Agriculture and Markets Law, as written, effectively makes littering a misdemeanor, has an incorrectly positioned mans rea, and is not often used. Section 280.35 incorporates certain language from subdivision 7 of section 240.20 of the Penal Law to adjust for the mans rea of the statute. It also more appropriately categorizes the offense as a violation, which is intended play a crucial role in any plea bargaining of animal offenses and serve as a lesser-in- cluded offense of the various provisions of Article 280. Subdivision 1 acts as a "catch-all" provision that bridges the gap between non-culpa- bility and conduct which violates section 280.20. Subdivision 2 incorpo- rates language from section 362 of the Agriculture and Markets Law, but clarifies the mans rea, obviating constitutional concerns. As a viola- tion-level offense, a perpetrator could be subjected to fifteen days incarceration, in addition to other sentencing possibilities, the most notable of which are the special sentencing provisions in the proposed section 380 of the Agriculture and Markets Law, discussed above.

Sections 280.40, 280.45, and 280.50 are introduced to allow prosecution in the event of unlawful restraint or taking of an animal. Currently, the only other statutes designed to cover this type of conduct are the larceny provisions contained in Article 155 of the Penal Law. As society is moving away from treating pets as chattel or property, statutes need to adjust for the humanistic approach to prosecution. These sections must be read in conjunction with the definitions of "restrains" and "abducts," which are listed in the proposed section 280.00. Section 280.40 is based upon language found in section 135.05 of the Penal Law. Section 280.45 is based upon language found in section 135.20 of the Penal Law. Section 280.50 is based upon language found in 135.25 of the Penal Law. The classification of these crimes, as proposed, would great- ly enhance the penalty for such conduct. For example, currently, an individual who steals another person's adopted non-purebred dog, drives it to a faraway location, and leaves it there to die, could only be charged with petit larceny, in violation of section 155.25 of the Penal Law, and Abandonment of Animals, in violation of section 355 of the Agriculture and Markets Law. Both of those crimes are class A misdemea- nors. The proposed section 280.50 would potentially make the same conduct punishable as a class D felony.

Section 280.55 contains a presumption applicable to prosecutions of sections 280.40, 280.45; and 280.50.

Sections 280.60 and 280.65 are verbatim reproductions of the current sections 353-b and 353-d of the Agriculture and Markets Law, respective- ly.

Section 280.70 is a verbatim reproduction of the current section 367 of the Agriculture and Markets Law.

Section 280.75 is a cross-referencing tool to the evidentiary, disposi- tion, and care provisions which appear in various sections of the Agri- culture and Markets Law.

Section 280.80 is an important cross-referencing tool to ensure that the courts are empowered to sentence in accordance with the special needs of an animal cruelty prosecution.

Section ten amends the Penal Law by adding a new section 60.22 which is the vehicle by which the special fine sentencing provisions enacted for animal fighting, under the current section 351 of the Agriculture and Markets Law, survive the transfer to the Penal Law.

Section eleven amends Paragraph (c) of Subdivision 1 of Section 70.02 of the Penal Law to incorporate select provisions of the proposed "animal cruelty in the first degree," in violation of proposed Section 280.25, into the list of violent felony offenses. The excluded provisions are the aggregation offense for twice violating animal cruelty in the second degree (subdivision 5) and the aggravating-factor poisoning offense (subdivision 4).

Section twelve amends Section 195.06 of the Penal Law to enhance the offense classification and penalty for killing or injuring a police animal. A violation of this section would now be a class D felony, which comports this statute to the level of offense of Animal Cruelty in the First Degree, under the proposed section 280.25 of the Penal Law.

Section thirteen amends Section 195.11 of the Penal Law to enhance the offense classification and penalty for harming an animal trained to aid a person with a disability in the second degree. A violation of this section would now be a class A misdemeanor, which comports this statute to the level of offense of Animal Cruelty in the Second Degree, under the proposed section 280.20 of the Penal Law (or the existing offense of Overdriving, torturing and injuring animals; failure to provide proper sustenance, under section 353 of the Agriculture and Markets Law).

Section fourteen amends Section 195.12 of the Penal Law to enhance the offense classification and penalty for harming and animals trained to aid a person with a disability in the first degree. A violation of this section would now be a class D felony.

Section fifteen amends Subdivision 2 of Section 265.01 of the Penal Law by converting it to gender neutrality and adding animals as a protected class against unlawful weapon use. This will be particularly helpful for law enforcement where there is clear evidence of a beating with an instrument but, due to unfamiliarity with field examinations of animals for injury, a charge can be made upon implementation alone.

Section sixteen identifies the severability clause.

Section seventeen sets forth the effective date.

Justification

This bill markedly improves the accessibility and comprehensibility of animal crime statutes, thereby promoting enforcement of this category of crime. The bill will take patrol-scenario crimes, faced by municipal law enforcement, and structure them alongside the bulk of criminal law. By placing animal crime shoulder-to-shoulder with other categories of crime in the Penal Law, there will be a streamlining of criminal procedure, training, legal terminology, and judicial philosophy.

As the law currently stands, commercial, industrial, and patrol-scenario offenses are housed together in a body of law that has proven to be inaccessible by police. Not only is a patrol officer unlikely to have a copy of the Agriculture and Markets Law in their radio car, but the precinct desk officer is also unlikely to have a copy at headquarters. Furthermore, police academies primarily focus training on Penal Law and Vehicle and Traffic Law provisions, without any education or training whatsoever on Agriculture and Markets Law provisions.

While there may be crimes housed outside the Penal Law - for example, tax crimes there is seldom, if ever, a patrol dispatch requiring urgent response and action on a violation of the tax law - animal crimes occur in the field and often require emergency response. An ancillary benefit to that main objective will be a harmonizing of this crime with others as far as the applicability of the criminal procedure law. Matters such as search warrants, fingerprinting, collection of DNA, recordkeeping, court surcharges, and other procedural aspects of law enforcement become applicable.

Beyond the mere transplant, however, this bill modernizes statutory language and structure to more aptly match its sister crimes. Within the bill text, there is heavy borrowing from terminology and format from other areas of Penal Law. This was done not only for clarity, familiar- ity, and comprehensibility, but also so that case interpretations of terminology and structure become immediately applicable. Offenses have been re-titled for clarity and order of precedence and restructured into manageable subdivisions. Offenses have also been given appropriate and clear mental states. If there was a prevailing case law interpretation of a term, the term was codified into the statute itself in order to obviate time-wasting motion practice over the issue.

In short, the average police officer will now be able to find the law, read the law, understand the law, and apply the law all while standing at a crime scene in the middle of the night. Prosecutors and defense attorneys will spend markedly less time in needless motion practice over the definition of obsolete terms or general applicability of passages. Judges will be better equipped to dispense justice on accused individ- uals. Finally, the average member of the public will be better apprised of the standards that apply to the treatment of animals.

Legislative history

2017: S.6226 - Referred to Agriculture / A.653 - Referred to Agriculture 2016: S.3201 - Referred to Agriculture / A.352 - Referred to Agricul- ture. 2015: S.3201 - Referred to Agriculture / A.352 - Referred to Agricul- ture. 2014: S.6261 - Referred to Agriculture.

Fiscal implications

Penal Law surcharges become applicable to animal crimes offenses, poten- tially enhancing state revenue.

Effective date

This bill shall take effect on the first of November next succeeding the date on which it shall become a law.