DECISION AND ORDER Defendant was arraigned on an accusatory instrument under docket CR-049042-18KN, charging him with five counts of Overdriving, Torturing, and Injuring Animals or Failure to Provide Proper Sustenance for Animals, Agricultural and Markets Law §353. The underlying accusatory instrument alleges that on August 28, 2018, defendant failed to properly care for five dogs he kept in his home as pets. Defendant was arraigned on a second accusatory instrument under docket CR-023327-19KN, charging him with six counts of Overdriving, Torturing, and Injuring Animals or Failure to Provide Proper Sustenance for Animals, Agricultural and Markets Law §353, and six counts of Failure to Provide Proper Food and Drink to Impounded Animals, Agricultural and Markets Law §356. The underlying accusatory instrument alleges that from November 24, 2018 to November 26, 2018, defendant failed to properly care for six other dogs he kept in his home as pets. Pursuant to the court’s decision and order dated July 30, 2018, the dockets were consolidated under docket CR-049042-18KN for trial. The defendant has moved to suppress any evidence concerning the dogs seized from his residence on or about November 26, 2018. The People consented to a hearing on defendant’s motion, and the court ordered that a Mapp hearing be held regarding the lawfulness of the seizure of the dogs alleged to be mistreated under original docket CR-023327-19KN.1 The court heard testimony on September 10, 11, and 12, 2019. At the hearing, the People offered the testimony of four witnesses: Detective Kevin Connors; Police Officer Melissa Depalma; Miriam Jimenez; and Police Officer Danny Karma. The People also placed into evidence photographs taken on November 25, 2018, of defendant’s house depicting, among other things, debris-strewn wood floors upon which lay feces, mice droppings, and decomposing mice carcasses. The defendant offered the testimony of Dr. Jeffrey Stein. Defendant also placed into evidence a photograph showing the clean condition of his music room in September 2018. The court heard arguments from the parties. Findings of Facts A. The August 28, 2018 Seizure On August 24, 2018, Police Officer Melissa Depalma received a radio run advising that a citizen reported possible animal abuse at 2200 Foster Avenue. She responded to the residence and saw a man she identified as defendant standing behind a screen door. Through the screen door, Officer Depalma observed dogs walking around; the dogs appeared to have feces on their faces and severe matting to their legs and body. Office Depalma did see dog food out, but observed the dogs moving slowly, limping, and struggling to move around. Defendant refused entry to Officer Depalma. Believing the dogs to be in danger, Office Depalma suggested that the American Society for the Prevention of Cruelty to Animals (ASPCA) come to the residence; defendant agreed and Officer Depalma scheduled a day for the ASPCA to return. Officer Depalma described the condition of the dogs to the NYPD animal unit and the ASPCA; they determined that there was no immediate need to remove the animals. On August 28, 2018, Officer Depalma returned to the residence with members of the ASPCA. Defendant let a few of the dogs out of the residence so they could be visually inspected by ASPCA members. Officer Depalma smelled the odor of feces coming from the dogs. Officer Depalma again observed that the dogs appeared to be malnourished, covered in feces, and severely matted. Defendant agreed to permit the ASPCA to remove for care the five dogs they determined to be in the most severe condition. On August 28, 2018, Detective Kevin Connors of the NYPD animal cruelty investigation squad was notified by the ASPCA that they had removed five dogs among a larger group of dogs from 2200 Foster Avenue, Kings County. Det. Connors reviewed photos of the dogs that were removed and observed severe matting and injuries below the matting of the dogs. He learned that the ASPCA made positive findings against defendant, the owner of the dogs, for neglect or maltreatment of the dogs. Det. Connors attempted to contact defendant to no avail and left several messages on defendant’s answering machine. On September 5, 2018, defendant returned the call, advising Det. Connors that he was in poor health and was having a veterinarian take care of the dogs. Det. Connors also went to defendant’s residence several times but could not get to the front door because the fence gates were secured by a padlock and prohibited entry. On September 10, 2018, Det. Connors met with defendant and was let into the residence. Det. Connors observed the remaining dogs and advised defendant that they needed to be seen by a veterinarian due to conditions that were concerning, including the urgent need for two dogs to be groomed. While in the house, Det. Connors observed that while the music room was in good condition, the first floor where the dogs were located had a lot of urine and feces on the floor. Nonetheless, Det. Connors did not seek to remove the animals then because he did not believe that the dogs were being mistreated. Rather, he believed that the conditions in which the dogs lived needed to be improved. On September 17, 2018, Det. Connors spoke to defendant’s veterinarian about one of the dogs, a black Labrador who had trouble walking, and was satisfied that the dog had been seen by