S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 445--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2015
                               ___________

Introduced  by Sen. GALLIVAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Agriculture  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend  the  agriculture and markets law, in relation to the
  seizure of animals

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 373 of the agriculture and markets law, as added by
chapter  545  of the laws of 1971, subdivisions 1, 2 and 3 as amended by
chapter 79 of the laws of 1997, subdivision 1-a as added by chapter  811
of the laws of 1981, subdivision 5 as amended by section 23 and subpara-
graph 2 of paragraph b of subdivision 6 as amended by section 24 of part
T  of chapter 59 of the laws of 2010, subdivisions 6 and 7 as amended by
chapter 256 of the laws of 1997 and paragraph a and  subparagraph  1  of
paragraph  b  of  subdivision 6 as amended by chapter 531 of the laws of
2013, is amended to read as follows:
  S 373. Seizure  of  animals  lost,  strayed,  homeless,  abandoned  or
improperly  confined  or kept. 1. Any police officer or agent or officer
of the American Society for the Prevention of Cruelty to Animals or  any
duly  incorporated society for the prevention of cruelty to animals, may
lawfully take possession of any lost,  strayed,  homeless  or  abandoned
animal found in any street, road or other public place.
  1-a.  Any  police officer in Lewis county may lawfully take possession
of any lost, strayed, homeless or abandoned domestic animal, as  defined
in  section one hundred eight of this chapter, found in any street, road
or other public place.
  2. Any such police officer or agent or officer may also lawfully  take
possession  of  any  animal in or upon any premises other than a street,
road or other public place, which (A) for more  than  twelve  successive

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD01365-04-5

S. 445--A                           2

hours  has  been confined or kept in a crowded or unhealthy condition or
in unhealthful or unsanitary surroundings or (B) HAS not  BEEN  properly
cared  for,  INCLUDING,  BUT  NOT  LIMITED TO THE PROVISION OF NECESSARY
SHELTER,  VETERINARY, FARRIER AND OTHER SPECIES- OR BREED-SPECIFIC CARE;
or [without] (C) FOR MORE THAN TWELVE  SUCCESSIVE  HOURS  HAS  NOT  BEEN
PROVIDED  WITH  necessary  sustenance,  food  or  drink, provided that a
complaint stating just and reasonable grounds  is  made  under  oath  or
affirmation  to  any magistrate authorized to issue warrants in criminal
cases, and that such warrant authorizing entry and search is issued  and
delivered by such magistrate; if just and reasonable cause is shown, the
magistrate  shall  immediately issue such warrant.  FURTHER, THE WARRANT
SHALL PROVIDE THAT, WHERE ANY ANIMAL IS SEIZED FROM A PERSON BASED  UPON
NONCOMPLIANCE  WITH THE STANDARDS OF CARE SET FORTH IN THIS SUBDIVISION,
THE POLICE OFFICER, AGENT OR OFFICER MAY TAKE POSSESSION  OF  ANY  OTHER
ANIMAL OR ANIMALS IN THE CUSTODY OR CONTROL OF SUCH PERSON FROM WHOM THE
ANIMAL  IS  SEIZED.  THE PERSON FROM WHOM ANIMALS ARE SEIZED PURSUANT TO
THIS SUBDIVISION MAY PETITION THE  COURT,  UPON  SEIZURE,  OR  WITHIN  A
REASONABLE  TIME  THEREAFTER,  FOR  A  RETURN  OF  THE  SEIZED ANIMAL OR
ANIMALS. A HEARING ON SUCH PETITION SHALL BE CONDUCTED WITHIN TEN  BUSI-
NESS  DAYS  OF  SUCH  PETITION.  THE PETITIONER SHALL HAVE THE BURDEN OF
PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT THERE  WAS  NO  PROBABLE
CAUSE  FOR THE SEIZURE OF SUCH ANIMAL OR ANIMALS SEIZED PURSUANT TO THIS
SUBDIVISION. NO ANIMAL OR ANIMALS SEIZED PURSUANT  TO  THIS  SUBDIVISION
MAY  BE  RETURNED TO THE OWNER OR PERSON FROM WHOM THE ANIMAL OR ANIMALS
WERE SEIZED UNTIL SUCH HEARING HAS BEEN CONDUCTED.
  3. Any such police officer or agent or officer may also lawfully  take
possession  of  any  unwanted  animal  from  the person in possession or
custody thereof.
  4. When any person arrested is, at the time of such arrest, in  charge
of  any  animal or of any vehicle drawn by or containing any animal, any
agent or officer of said society or societies or any police officer  may
take  charge  of  such  animal and of such vehicle and its contents, and
deposit the same in a safe place or custody, or deliver  the  same  into
the  possession  of the police or sheriff of the county or place wherein
such arrest was made, who shall thereupon assume  the  custody  thereof;
and  all  necessary  expenses incurred in taking charge of such property
shall be a charge thereon.
  5. Nothing herein contained  shall  restrict  the  rights  and  powers
derived  from  section one hundred seventeen of this chapter relating to
seizure of unlicensed dogs and the disposition to be made of animals  so
seized or taken, nor those derived from any other general or special law
relating  to  the seizure or other taking of dogs and other animals by a
society for the prevention of cruelty to animals.
  6. a. If any animal is seized and impounded pursuant to the provisions
of this section, section three hundred fifty-three-d of this article  or
section  three hundred seventy-five of this article for any violation of
this article, upon arraignment of charges, or within a  reasonable  time
thereafter,  FOR ONE OR MORE OF THE ANIMALS SEIZED the duly incorporated
society for the prevention of cruelty to animals, humane society, pound,
animal shelter or any authorized agents thereof, hereinafter referred to
for the purposes of this section as the "impounding  organization",  may
file  a  petition with the court requesting that the person from whom an
animal is seized or the owner of the animal be ordered to post a securi-
ty. The district attorney prosecuting the charges may  file  and  obtain
the  requested  relief  on  behalf  of  the  impounding  organization if
requested to do so by the impounding organization.   The security  shall

