The PEOPLE of the State of New York, v. Daniel BEAUVIL and Mardoche Beauvil, Defendants

NOTE: THIS OPINION WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE.

THOMAS F. LIOTTI, J.

*1 This case is before this Court from a refusal of the District Attorney to prosecute a case involving a dog that allegedly attacked a person. It is alleged that on April 16, 2008, the complainant was walking down a public sidewalk when a loose dog, later identified as belonging to the defendants FN1, ran up to and bit the complainant on the hand, and, unprovoked, injured the plaintiff and damaged a box he was holding. It is further contended that the complainant then contacted the police and had to receive antibiotics for a period of one week as a result of the bite. Upon contacting the police and making a complaint, the Village of Westbury Attorney apparently advised the complainant to file a formal complaint with the Nassau County District Attorney's office, which the complainant did. Thereafter, the District Attorney's office declined to prosecute and instead suggested that the Village handle the matter.FN2 The complainant gave a supporting deposition to the Village Prosecutor which was reduced to a summons on May 6, 2008. The defendants are also charged with violating Article III, Chapter 74, § 74-8 of the Village of Westbury Code, having his dog running loose, which is a violation. This charge stems from an incident that allegedly took place a month prior to the first charge. On March 20, 2008, the defendants allegedly had their dog “wandering loose,” meaning that the dog was purportedly on public property without a leash or similar restraint.

FN1. The Defendant, Daniel Beauvil, allegedly owns the dog with his wife, Defendant Mardoche Beauvil. The defendants are appearing pro se. For more information on the new rules helping pro se litigants, see Hon. Juanita Bing Newton, Barbara Mule, and Susan W. Kaufman, New Rules Help Self-Represented Litigants. New York Law Journal, July 2, 2008, at 2.

FN2. In a letter dated May 16, 2008, the District Attorney's Office of Nassau County wrote the Village of Westbury that “the complaint appears to be within the jurisdiction of [the Village Attorney's Office] and thus more suitable ” for review by the Village Attorney. (Emphasis added). In a second letter, dated the same day, the District Attorney's Office also wrote to the complainant stating that it had been determined that the complaint “would best be dealt with by the Village of Westbury.”

It is the opinion of this Court that it has jurisdiction of the summons stemming from the violation of the Village Code only. This Court has no jurisdiction to hear the misdemeanor charge stemming from the violation of Agriculture & Markets Law § 121, but that there are other avenues of relief available for the complainant under Agriculture & Markets Law § 121(2), a private civil action, a Special Proceeding under Article 78 of the Civil Practice Law and Rules (C.P.L.R.) versus the District Attorney, and other private actions, which may allow for the recovery of damages for any alleged injuries sustained. This Court, sua sponte, also holds that the Agriculture & Markets Law § 121, as applied to Nassau County Village Justice Courts, is unconstitutional.

Previous Jurisdiction in a Dog Case

In People v. Charles & Nelda McKie, Decision of Interest, New York Law Journal, May 13, 2003, 1, 17 and 20, Village Ordinance Ban on Pit Bulls Struck down as Unconstitutional, this Court held that a Village ordinance banning the harboring of “vicious or dangerous animals” including, but not limited to, Pit Bull FN3 dogs was unconstitutional. The Court struck down that part of the ordinance prohibiting the owning of Pit Bulls as unconstitutional because it violated Agriculture & Markets Law § 107(5), which provides that a municipality's dangerous dog control program “shall [not] regulate such dogs in a manner that is specific as to breed.” FN4

FN3. In New York, a dog means any member of the species canis familiaris. New York Agriculture & Markets Law § 108(5). According to the Rabies Vaccination Certificate, dated February 6, 2006, the breed of the dog involved in this case is a female Bull Terrier, weighing 39.7 pounds, and approximately 1 year and 11 months old. Unlike the McKie decision, the breed of the dog that allegedly caused injury to the complainant is not at issue in this case. See People v. Charles & Nelda McKie, decision of interest New York Law Journal, May 13, 2003, 1, 17 and 20, Village Ordinance Ban on Pit Bulls Struck down as Unconstitutional.