the vet. Det. Connors also spoke with Dr. Reisman of the ASPCA and learned that the five dogs that had been seized had injuries below the skin that created pain and discomfort for the animals; as a result, Det. Connors concluded that he had probable cause to arrest defendant for mistreatment of the five dogs seized. In October 2018, Det. Connors and his partner went to the 2200 Foster Avenue residence. Det. Connors observed that the dogs remaining at the residence were properly groomed. Det. Connors transported defendant from the residence to the precinct. Det. Connors gave defendant an appearance ticket to return to court and answer the charge of Animals, Agricultural and Markets Law §353, alleging defendant mistreated the five dogs seized. B. The November 26, 2018 Seizure 1. November 24, 2019 On November 24, 2018, Miriam Jimenez and her sister went to defendant’s residence to meet Ken Barocas, defendant’s friend and attorney, along with Mr. Barocas’ wife. Miriam Jimenez was there to help her sister care for a couple of dogs because the owner was in the hospital. Mr. Barocas and his wife were waiting outside the residence wearing surgical masks. Mr. Barocas told them that defendant had given him the keys so that she and her sister could care for the dogs. Mr. Barocas then offered his mask to Ms. Jimenez and all four entered the residence. Upon entry, Ms. Jimenez observed that there were little dogs barking and the house was extremely cluttered and in total disrepair. The dogs had no food or water and the floor was littered with feces and urine, live and dead mice, and mice droppings. While going through the kitchen, Mr. Barocas’ wife saw mice walking by her feet and became hysterical. Ms. Jimenez noted six dogs in the house: five little dogs and a larger black dog in the back. Ms. Jimenez saw one small dog sitting on a cushion under the kitchen table. It was unresponsive and appeared to be deaf and blind. Ms. Jimenez then observed a group of other small dogs. Those dogs barked and came towards her while a mouse in the room walked towards the first little dog. The first little dog yelped as the mouse crawled over the cushion. All the little dogs were matted and had feces in their hair and nails. Ms. Jimenez noted that they gave off a terrible smelled of urine and feces. Ms. Jimenez put out food and water and the dogs started to eat immediately. Ms. Jimenez went into the back and entered an office or den area behind a closed door. There, she observed a big dog laying among boxes and panting heavily, apparently struggling for breath, with no food or water. She tried to get the dog up, but the dog’s legs were giving out. She helped the dog into the living area and gave the dog food and water. The dog immediately drank the water. This big dog was mangy and its tail was missing — Ms. Jimenez believed the big dog had bitten it off. Back outside, Ms. Jimenez expressed her concern about the house and the dogs to Mr. Barocas and asked if there was any plan going forward. Mr. Barocas got upset and told Ms. Jimenez that there was no plan. He lived in Westchester and it was too far for him to come. He said that they had all told defendant that he needed to do something with the animals. Mr. Barocas gave Ms. Jimenez the keys and left. At no point did he did ask for the keys back, ask Ms. Jimenez to leave, or give her any further instructions. Ms. Jimenez left the house that day and, out of concern for the animals, contacted a friend involved in animal rescue. After speaking with her, Ms. Jimenez told her sister to contact defendant and tell him that the dogs could not stay in the residence because there was no one to feed or take care of them. Ms. Jimenez stated that her sister did call defendant when he was in the hospital, but it is not clear when her sister called or what was said. 2. November 25, 2019 On November 25, 2018, Ms. Jimenez and her sister returned to defendant’s residence. Using the keys that Mr. Barocas had given them, they entered the residence. Ms. Jimenez again put down fresh food and water for the dogs. Ms. Jimenez observed the same conditions as the previous day. Believing that the conditions constituted animal cruelty, she went to the precinct and described what she had seen; the police sergeant said he would send a patrol vehicle. Officer Danny Karma and his partner arrived at defendant’s residence and were approached by Ms. Jimenez and her sister. Ms. Jimenez told Officer Karma that neither she nor her sister lived in the house, but that she had keys and was there to tend to the dogs. She asked Officer Karma to come into the house to check on the condition of the animals. Ms. Jimenez unlocked the door to the residence with a key and let Officer Karma inside. Upon entering, Officer Karma, encountered a horrible smell. He saw clutter in the kitchen and observed two small dogs underneath the kitchen table. One of the dogs had an impairment in the left eye; neither dog looked like it had been groomed nor taken care of in a while. In the living room, Officer Karma observed more clutter, numerous dog and mice droppings, and urine stains. While going through the house, Officer Karma saw mice and mice remains. He also came upon a large black dog that could not move. On the staircase were two ungroomed dogs with feces attached to their fur. Based upon his observations, Officer Karma concluded that the dogs needed to