S. 445--A                           3

be in an amount sufficient to secure payment for all reasonable expenses
INCURRED  SINCE  THE  DATE OF SEIZURE AND expected to be incurred by the
impounding organization in caring and providing for [the animal] ALL THE
ANIMALS SEIZED pending disposition of the charges FOR ONE OR MORE OF THE
ANIMALS  SEIZED.  Reasonable  expenses shall include, but not be limited
to, estimated medical care and boarding of the SEIZED animal OR  ANIMALS
for  at  least thirty days. The amount of the security, if any, shall be
determined by the court after taking into consideration all of the facts
and circumstances of the case including, but not limited to  the  recom-
mendation  of the impounding organization having custody and care of the
seized animal OR ANIMALS and the  cost  of  caring  for  the  animal  OR
ANIMALS.  If a security has been posted in accordance with this section,
the impounding organization  may  draw  from  the  security  the  actual
reasonable  costs  to be incurred by such organization in caring for the
seized animal OR ANIMALS.
  b. (1) Upon receipt of a petition pursuant  to  paragraph  a  of  this
subdivision  the  court  shall  set  a  hearing  on  the  petition to be
conducted within ten business days of the filing of such  petition.  The
petitioner  shall  serve  a true copy of the petition upon the defendant
and the district attorney if the district attorney  has  not  filed  the
petition  on behalf of the petitioner. The petitioner shall also serve a
true copy of the petition on any interested person. For purposes of this
subdivision, interested person shall mean  an  individual,  partnership,
firm,  joint  stock  company, corporation, association, trust, estate or
other legal entity who the court determines may have a pecuniary  inter-
est  in  the animal which is the subject of the petition. The petitioner
or the district attorney acting on behalf of the petitioner, shall  have
the burden of proving by a preponderance of the evidence that the person
from  whom  the  animal was seized violated a provision of this article.
The court may waive for good cause shown the posting of security.
  (2) If the court orders the posting of a security, the security  shall
be  posted  with the clerk of the court within five business days of the
hearing provided for in subparagraph one of this  paragraph.  The  court
may  order  the  immediate forfeiture of the seized animal OR ANIMALS to
the impounding organization if the person ordered to post  the  security
fails  to  do  so.  Any  animal  forfeited  shall  be made available for
adoption or euthanized subject to subdivision  seven-a  of  section  one
hundred  seventeen of this chapter or section three hundred seventy-four
of this article.
  (3) In the case of an animal other than a companion animal or pet,  if
a  person  ordered  to  post  security fails to do so, the court may, in
addition to the forfeiture  to  a  duly  incorporated  society  for  the
prevention  of cruelty to animals, humane society, pound, animal shelter
or any authorized agents thereof, and subject  to  the  restrictions  of
sections  three  hundred fifty-four, three hundred fifty-seven and three
hundred seventy-four of this article, order the  animal  which  was  the
basis  of  the  order  to  be sold, provided that all interested persons
shall first be provided the opportunity to redeem their interest in  the
animal  and to purchase the interest of the person ordered to post secu-
rity, subject to such conditions  as  the  court  deems  appropriate  to
assure  proper care and treatment of the animal. The court may reimburse
the person ordered to post security and any interested persons any money
earned by the sale of the animal  less  any  costs  including,  but  not
limited  to, veterinary and custodial care. Any animal determined by the
court to be maimed, diseased, disabled or infirm so as to be  unfit  for
sale  or  any  useful  purpose shall be forfeited to a duly incorporated