FN4. The legislative intent behind the Village law at the time, Article III, Control of Dogs, in the Westbury Village Code was that the Village Board had determined that the running at large and other uncontrollable behavior of dogs had caused physical harm to persons and damage to property and it was the intent of the Village Board to protect the health, safety, and well-being of persons and property by imposing restrictions on persons owning, possessing, or harboring dogs within the Village. Article III, Chapter 74, § 74-6 of the Village of Westbury Code.

It appears that Pit Bulls, as a breed, are more affordable than other breeds and are often used for protection, security, or as guard dogs. In 2007, according to the American Veterinarian Medical Association, the percentage of households with at least one dog is 37.2%, or 43 million households.FN5 A law that discriminates against Pit Bulls also discriminates against a vast community of persons who wish to own these animals. This Court entertained jurisdiction in that matter because the Local Law contravened the State law. See Uniform Justice Court Act § 201. The ordinance was properly struck down as violative of a state statute, which specifically preempted Local Laws concerning the regulation of dogs by breed only.

FN5. See American Veterinary Medical Association Market Statistics, available at htt p://www.avma.org/reference/marketstats/ownership.asp # comparison. (Last visited on July 8, 2008). It should also be noted that no State or Local Agency (including the State Agriculture & Markets Department) keeps track or compiles any census data on individual breed ownership of dog percentages either per household or community.

*2 This case concerning the alleged violation of Agriculture & Markets Law § 121, as amended in 2004, does not concern a local ordinance (as does the § 74-8 charge); rather it involves a judicial determination of a misdemeanor, which as will be explained below, this Court cannot entertain.

The Law

A dangerous dog FN6 is defined in the Agriculture & Markets Law § 108(24)(a), as amended in 2004, as “any dog which (i) without justification attacks a person, companion animal, farm animal, or domestic animal, and causes physical injury or death, or (ii) behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury or death to one or more persons, companion animals, farm animals, or domestic animals, or (iii) without justification attacks a service dog, guide dog, or hearing dog and causes physical injury or death.” FN7 A companion animal is defined by Agriculture & Markets Law § 350(5) as “any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal.” FN8

FN6. Due to the threat to the public from dog bites, beginning in the late 1970s a number of jurisdictions adopted statutes covering dangerous dogs. See generally Rebecca J. Huss, Rescue Me: Legislating Cooperation Between Animal Control Authorities and Rescue Organizations, 39 Conn. L.Rev.2059 (2007).

FN7. It should be noted that in § 108(b), a “dangerous dog” does not include a police work dog, which is defined by § 108(18), as a dog which acts in the manner described in that paragraph while such police work dog is being used to assist one or more law enforcement officers in the performance of their official duties.

FN8. Agriculture & Markets Law § 350(5) also incorporates the vernacular “pet” as a companion animal, but does not include a “farm animal” as defined in § 350(4), which is any ungulate (a hoofed mammal), poultry, species of cattle, sheep, swine, goats, llamas, horses, or fur-bearing animals which are not dogs or cats.

Agriculture & Markets Law § 118(1) reads in part that, “any dog control officer or peace officer, acting pursuant to his special duties, or a police officer in the employ or under contract to a municipality shall seize (c) any licensed dog which is not found in control of its owner nor on the premises of the dog's owner if there is probable cause to believe the dog is a dangerous dog (d) any dog which poses an immediate threat to the public safety.” (Emphasis added). Subsection 2 allows for seizure if the dog is in violation of any Local Law or ordinance relating to the control of dogs.FN9

FN9. It should be noted that this Village does not have a dog pound or dog enforcement officer. This Court does not have legal authority, jurisdiction, or power to direct the Town to seize a dog in the Village or anywhere else.

As part of the amended Agriculture & Markets Law in 2004, pursuant to § 121(2), any individual who complains of an attack by a dog has the right to commence a proceeding in Municipal Court.FN10 The Court, in turn, must hold a hearing on the complaint to determine whether the dog is dangerous. Under this section, any person who witnesses an attack or threatened attack (including the actual person attacked) may make a complaint with a police officer of the appropriate municipality. In § 121(2), the person simply must make an oath or affirmation to any municipal Judge or Justice concerning the attack. Thereupon, the Judge or Justice “shall immediately determine if there is probable cause to believe the dog is a dangerous dog, and if so, shall issue an order to immediately seize the dog and hold the same pending judicial determination.” See Agriculture & Markets Law § 121(2). Several other courts have already had these types of hearings to determine dangerousness and relief, if applicable. See Beresik v. City of New Rochelle 4 Misc.3d. 1017(A) (2004); Huntington v. Mazzone, 17 Misc.3d 546, 841 N.Y.S.2d 831 (2007) (holding that while the court was able to order the dog euthanized or muzzled, it was unable to hold that the dog could be banished under the law). In the cases above, however, the Courts were able to hold jury trials and therefore were able to entertain jurisdiction to hear misdemeanors, and thus provide for all the rights that accompany misdemeanor trials.FN11

FN10. We are not a Municipal Court. We are a Local Criminal Court and have no civil jurisdiction.

