People v. Panetta

• Decision Date: 13 December 2018
• Docket Number: 2015-2601 OR CR
• Citation: 62 Misc.3d 29,90 N.Y.S.3d 468
• Parties: The PEOPLE of the State of New York, Respondent, v. Sylvia PANETTA, Appellant.
• Court: New York Supreme Court — Appellate Term

62 Misc.3d 29
90 N.Y.S.3d 468

The PEOPLE of the State of New York, Respondent,
v.
Sylvia PANETTA, Appellant.

2015-2601 OR CR

Supreme Court, Appellate Term, New York.

Decided on December 13, 2018

Sylvia Panetta, pro se, and Richard L. Herzfeld, for appellant.

Orange County District Attorney (Andrew R. Kass of counsel), for respondent.

PRESENT: BRUCE E. TOLBERT, J.P., JAMES V. BRANDS, TERRY JANE RUDERMAN, JJ

62 Misc.3d 30

ORDERED that the matter is remitted to the City Court for a new determination of the branches of defendant's omnibus motion seeking to suppress physical evidence and statements to

62 Misc.3d 31

law enforcement officials in accordance herewith, and thereafter a report to this court advising of the new determination, and the appeal is held in abeyance in the interim. The City Court shall file its report with all convenient speed.

On March 6, 2012, the Town of Wallkill Justice Court authorized a warrant to search defendant's house and grounds at 237 Derby Road in the Town of Wallkill, New York. The warrant was executed, two of defendant's numerous dogs were seized and defendant was served with a notice to comply with the requirements of the Agriculture and Markets Law with respect to the care and sheltering of the remaining dogs. Following inspections on March 16, 2012 and April 13, 2012, when it was determined that defendant had failed to comply with the notice, multiple amended warrants issued, the last on May 16, 2012, which resulted in the seizure of all of defendant's dogs, certain of which required surgery to repair broken bones and other injuries. Other dogs, one with "a large tumor that was hanging from its mammary gland area," were euthanized shortly after being seized.

On April 30, 2012, defendant was arrested and charged with two counts of animal cruelty in violation of Agriculture and Markets Law § 353 in relation to two dogs seized during the execution of the initial search warrant. On May 29, 2012, the People charged defendant, in a superseding information, with 11 violations of Agriculture and Markets Law § 353, 55 violations of

90 N.Y.S.3d 470

Agriculture and Markets Law § 353-b (2) (a), 60 violations of Code of the Town of Wallkill ("Code") § 70-6 (A) (1), 23 violations of Code § 70-18 (B) (2), and 1 violation of Code § 249-10. Defendant moved to suppress all of the physical evidence and statements obtained in the course of the officer's initial warrantless entry onto defendant's property, as well as all of the evidence obtained pursuant to the execution of the subsequent, amended warrants, arguing that the initial entry, being without legal justification, tainted all of the evidence thereafter obtained. On May 22, 2013, the City Court granted the motion to the extent of ordering Mapp and Huntley hearings.

At the combined suppression hearing, a building contractor testified that, prior to March 6, 2012, he had spoken with defendant, at her property, to provide an estimate for repairs to her home. On March 6, 2012, he contacted the Office for the Aging and expressed his "concern[ ] with ... [defendant]." Asked if he had exhibited concern for the welfare of the dogs,

62 Misc.3d 32

he replied, "not so much for the dogs as for her." An official at the Office for the Aging testified that the contractor had informed her that defendant's home should be "condemned" and that he had observed 6 dogs in the home and 50 to 100 dogs in outdoor cages, and that "somebody has to help those dogs." She then telephoned the Wallkill Police Department "[t]o ask them to get somebody out there to check the situation out," and a police officer replied that she would send an officer to "take a look."

The investigating officer testified that, on March 6, 2012, assisted by another officer, he visited defendant's property to determine the welfare of the female occupant (defendant) and to investigate a report of nearly 100 dogs living in "unhealthy conditions" on defendant's property. Upon arriving at defendant's driveway, the officers bypassed a chain attached to a closed gate to defendant's driveway upon which was posted, according to defendant's photographic proof, a no trespassing sign. As he walked down the lengthy driveway, the investigating officer detected the strong odor of animal feces and observed dogs exhibiting injuries and other conditions requiring medical treatment. He eventually encountered defendant, who, upon understanding the purpose of the officer's presence, demanded that the officer produce a search warrant or obtain a warrant if he were to conduct further investigation. The officer departed and obtained a warrant, which was executed later the same day, and two dogs were seized. Amended warrants resulted in the seizure of numerous dogs and the gathering of evidence pertaining to defendant's alleged neglect of her dogs, including the failure to provide adequate food, shelter, and veterinary care. The officer acknowledged that he had not observed the no trespassing sign before walking down defendant's driveway and that his actual knowledge of the condition of any of defendant's dogs was first obtained on that walk.

Following the hearing, the City Court concluded that, while the officers' initial entry violated defendant's legitimate expectation of privacy, the officers' actions were justified, pursuant to the emergency exception to the warrant requirement, to determine the state of defendant's welfare and that of her dogs, and denied the suppression motion in its entirety, addressing no other issue pertinent to suppression. Defendant appeals, alleging, among other things, that the...