S. 445--A                           4

society for the prevention of cruelty to animals or a duly  incorporated
humane  society  or  authorized  agents  thereof,  and  be available for
adoption or shall be euthanized subject to section three hundred  seven-
ty-four of this article.
  (4) Nothing in this section shall be construed to limit or restrict in
any  way the rights of a secured party having a security interest in any
animal described in this section. This section expressly does not impair
or subordinate the rights of such a secured  lender  having  a  security
interest in the animal or in the proceeds from the sale of such animal.
  c.  In no event shall the security prevent the impounding organization
having custody and care of the animal OR ANIMALS from disposing  of  the
animal OR ANIMALS pursuant to section three hundred seventy-four of this
article  prior to the expiration of the thirty day period covered by the
security if the court makes a determination of the charges  against  the
person from whom the animal OR ANIMALS was OR WERE seized prior thereto.
Upon  receipt  of a petition from the impounding organization, the court
may order the person from whom the animal OR ANIMALS was OR WERE  seized
or  the  owner  of  the animal OR ANIMALS to post an additional security
with the clerk of the court to secure payment of reasonable expenses for
an additional period of time pending a determination by the court of the
charges against the person from whom the animal OR ANIMALS was  OR  WERE
seized.  The person who posted the security [shall be entitled to a] MAY
MAKE  APPLICATION  TO THE COURT FOR A refund of the security in whole or
part for any expenses not incurred by such impounding organization  upon
adjudication of the charges. The person who posted the security shall be
entitled to a [full] refund of the security, [including reimbursement by
the  impounding  organization  of  any amount allowed by the court to be
expended] SOLELY TO THE EXTENT THAT THE REASONABLE EXPENSES PAID  THERE-
FROM  BY THE IMPOUNDING ORGANIZATION EXCEED THE REASONABLE EXPENSES THAT
WOULD HAVE BEEN INCURRED HAD THE SEIZURE NOT OCCURRED, and the return of
the animal OR ANIMALS seized and impounded upon acquittal  or  dismissal
of  [the]  ALL  charges, except (A) where the dismissal is based upon an
adjournment in contemplation of dismissal pursuant to section 215.30  of
the  criminal  procedure  law  OR  (B)  WHERE THE PERSON IS CHARGED WITH
VIOLATIONS OF THIS ARTICLE CONCERNING MORE THAN ONE ANIMAL, AND IS FOUND
GUILTY, BY PLEA OR OTHERWISE, OF ANY VIOLATION OF THIS ARTICLE REGARDING
ANY ANIMAL. The court order  directing  such  refund  and  reimbursement
shall  provide  for payment to be made within a reasonable time from the
acquittal or dismissal of charges.
  7. Notwithstanding any other provision of this section to the  contra-
ry,  the  court  may  order  a person charged with any violation of this
article to provide necessary food,  water,  shelter  and  care  for  any
animal  which  is  the  basis  of the charge, without the removal of the
animal from its existing location, until the charges against the  person
are  adjudicated.   [Until] UPON APPLICATION TO THE COURT, UNTIL a final
determination of the charges is made, any law enforcement officer, offi-
cer of a duly incorporated society for  the  prevention  of  cruelty  to
animals,  or  its  authorized  agents,  [may] SHALL be authorized [by an
order of the court] to make [regular] SPORADIC,  UNANNOUNCED  visits  to
where  the  animal is being kept to ascertain if the animal is receiving
necessary [food, water, shelter and] care IN ACCORDANCE WITH SUBDIVISION
TWO OF THIS SECTION. Nothing shall prevent any law enforcement  officer,
officer  of a duly incorporated society for the prevention of cruelty to
animals, or its authorized agents, from applying for a warrant  pursuant
to  this  section  to  seize any animal being held by the person charged
pending the adjudication of the charges if it  is  determined  that  the

S. 445--A                           5

animal  is  not receiving [the] necessary [food, water, shelter or] care
IN ACCORDANCE WITH SUBDIVISION TWO OF  THIS  SECTION.  NOTHING  IN  THIS
SUBDIVISION  SHALL  BE INTERPRETED AS PERMITTING THE RETURN OF AN ANIMAL
SEIZED  PURSUANT TO SUBDIVISION TWO OF THIS SECTION WITHOUT A HEARING AS
REQUIRED UNDER SUCH SUBDIVISION.
  S 2. This act shall take effect immediately.