FN11. Beresik took place in the City Court of New Rochelle and Mazzone, notably, took place in the District Court of Suffolk County. Neither took place in a Nassau County Village Court, which cannot entertain misdemeanor jurisdiction because, among other things, it cannot provide for a jury trial.

*3 If at the hearing, the dog is determined to be dangerous, there are several avenues available under subdivision 2, including “secure, humane confinement of the dog for a period of time and in a manner deemed appropriate by the court,” see Agriculture & Markets Law § 121(2)(b), “restraint of the dog on a leash by an adult,” see id. (c), or “muzzling the dog whenever it is on [a] public premise.” See id. (d). Further, if the dog is deemed to be dangerous, the judge may order euthanasia or permanent confinement if aggravated circumstances are established under subdivision 3, including that “the dog, without justification, attacked a person causing serious physical injury or death” or that “the dog has a known vicious propensity as evidenced by a previous unjustified attack on a person which caused serious injury or death.” See Agriculture & Markets Law § 121(3)(a), (b). An attack upon a person is any overt action by the dog tending to cause “reasonable apprehension of harm or injury to a person, together with the apparent ability in the dog to inflict such harm,” which can be accomplished by growls, or bared teeth, a bite being unnecessary. University Towers Associates v. Gibson 18 Misc.3d 349, 351, 846 N.Y.S.2d 872 (N.Y.City Civ.Ct., 2007), quoting In the Matter of Marie LaBorie v. Richard Habes, Jr. 52 Misc.2d 768, 277 N.Y.S.2d 70 (Just. Ct. Town of Webster, 1967). A vicious nature or propensity is defined as “The tendency of a dog to do an act which might endanger another,” Morales v. Quinones, 72 A.D.2d 519, 420 N.Y.S.2d 899 (1st Dept.1979); see Collier v. Zambito 1 N.Y.3d 444, 775 N.Y.S.2d 205, 807 N.E.2d 254 (2004) (other factors that potentially provide notice of vicious propensities include a dog known to growl, snap, or bare its teeth, the manner in which the dog is restrained, and whether the dog is kept as a guard dog); see also Mulhern v. Chai Mgt., 309 A.D.2d 995, 765 N.Y.S.2d 694 (2003) (the breed of the dog, although not sufficient to raise a question without further evidence, can be considered in the overall analysis). For example, recently in Town of Southampton v. Ciuzio, 2008 WL 1902741 (N.Y. Supp.App. Term 2008), the Court sustained a Town of Southampton Court's finding of dangerousness in a dog. There, the Court used the clear and convincing standard of proof, as required by Agriculture & Markets Law § 121(2), to determine that each dog engaged in an unjustified attack on the victim and that each caused physical injury. The Court found that substantial swelling and the scarring associated with the injury to the victim's cheek, neck, and ear constituted serious or protracted disfigurement,' and that the injury constituted the aggravated circumstance of infliction of serious injury, warranting the dog's euthanasia. Id.

