People v Dellecave
Annotate this CaseDecided on April 18, 2005
District Court of Nassau County, First District
THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff(s)
against
Douglas Dellecave, Defendant
NA 1557/05
Denis Dillon, District Attorney
Douglas Dellecave, pro se
Sondra K. Pardes, J.
DECISION AFTER TRIAL
The defendant herein is charged with violating three provisions of the Environmental Conservation Law. Specifically he is charged with (1) violating the provisions of the permit issued to him by the New York State Department of Environmental Conservation, in violation of 6 NYCRR 182.5 (b)(5). In addition he is charged with (2) the unauthorized possession of an endangered and threatened species and (3) with the unauthorized sale of an endangered and threatened species in violation of 6 NYCRR 5 (b) (1) and (2).
FACTS OF THE CASE
The defendant operates a business known as D & J Reptiles located at 1047 Hicksville Road in the County of Nassau. He was issued a NYS Fish and Wildlife License for "Endangered/Threatened Species", License No.ESP04-0039, by the NYS Department of Environmental Conservation. The license provide in pertinent part that:
The licensee may possess, transport, import and export
the following legally obtained animals for exhibition
or educational purposes: two (2) American Alligators
(Alligator Mississippiensis), one (1) Nile Crocodile and
two (2) Eastern Indigo Snakes (Drymarchon Coraes Couperi).
On December 17, 2004 an Environmental Conservation Police Officer ("ECPO") went to a night club located at 2686 Hempstead Turnpike in response to a report that there was an alligator on the premises. When the ECPO arrived she found an alligator in a tank labeled "D & J Reptiles"
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The ECPO went to the defendant's business address, on December 20, 2004 and served him with a Simplified Information charging him with a "violation of permit To Witt: (sic) Special License." While she was at the defendant's store the ECPO observed another animal on the premises which she later determined to be an endangered species not covered by the defendant's license. The ECPO returned to the defendant's premises on December 27, 2004 and served him with two additional Simplified Informations charging him with possessing a "Caiman w/out permit" and "Sale of Threatened and Endanger Species to Witt Camin (sic)".
TRIAL TESTIMONY
The ECPO, Officer Hutton, testified with respect to her training and expertise. She stated that she has an Associates Degree in "forest recreation" and a Bachelors degree in "resource management, with a focus in water" from SUNY School of Environmental Science and Forestry. Prior to becoming an ECPO she attended a "six month in-house academy at Oswego" where she studied "Environmental Conservation Law, CPL, Penal Law, defense tactics, weapons handling, emergency vehicle operation and hazardous waste."
With respect to the instant case ECPO Hutton stated that on December 17, 2004 she went to a night club located at 2686 Hempstead Turnpike in response to "a complaint on an alligator" that was reported by a town building inspector. When she arrived at the club she found an alligator on the premises. The People submitted a copy of an illustration from "The Smithsonian Handbook, Reptiles and Amphibians", by Mark O'Shea and Tim Halleday. ECPO Hutton identified the illustration, of an "American Alligator" (People's Exhibit 1). Officer Hutton stated that this picture was not a "fair and accurate description" of the animal in question because the alligator in the club was much smaller, between 2 and 4 feet long. ECPO Hutton stated that she has "some expertise" with respect to these animals in that she has seen one in her life. Officer Hutton spoke to the manager of the club who showed her a copy of the permit issued to Douglas Dellecave, but Mr. Dellecave was not present when the ECPO was at the club.
ECPO Hutton went to the defendant's business, D & J Reptiles, on December 20, 2004, where she issued the defendant a simplified ticket for violating his permit. Referring to the defendant's license she stated that he had violated subsection C: "The listed species may not be released into the wild, transferred or sold in New York State".
Officer Hutton testified further that she walked around the store and saw "what appeared to be two alligators in one tank." She stated that the defendant's permit allowed him to have one Nile Crocodile and two American Alligators. She asked him if he had three alligators and he said "I have two alligators...this one species here is a Dwarfed Caiman." ECPO Hutton then identified a copy
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of another page from the Smithsonian Handbook (People's Exhibit 2) with illustrations of 3 animals. She identified the illustration labeled "Cuvier's Dwarf Caiman" as being "consistent with the animal that I saw at D & J Reptiles". She further testified as to characteristics of the "Dwarfed Caiman" as having a "saw tooth pattern on the tail, a pointy nose and a protruding neck".
Officer Hutton stated that after she left the defendant's store on December 20th she researched the "Dwarfed Caiman". She stated that she called the individual in charge of the special license unit in Albany and told him that the owner of D & J Reptiles "did, in fact, state that he had a Dwarfed Caiman." She was advised that under New York State Law the defendant needed a permit for such an animal.
