People of the Town of Grand Is. v Long
Annotate this CaseDecided on February 6, 2012
Tonawanda City Ct
People of the Town of Grand Island
against
Thomas Long,
2011-0244
Mark Nemeth, Esq.
Grand Island Town Prosecutor
For the People
Patrick, Quinlivan, Esq.
Buffalo, New York
For the Defendant
Joseph J. Cassata, J.
This case originated as a dangerous dog complaint charged under §121 of the Agriculture and Markets Law in the Town of Grand Island against the respondent, Thomas Long. Both judges in the Town of Grand Island Court recused themselves due to potential conflict of interest caused by their prior representation of the Defendant and/or his family in other legal matters. The case was subsequently transferred to Tonawanda City Court for further proceedings and disposition. The case was officially transferred on April 19, 2011 and the Defendant was arraigned on May 17, 2011.
On July 8, 2011, a pre-trial conference was held and the prosecution moved to amend the charge from Agriculture and Markets Law §121 to Agriculture and Markets Law §123. There was no objection by the Defendant and the motion to amend was granted. None of the factual allegations changed pursuant to the amendment, the amendment was made merely to comport the allegations with the charges. The statute had previously been renumbered and this amendment [*2]was made to reflect that legislative change.
Numerous pre-trial conferences were held prior to trial. The trial was scheduled for and held on November 7, 2011. The People were represented by Mark Nemeth, Esq., the assistant town attorney for the Town of Grand Island, in this action. The Defendant was represented by Patrick Quinlivan, Esq. at all stages of the proceedings. Counsel for both parties were permitted to submit briefs following the trial by close of business on December 7, 2011. Both parties submitted written memoranda to the court for consideration.
The testimony at trial revolved around bites to Sheriff Deputy Anthony Yavicoli on Sunday, January 30, 2011, as he attempted to conduct a pistol permit investigation. As part of that investigation, he had selected to interview two neighbors of the pistol permit applicant, one of whom was Mr. Thomas Long. After parking in the driveway of the Long residence the deputy became aware of two dogs, one which he saw and another which he heard. Deputy Yavicoli was approached by one dog, a labrador type dog who approached and then retreated. He then turned his head and was bit on the left calf and shin and then both inner thigh areas by a German Shepherd. He attempted to retreat to his vehicle and was then bit from behind. Deputy Yavicoli then returned to his substation on Whitehaven Road in Grand Island, talked to his supervisor, examined his wounds, and then decided to proceed to the hospital.
Upon examination of his wounds, Deputy Yavicoli discovered he was bleeding and that the bites had broken the skin in all three bite locations. Additionally, his uniform pants were ripped in all three bite locations. He then drove himself to Erie County Medical Center. At the emergency room, the staff cleaned and bandaged the wounds. He was also given an antibiotic, bandages, ibuprofen, and neosporin. After he was released, he returned to the sheriff substation. The deputy received no stitches or shots as a result of the bite. The testimony of the Deputy regarding these bites was supplemented by pictures of the bite marks on the day of the bite.
The deputy took two days off of work as a result of the bites. He testified that this was a precautionary measure because he did not want the wounds to get infected and he could not run as fast, jump as high, etc. He did testify that he continued to be in pain throughout the time he was off and the pain continued when he returned to work, over 1 week later. The court examined the scars of the deputy, after reviewing photos taken in September 2011 (approximately 8 months after the incident) of the scars. Yavicoli did not return for any follow-up medical treatment, was not required to attend any physical therapy, did not return to the hospital or to any other medical professional regarding the bite wounds.
Based on the testimony of Deputy Yavicoli, the court determines by clear and convincing evidence, that the attack on Deputy Yavicoli was unjustified and unprovoked. Further based on the testimony and the pictures submitted to the court, the Court finds that Yavicoli's injuries rise to the level of physical injury and therefore, Thor is determined to be a dangerous dog. Physical injury is defined as impairment of physical condition or substantial pain in Agriculture & Markets Law §108 (28). It is clear that Deputy Yavicoli's injuries rise to the level of substantial pain as he was out of work for two days and was unable to participate in his normal activities according to the testimony.
However, the question of whether or not Yavicoli's injuries rise to the level of serious physical injury for purposes of possible euthanasia is a very difficult determination. Serious physical injury is defined as physical injury which creates a substantial risk of death, or which [*3]causes death or serious or protracted disfigurement, protracted impairment of health or loss or impairment of the function of any bodily organ. Agriculture & Markets Law § 108 (29).
The prosecution also presented the testimony of Gregory Butcher, the dog warden for the Town of Grand Island. Mr. Butcher testified that there were reports from the Erie County Department of Health for three other dog bite incidents of Thor. Those reports were stipulated into evidence by the parties. However, those reports do nothing but report the allegation of a bite. There are no other factual allegations within those reports that enlighten the court as to the nature or seriousness of those bites. Therefore, these reports and the testimony of Dog Warden Butcher provided no further evidence of the "vicious propensity" of Thor.