The popular theory found in the common law that “every dog is entitled to one free bite' finds no support in the decisions of the courts of this state,” FN12 Palmer v. Hampton, 129 Misc. 417, 418, 220 N.Y.S. 768, 769 (N.Y.City Ct.1927) ( quoting Perrotta v. Picciano, 186 App. Div. 781, 175 N.Y.S. 16 (1919)); see Conroy v. Sperl, 209 A.D. 804, 805, 204 N.Y.S. 679, 681 (N.Y.A.D. 1 Dept.1924) (the Court also found that there was negligence in allowing the dog to run in the public streets at large without a muzzle), which means that private lawsuits even in the first instance, are viable courses of action for those aggrieved. If it is established that a dog is of a vicious nature and that the owner of such dog has knowledge (known as scienter), actual or constructive, of that fact, the owner keeps that dog at his peril. The owner is also chargeable for any failure to prevent the animal from causing harm to any person who, without essential fault, is injured; the owner must restrain such a vicious animal even against a trespasser on the owner's premises. Baldwin v. Thompson, 229 A.D. 430, 242 N.Y.S. 687 (3d Dep't 1930); Perrotta v. Picciano, 186 A.D. 781, 175 N.Y.S. 16 (1st Dep't 1919); Palmer v. Hampton, 129 Misc. 417, 220 N.Y.S. 768 (City Ct.1927); Miller v. Lohrmann, 150 N.Y.S. 488 (App. Term 1914). A person does not have to be bitten by a dog in order to establish a vicious nature. See University Towers Associates v. Gibson, 18 Misc.3d 349, 351, 846 N.Y.S.2d 872, 875 (N.Y.City Civ.Ct.,2007). Therefore, it makes sense that a dog is not entitled to get a first bite at a person before being deemed vicious or before a person has scienter.FN13 However, scienter or knowledge is an element of nearly every criminal law charge. Proving the mens rea or intent is a legal requirement which must be proven beyond a reasonable doubt and, where requested in a misdemeanor case, must be determined by a jury.

FN12. This may be a prudent rule, considering the type of damage and harm that may be inflicted by dogs. See Xana O'Neill and Simone Weichselbaum, Cops: Angry Beau Sicced Pit Bull On Kids, New York Daily News, July 3, 2008, at A8.

FN13. Scienter of the vicious nature of the animal, unrelated to the damage inflicted by an attack, must still be proven in a civil case in New York. Russell v. Rivera, 4 Misc.3d 37, 780 N.Y.S.2d 699, (N.Y.Sup.App.Term, 2004); Carter v. Metro N. Assocs., 255 A.D.2d 251, 680 N.Y.S.2d 239 (1998).

Proper Forum for Prosecutions

*4 The Village of Westbury does not have a dog warden or other such official, but is within the Town of North Hempstead, which primarily has jurisdiction over violations of Local Laws within the unincorporated portion of the Town and under the Town code. See generally, Municipal Home Rule Law § 2(7) and § 10.FN14 Generally, alleged violations of Town Laws in the Town of North Hempstead are presented in the Nassau County District Court. The Town does not have a Town Justice, although there are Villages within the Town. Violations of Town laws are prosecuted by Deputy Town Attorneys in the District Court or by Assistant District Attorneys in that Court. A violation of the Town Building Code, for example, would be prosecuted by a Deputy Town Attorney in District Court if it is a violation. Violations of the Village's Local Laws are presently prosecuted by the Village's Prosecutors in the Justice Court in Westbury, as is the case here.If the alleged violation of law is a misdemeanor or a felony under State law, then the District Attorney would handle that prosecution in a District or County Court. When District Courts in Nassau and Suffolk Counties were created in the early part of the 20th century, Village Justice Courts were allowed to remain as part of a compromise; the compromise allowed the Village Justice Courts to retain jurisdiction to hear vehicle and traffic law violations, violations of State Law, and, most appropriately, violations of Village Laws. See William Glaberson, Broken Bench: In Tiny Courts of NY, Abuses of Law and Power, New York Times, September 25, 2006 at A1. FN15

FN14. Nassau County is the first County, just east of New York City and Queens County. Nassau is sixteen miles long and the same distance wide. It has a population of approximately 1.4 million. It is comprised of two Cities, three Towns, and sixty-four Villages.

FN15. For a follow-up article and for more information about Village Justice Courts, see William Glaberson, State's Justice Courts to Face Scrutiny by Assembly Panel, New York Times, October 14, 2006; William Glaberson, Justice Courts for Small New York Towns to be Overhauled, New York Times, November 22, 2006; William Glaberson, Deeply Concerned,' Special Panel Will Extend Study to Small-Town Courts, New York Times, February 24, 2007.

For example, one of the charges in this case involves an alleged violation of Article III, Chapter 74, § 74-8 of the Village of Westbury Code, which is an ordinance prohibiting a dog to be “on public property unless the dog is retained in the immediate custody and control of its owner or possessor by a chain or leash not exceeding six feet in length.” According to § 74-17(b), any person convicted of violating the above charge shall be punished by a fine between $25 and $100 or by imprisonment for a period of not more than 15 days or both for a first offense, a fine between $50 and $100 or not more than 15 days of imprisonment or both for a second fine committed within five years of the first, or a fine between $250 and $500 or not more than 15 days of imprisonment or both, for two or more convictions within five years. This offense is explicitly a violation-offense and does not contain a penalty defined as a misdemeanor.