ECPO Hutton returned to the defendant's store on December 21st "to look at the Dwarfed Caiman again" and discovered that it was gone. She stated that the defendant told her he had sold it on December 20th and stated that "it was not a Dwarfed Caiman, it was a Caiman Lizard." ECPO Hutton identified a copy of a page from the Smithsonian Handbook depicting a Guinan Caiman Lizard (People's Exhibit 3) as "the animal that the defendant claimed he sold the day before". She stated that this illustration was not consistent with the animal she had seen on December 20th.(All three of the People's Exhibits were admitted into evidence on consent).
Officer Hutton testified that the defendant did not have any documentation with respect to the sale of the animal in question. Hutton stated that she returned to the defendant's store on December 27, 2004 and issued two tickets, "one for the sale of the Caiman, one for the possession of a Caiman without a permit."
On cross examination ECPO Hutton acknowledged that when she went to the night club on December 17, 2004 it was not open to the general public. ECPO Hutton also acknowledged that on December 20,2004, she observed a number of animals in the defendant's store and that she could not distinguish the difference between a number of animals she saw.
The defendant testified that he owns and operates a store located at 1047 Hicksville Road, where he sells reptiles. He testified that he has permits from the NYS Fish and Wildlife Agency for the possession of certain animals. He also testified that he has other animals for which permits are not required.
With respect to the Simplified Information issued on December 20,2004, the defendant stated that he did not violate his permit. The permit in question, (Defendant's Exhibit A) provides that he is allowed to "exhibit" the animals listed therein. He stated that he agreed to exhibit one of his American Alligators at the night club in order to draw attention to the club and to his business. He transported the animal to the club in a locked tank on December 16, 2004. He stated that he was always present at the club 30 minutes to an hour prior to the time it opened to the public at 10:00 pm,
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and stayed until 4:00 am the following day. He stated he received a call from ECPO Hutton on December 18, 2004 and she told him to remove the alligator from the club. He stated that he went to the club on the morning of December 19, 2004 and brought the alligator back to his store. When ECPO Hutton came to his store on December 20, 2004 both American Alligators were on the premises. One alligator was in a tank with the Nile Crocodile. The other alligator was in a tank with a Caiman Lizard.
The defendant testified that the illustrations introduced by the People (People's Exhibit 1, 2 &3) were "not very good". He stated that when the Caiman Lizard has its mouth closed it looks "very similar" to an American Alligator and they can "absolutely" be mistaken for each other.
The defendant stated that whenever he sells an "endangered"animal he always requires the purchaser to provide a permit number and demands to see a license. He did not do this when he sold the Caiman Lizard because it is not an endangered species. The only document he has to document such a sale is a register receipt.
On cross examination, with respect to the first charge, the defendant stated that the alligator's cage was locked at all times when the night club was open to the public and that he or one of his employees was always present.
The defendant was questioned about his "formal training" in working with animals. He stated that he had worked at the Bronx Zoo and that he has worked with reptiles everyday for the past 17 years. He also testified that he considers himself an expert with respect to reptiles and that he breeds rare and exotic animals for a living and sells animals to zoos. The defendant stated that with respect to December 20th meeting with the ECPO he told her he had a "Caiman Lizard" in the tank and not a "Dwarfed Caiman".
The defendant also stated that when the ECPO questioned him about the large reptiles in the tanks on December 20, 2004 "she said, "why is there two there and two there? ...she heard the word 'Caiman' and assumed right away that it was a Caiman Crocodilian". He testified that he told her that one tank had an American Alligator and a Nile Crocodile and the other tank had "Another American Alligator and a Caiman Lizard ... were a person to look at a Caiman Lizard you can very easily mistaken that as a crocodilian, it looks a lot like one".
DISCUSSION
With respect to the first charge, a violation of 6 NYCRR 182.5(b)(5), the People maintain that the defendant violated the provisions of his permit by "allowing employees and others to possess his animal without him around"and "transferring possession of the animal to another location without him being there."
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6 NYCRR 182.5 sets forth rules pertaining to "alligators, caiman and crocodile". Section (b)(5) specifically provide that it shall be unlawful for any person to:
(5) violate the terms of provisions of any registration
or permit issued pursuant to this section.
The defendant's NYS Fish and Wildlife License, (Defendant's Exhibit 5), provides, in pertinent part, that the licensee may possess and transport the animals listed therein including 2 American Alligators, "for exhibition or educational purposes". It states that the licensee "must provide housing, holding and/or transport facilities" designed to ensure that the animals cannot escape or pose a threat to the public. "The listed animals must be held, transported, housed, caged and displayed in a manner so that they do not come in contact with the public at any time."