be removed from the residence. Officer Karma contacted the ASPCA and the NYPD ASPCA liaison “Mike” responded to the residence; he was let into the residence by Ms. Jimenez. Officer Karma and Mike determined that they would return the next day to remove the dogs — neither the ASPCA nor the NYPD had the resources to remove the dogs that day. Ms. Jimenez cleaned up a little, put down some wee-wee pads, left food and water for the dogs and left for the day.2 Officer Karma did not initially know that defendant was in the hospital but found out later that day. No police officer contacted defendant in the hospital at that time. 3. November 26, 2019 On November 26, 2018, Ms. Jimenez, her sister, Officer Karma, and the ASPCA liaison Mike returned to the residence with additional members of the ASPCA. Ms. Jimenez let members of the ASPCA into the residence. Ms. Jimenez observed the ASPCA members examine the six remaining dogs, remove them, and load them into their truck. The dogs were taken to an animal hospital. After Officer Karma and the ASPCA left, Ms. Jimenez locked the door and gate of the house. She then told her sister to give defendant back his keys. Officer Karma did not seek a search warrant to enter the home on either day because he had observed the dogs in “plain sight” the prior day after he was allowed into the residence and he believed that Ms. Jimenez “was the custodian of the animals that day.” On November 27, 2018, Det. Connors was notified that defendant was hospitalized and that the persons defendant had asked to check up on the dogs had called the local precinct to have the remaining dogs removed. Det. Connors subsequently reviewed the ASPCA paperwork for this second set of dogs removed from the residence, conferred with the ASPCA, and determined to charge defendant with Agricultural and Markets Law §356 as a result of defendant’s failure to provide adequate food and shelter for the second set of dogs. Det. Connors contacted the defendant’s attorney and agreed upon the date of May 29, 2019, for the defendant to be arrested in relation to the second group of dogs.3 That day, defendant was issued an appearance ticket to return to court and answer the charge of Animals, Agricultural and Markets Law §356 alleging defendant failed to properly feed the second set of dogs seized by the ASPCA.4 C. Defendant’s Witness Dr. Jeffrey Stein is a solo practitioner veterinarian with an office in Brighton Beach, New York. He has been practicing veterinary medicine for almost 40 years, specializing in the health of small animals, primarily dogs and cats. Dr. Stein has known defendant since about 1990. He has taken care of defendant’s dogs on multiple occasions. Dr. Stein had no records with him and was unable to recall specific treatments or examinations he performed on the defendant’s dogs. He stated that some of the dogs had ear infections and periodontal disease. He recalled examining defendant’s large black Labrador dog in his office four to six months prior to November 26, 2018 seizure. At that time, the dog was limping and in pain, but appeared happy. Dr. Stein didn’t recall exactly when he saw any of defendant’s other dogs, but did recall grooming several of defendant’s dogs before they were seized. Dr. Stein remembered getting a call from a detective in August 2018, who advised Dr. Stein that several dogs had been seized from defendant, some of whom had medical conditions and one of whom was pregnant. He also recalled that at the time of the August seizure, two of defendant’s dogs were in his office for grooming, but he was unsure which ones. Dr. Stein testified that defendant’s dogs typically took additional time to groom because they were not groomed regularly, and their fur was often matted. Dr. Stein stated there was one occasion where defendant brought in a dog that Dr. Stein did not want to return to defendant, but defendant refused to leave the dog. On a subsequent occasion, with a different puppy, Dr. Stein told defendant that the puppy had died because he did not believe defendant would be able to care for it; Dr. Stein rehomed the puppy elsewhere. Conclusions of Law Regarding the merits of the hearing, having observed the testimony of the five witnesses, the court finds their testimony credible. The testimony of witnesses Detective Connors, Officer Depalma, and Dr. Stein, however, is of limited value to the issue of the seizure of the dogs on November 26, 2018; none of these three witnesses made recent enough observations of the dogs to assist the court in its determination of the legality of the search. The court, therefore, primarily relies on the testimony of Ms. Jimenez and Officer Karma. Initially, the court notes that when the issue is suppression of physical evidence, the People have the initial burden of going forward to show the legality of the police conduct. The defense then has the burden of proving that the search was unlawful by a preponderance of the evidence (People v. Berrios, 28 NY2d 361 [1974]). Moreover, police officers “may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury” (Brigham City v. Stuart, 547 US 398, 403 [2006]; see Michigan v. Fisher, 558 US 45, 48 [2009]; People v. Mitchell, 39 NY2d 173, 177 [1976]). This emergency doctrine also applies to the protection of animals (see People v. Rogers, 184 Misc 2d 419, 420 [2d Dept 2000] [extending emergency doctrine to protect animals