Unlike § 121 of the Agriculture and Markets law, which is a misdemeanor, this Court opines that it could have also entertained the matter if the defendants were charged with a violation of Article III, § 74-10 of the Village of Westbury Code, which states that “it shall be unlawful for a dog to chase, jump upon or at or otherwise harass in such a manner as to reasonably cause intimidation or fear by such person or to put such person in reasonable apprehension of bodily harm or injury.” § 74-10 is a violation and therefore this Court has jurisdiction, provided of course that the alleged incident occurred within the Court's jurisdictional territory. The penalty, upon a conviction of § 74-10 is the same as a violation of § 74-8 ( supra ). See § 74-17(b). § 74-10 also better tracks the charges that the defendants are accused of in § 121. For example, both make it unlawful to cause harm or injury, but only the Village Code creates the violation offense for which this Court has jurisdiction.

Nassau County Village Justice Courts Do Not Have Jurisdiction to Preside Over Misdemeanors

*5 Does a Nassau County Village Justice Court have jurisdiction over a misdemeanor? The answer to this question is no. District Courts exist only in Nassau and Suffolk, but the Suffolk Village Justice Courts have retained jurisdiction over misdemeanors by the Uniform District Court Act and their respective County Charters. See Morris, et. al., Village, Town, and District Courts in New York, Thomson/West Publications, (1995-present); See also Beach v. Kunken, 162 Misc.2d 381, 616 N.Y.S.2d 721, (N.Y.Sup.,1994). Cf. People v. Caltabiano, 154 Misc.2d 860, 586 N.Y.S.2d 714 (N.Y.Just.Ct.1992). Of considerable note is the fact that when Suffolk County amended its charter by a proposition in 1962, the Towns of Babylon, Brookhaven, Huntington, Islip and Smithtown became a part of the Suffolk County District Court system. The Uniform District Court Act became effective in those Towns on January 1, 1964, by virtue of § 2501 of the Suffolk County Charter, L.1958, C. 278 as added by L.1963, C. 570, § 3, effective January 1, 1964. When the District Court system was established in Suffolk County there was no abolishment of any Village courts; no transference of jurisdiction or power to the District Court from the Village Courts and it has been determined that the Suffolk County Village Courts have jurisdiction over misdemeanors. See People v. Matthew Beach, 161 Misc.2d 185, 613 N.Y.S.2d 552 (1994); discussed in People v. Ventura, 3 Misc.3d 1107(A), 787 N.Y.S.2d 680 (N.Y.Just.Ct.2004). This no doubt had to do with the size of Suffolk which is 90 miles long and contains nine towns.

Nassau County is different in that it has two cities, three towns, and sixty-four incorporated villages; it is also only a mere 16 miles long and the same distance wide. In Nassau, unlike Suffolk, Justice and Town Courts ceded criminal jurisdiction when the District Court Act became effective in 1939. See New York Uniform District Court Act § 2001, formerly Ch. 274; see also § 2402, et. seq. of the Nassau County Charter. The extent of jurisdiction for the Nassau Village Courts has been limited elsewhere. For example, the Police Justice of the Village of Rockville Centre, Nassau County, does not have jurisdiction of penal actions under § 113 of the Agriculture and Markets Law since jurisdiction has been transferred to the District Court of Nassau County.1965, Op. Atty. Gen. (Inf.) 94. See generally, People v. Ventura 3 Misc.3d. 1107(A) (N.Y. Just. Ct.2004).