The testimony at trial established that the defendant transported the alligator in question to a club located at 2628 Hempstead Turnpike on December 16, 2004, for the purpose of exhibiting the animal. The ECPO confirmed that the alligator was in a locked tank when she arrived at the club on December 17, 2004, and the club was not open to the public at that time. The defendant testified that during the time the alligator was at the premises, he, or one of his employees, was always present when the club was open to the public; the tank was never unlocked when the public was present and the alligator was never removed from the tank. He stated that he or his employee opened the tank to clean or maintain it only when the club was closed to the public.
The Court finds that the defendant's license clearly permits him to "transport" the animals named therein for the purpose of "exhibition" provided that the animals are "held, transported, housed, caged and displayed in a manner so that they do come in contact with the public at any time." The court finds that there was no evidence presented to support the charge that the defendant violated the terms of his license in any way.
With respect to the charges of possession of a caiman without a permit in violation of 6 NYCRR 182.5(b)(1) and sale of a threatened and endangered species in violation of ECL §11-0535(2), the People concede that in order to find the defendant guilty of these charges the court must find that they have proven, beyond a reasonable doubt, that the defendant possessed and sold a "Dwarf Caiman".
The Rules and regulations of the State of New York with respect to Endangered and Threatened Species of Fish and Wildlife are found in 6 NYCRR Part 182. 6 NYCRR 182.5 articulates "Special rules" with respect to: "alligator, caiman and crocodile (order Crocodylia)". 6 NYCRR 182.5(b) prohibits the possession or sale of these animals without a permit issued by the NYS Department of Environmental Conservation. The Simplified Informations issued to the defendant herein on December 27, 2004, charged him with possession and sale of a "caiman" without a permit. New York State's code, 6 NYCRR 182.1, specifically references the Code of
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Federal Regulation, 50 CFR§17 to enumerate and identify "Endangered and Threatened Wildlife". Under the designation for "Caiman" there are several species of Caiman "Crocodilus". There is no mention of a "Dwarf Caiman". However, it is clear to the court, based on a reading of 6 NYCRR 182.1, 182.5 and 50 CFR §17, that the word "caiman" used in 6 NYCRR 182.5 refers to the species "Caiman Crocodilus". Accordingly the court must determine whether the defendant possessed and sold a Caiman Crocodilus, an endangered species, for which a NYS permit is required.
Officer Hutton testified that the defendant told her that he had a "Dwarfed Caiman" in the tank with the alligator. The ECPO did not provide a photograph of the animal that she observed at the defendant's store. The People introduced an illustration from a handbook as evidence of what the ECPO officer allegedly saw. ECPO Hutton testified as to the "characteristics of the Dwarfed Caiman"; to wit: "brown in color, it has saw tooth pattern on the tail, it has a pointy nose and ...a protruding neck." However, ECPO Hutton did not testify that she had any training, much less expertise, with respect to reptiles. In fact she acknowledged that she was unable to tell the difference between the American Alligator and the animal she later identified as the "Dwarfed Caiman". "I walked around the store and I saw what appeared to be two alligators in one tank." She testified that after she left the defendant's store on December 20, 2004, she "researched Dwarfed Caiman" and called the individual in charge of the special license unit in Albany and learned that NYS Law requires a permit for a caiman.
The defendant, on the other hand, testified that he has had extensive training with respect to reptiles. He worked at the Bronx Zoo and he has worked with reptiles everyday for 17 years. He breeds rare animals for a living and sells animals to zoos. The defendant denied that he told the ECPO that he had a "Dwarfed Caiman'. He stated that he told her that he had a caiman lizard in the tank with the alligator. "She heard the word 'Caiman' and assumed right away it was a Caiman Crocodylean."
With respect to the illustrations submitted by the People, (Exhibits 1,2 and 3), the defendant accurately pointed out that Exhibit 1 "American Alligator and Exhibit 2, "Dwarf Caiman", depict animals in the same posture with their mouths open and heads up. Exhibit 3, an illustration of a "Caiman Lizard", shows an animal in a different posture with its mouth closed and its head on the ground. The court accepts as credible, the defendant's testimony that both animals are capable of laying their heads down flat on the ground as well as lifting their heads up. Moreover, the court finds the evidence and testimony introduced by the People to identify the animals in question to be inadequate.
Based on the above the court finds that the People failed to establish that the defendant possessed and sold a Dwarf Caiman or any other species of Caiman Crocodilus, an endangered species for which a permit is required pursuant to NYS Environmental Conservation Law.
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FINDINGS OF FACT AND CONCLUSIONS OF LAW
Based on the evidence and the credible testimony adduced at trial the Court finds that the People failed to prove beyond a reasonable doubt that the defendant violated the terms of his Fish and Wildlife Permit and that the defendant possessed and sold a caiman in violation of 6 NYCRR 182.5.
Accordingly, the Court finds the defendant NOT GUILTY of any of the offenses charged.
So Ordered:
________________________
DISTRICT COURT JUDGE
Dated: April 18, 2005
CC:
SKP:rad
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