in danger]; People v. Roundtree, 54 Misc 3d 442, 449, [Town of Greece Justice Ct 2016] ["[t]he adoption of the arrest and search powers of humane society officers demonstrates the legislature’s intent to recognize animals as living beings, if not valuable property, to be protected”]). Furthermore, it is well settled that, “the police may lawfully conduct a warrantless search when they have obtained the voluntary consent of a party who possesses the requisite degree of authority and control over the premises or personal property in question” (People v. Cosme, 48 NY2d 286, 290 [1979]; see Payton v. New York, 445 US 573, 576 [1980]). Moreover, “[e]ven in the absence of a warrant, police may lawfully search a residence where an inhabitant with apparent authority to consent to the search freely and voluntarily does so” (People v. Grillo, 128 AD3d 1103, 1104 [3d Dept 2015] [internal citations omitted]). “[T]he apparent authority of a third party to consent to a search of a suspect’s personal effects must rest upon the police officer’s reasonably held factual interpretation of the circumstances; it cannot be based on a mistaken view of the law” (People v. Gonzalez, 88 NY2d 289, 295 [1996]). “[A] warrantless search will not be justified merely upon a bald assertion by the consenting party that they possess the requisite authority” (People v. Adams, 53 NY2d 1, 9-10 [1981]) Nor may the police proceed without making some inquiry into the actual state of authority when they are faced with a situation which would cause a reasonable person to question the consenting party’s power or control over the premises or property to be inspected (Adams, 53 NY2d at 10). Regarding the police entry into defendant’s residence on November 25, 2018, the court first finds that Officer Karma entered defendant’s home without a warrant to render immediate aid to the dogs that Ms. Jimenez advised him were in danger and being mistreated. Further, the court finds that Officer Karma reasonably believed that Ms. Jimenez, as caretaker for the dogs, had authority and control over the premises to consent to a search on that day. Officer Karma responded to defendant’s residence and was met by Ms. Jimenez. She stated that she and her sister were there to tend to the dogs in the house because the owner was not there; Officer Karma did not simply rely on this assertion, but observed that Ms. Jimenez had keys to the residence and had told him about her previous observations of the home. Under ordinary circumstances, Officer Karma should have made further inquiries to ascertain whether Ms. Jimenez had the proper authority to consent to a search of the home. Given the immediate risk of harm to the dogs that Officer Karma believed was present, however, it was reasonable for him to rely on the apparent authority of Ms. Jimenez (id.). Indeed, Officer Karma did not learn that defendant was in the hospital until later that day, and could not be expected to begin an investigation into defendant’s whereabouts before checking on the wellbeing of the dogs. Accordingly, Officer Karma had a proper basis to make a warrantless search of the residence on November 25, 2018 (see People v. Dean, 46 AD3d 1229, 1231 [3d Dept 2007] [trooper's belief that the nephew, as the caretaker of the property, had authority to consent to the search of a rental unit that was supposed to be vacant was reasonable]; People v. Lancaster, 143 AD3d 1046, 1050 [3d Dept 2016] [defendant's brother, authorized by defendant to come and go in defendant's home in order to clean up, provide defendant's children with their belongings, and remove defendant's personal property should defendant lose his home possessed the requisite authority to consent to a limited scope search of the home]). The court, however, declines to extend either the emergency doctrine or the third-party consent exceptions to the police entry into defendant’s home on November 26, 2018; that day, Officer Karma neither entered the home to render emergency assistance nor had a reasonable belief that Ms. Jimenez had authority to consent to a search of the home. Having learned the prior day that defendant was in the hospital and that the ASPCA did not believe that the risk to the dogs was dire enough to warrant immediate removal, Officer Karma took no action. He simply relied on his erroneous belief that he could re-enter the home because the dogs were in “plain view.” Prior to the return to the home and seizure of the remaining six dogs, Officer Karma could have, and indeed, should have, either obtained defendant’s consent or obtained a search warrant for the search of the home. Accordingly, the court finds that the People have failed to meet their initial burden of lawful seizure, and suppression must be granted. Therefore, for the foregoing reasons, defendant’s motion to suppress is granted to the extent that the People are precluded from presenting any evidence concerning the dogs seized from defendant’s residence on November 26, 2018. Thus, Officer Karma’s and the ASPCA liaison Mike’s observations of the living conditions of the animals at the time of the initial entry, i.e., November 25, 2018, are admissible as evidence at trial; however, any photographs taken by Officer Karma or the ASPCA on or after November 25, 2018 are not. The foregoing constitutes the Decision and Order of the court. Dated: September 30, 2019 Kings County, New York