The Prosecution posits that the injuries sustained by Deputy Yavicoli of a bite mark on the left calf and the inner thighs rise to the level of serious and protracted disfigurement under the statute and therefore, qualify as serious physical injury for purposes of determining whether euthanasia is appropriate for Thor. Furthermore, the prosecution posits that the proof of other bites shows that Thor has vicious propensities and therefore is appropriate for humane euthanasia.
Defense counsel argues that scars on the legs without anything more do not rise to the level of serious and/or protracted disfigurement. The court cannot determine by clear and convincing evidence that the injuries sustained by Deputy Yavicoli qualify as serious or protracted disfigurement. These injuries are not injuries to the face or a readily visible area of the body. Further, the scars are not so severe as to qualify under "serious or protracted disfigurement." Defense counsel elicited testimony from the deputy that he was not a leg model and had no intentions or aspirations to become a model. The injuries to the complainant in People vs. Jornov, 65 AD3d (4th Dept. 2009), was a bite wound to the right leg with a torn hamstring. The complainant's wound required antibiotics, ibuprofen and physical therapy for six to eight weeks. Though the wounds in Jornov were analyzed under the "protracted impairment of health" portion of the serious physical injury definition, the court finds this situation analogous. The wounds are serious even for physical injury, but the Court cannot find by clear and convincing evidence that these wounds rise to the level of serious physical injury.
WHEREFORE, it is hereby determined that Thor is declared a dangerous dog, but the court does NOT find by clear and convincing evidence that there was serious physical injury to Deputy Yavicoli. The Court hereby ORDERS that the respondent comply with the following conditions::
1)It is ORDERED that the dangerous dog, Thor, shall be neutered, if he is not already. If he is not neutered, such procedure is to be completed and proof provided to the court within 30 days of this decision. If he is neutered already, proof of such is to be provided to the court within 7 days of this decision; and
2)It is hereby ORDERED that Thor shall be fitted with a microchipping device, if he is not already. If he is not microchipped, such procedure shall be completed and proof provided to the court within 30 days of this decision and order. If microchipping has already been completed, proof of such is to be provided to the court within seven (7) days of this decision and order; and
3)It is hereby ORDERED that there be an immediate evaluation of Thor by a certified animal behaviorist, a board certified veterinary behaviorist, or another [*4]recognized expert in the field and completion of training or other treatment as deemed appropriate by such expert. The owner of the dog is responsible for all costs associated with such evaluations and training ordered under this section. This evaluation and training shall be in addition to any other evaluations that Thor has already undergone; and
4)It is hereby ORDERED that Thor shall be restrained in secure locked pen when he is outside on the Long premises, in order to prevent escape and to protect the public. The pen shall be designed and constructed to prevent the escape of the dog, to prevent unauthorized contact with the dog, and to protect the dog from the elements. The pen shall be constructed of cyclone fencing or substantially similar metal-based material, the sides of which are to be affixed to posts and to a concrete footing and/or a pad that the dog cannot push through, climb over or dig out under such pen, which is to be no less than 6 feet in height. This pen shall be installed within 45 days of the date of this order and file with the court and the Town of Grand Island proof of compliance by affidavit within ten days after the completion of the pen; and
5)It is Hereby ORDERED, that when Thor is indoors and the Longs have guests (defined by the court as any individuals who do not reside on the premises) Thor must be secured in another room away from the guests or outside in his pen referred to in the above paragraph #4; and
6)It is hereby ORDERED that Thor shall be restrained on a leash and muzzled (in a manner that will prevent biting any person or animal, but that shall not injure the dog or interfere with its vision or respiration) and handled by someone over the age of 21 years at any time that he is on public premises; and
7)It is hereby ORDERED that the respondent of shall maintain a liability insurance policy in the amount of one hundred thousand dollars ($100,000) for personal injury or death resulting from an attack by such dangerous dog. Proof must be provided to the court within 30 days and annual proof must be provided to the court and the town clerk of Grand Island (pursuant to General Municipal Law §209-cc) for the life of the dog or as long as the respondent owns the dog, whichever is longer; and
8)It is hereby ORDERED the Respondent is fined a civil penalty of Four hundred dollars ($400.00) to be paid on or before March 7, 2012; and
9)It is hereby ORDERED that the Town Attorney's office shall monitor the strict compliance with the Order of this Court.
9)There was no request for restitution in this matter, so no restitution is ordered.
Let this serve as the decision and order of this court.
______________________________
Hon. Joseph J. Cassata [*5]
Chief Judge
Tonawanda City Court
Dated:February 6, 2012
Tonawanda, New York
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