Our Village Court in its current form was established in 1949. Village and Town Courts statewide actually date back to Colonial times. Prior to that time our Village Justice functioned as a Justice of the Peace in what was a Police Court. Our jurisdiction is primarily over Building Code cases and Vehicle and Traffic matters. In People v. Ventura, supra, this Court, in dicta, again held that it does not entertain jurisdiction over misdemeanors. See People v. Nicometi, 12 N.Y.2d 428, 240 N.Y.S.2d 589, 191 N.E.2d 79 (1963); People v. Brodlowicz, 182 Misc. 351, 48 N.Y.S.2d 86 (1944); see also People v. Puma, WL 696439 (N.Y. Just. Ct.2008). Part of the reason was that this Court could not and cannot feasibly comply with the Federal and State's Constitutional requirements for trials by jury in criminal cases. See United States Constitution, Amend. VI., New York State Constitution, Article I, Section 6; see also Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Arsinger v. Hamil, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); see also New York State Constitution Art. 1, § 2. Justice Courts also do not possess the authority to assign counsel, thus an indigent defendant would be deprived of counsel at arraignment and possibly thereafter. See Arsinger, supra. See also Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002) (a suspended sentence that may end up in actual deprivation of a person's liberty may not be imposed unless a defendant was accorded the guiding hand' of counsel in prosecution for crime charged). See also County Law § 18b. See also People v. Daniel Louis, New York Law Journal, March 15, 1999, at 1, 25, and 33; People v. Quiroga-Puma, 18 Misc.3d. 1130(A) (N.Y. Just. Ct.2008). We also do not have the ability to assess the feasibility of bail on pre-trial release involving more serious cases, and do not have access to probation or pre-trial release agencies. Further, this Court does not have facilities for jurors. Moreover, as this Court noted in Ventura, there is no constitutional right to a trial by jury in the case of a petty offense or violation. See People v. Bellings, 269 N.Y. 265, 199 N.E. 213 (1935); People v. Wayman, 82 Misc.2d 959, 371 N.Y.S.2d 791 (1975). That would necessitate a finding that there is no jurisdiction for this Court to hear misdemeanors.

*6 In Ventura, however, the defendants were charged with violations and not misdemeanors. Subject matter jurisdiction of this Court shall be as provided in the Uniform Justice Court Act. UJCA § 201 states that the UJCA is not the only source of subject matter jurisdiction for the Court. Other statutes may supply additional jurisdiction. Most appropriately, an example of subject matter jurisdiction coming from another law is the proceeding to destroy or securely confine a dangerous dog. The proceeding is authorized by Agriculture and Markets Law § 121(2), as amended in 2004, which confers express power on all municipal judges and justices to entertain such a proceeding.FN16 Nowhere in the Agriculture & Markets law is express jurisdiction granted to hear causes arising out of subsection nine or eleven. In construing New York's statutes, the Legislature has prescribed that the Court follow the latin maxim “ expressio unius est exclusio alterius,” i.e., “where a law expressly describes a particular act ... an irrefutable inference must be drawn that what is not included was intended to be omitted and excluded.” See McKinney's Cons Laws of NY, Book 1, Statutes § 240; see also, Doyle v. Gordon, 158 N.Y.S.2d 248 (Sup Ct, N.Y. County 1954). This Court believes that the Legislature truly does not understand that there is a marked differentiation between Village Courts in Nassau County and elsewhere. The Legislature has obviously overlooked the constraints of Village Courts in Nassau County. If the Legislature wishes to give Nassau's Village Courts jurisdiction over misdemeanors, it needs to enact legislation to that effect which must clarify questions involving the jurisdiction of District Courts and what facilities, training, staff, and provisions will be provided for the conduct of these cases including jury trials. Therefore, Agriculture & Markets Law § 121 as applied to Nassau County Village Courts is unconstitutional.

FN16. The proceeding, it may be noted, is civil in nature, not criminal. See In Re Foote, 129 Misc. 2, 221 N.Y.S. 302 (1927). Therefore this Court also lacks jurisdiction to hear the matter as it retains criminal jurisdiction for violations. See Ventura, supra.

The District Attorney Improperly Declined Jurisdiction

Where a municipality elects to prosecute a violation, a Town or Village Attorney's authority is limited. See Op. Atty. Gen.2005-12. Article 7 infractions may be prosecuted as “violations” under the Penal Law, see Agriculture & Markets Law § 119(2), however the present charge is a misdemeanor offense and County Law § 700(1) requires that the District Attorney for a particular county prosecute all crimes and offenses cognizable by the courts of that county. While it is possible, with a proper grant of authority from the District Attorney, Village Officials may prosecute violations of a Village's Local Laws, see Op. Atty. Gen. No. 97-52, the law that was allegedly violated here is a State law and not a village ordinance or violation. In her letter dated May 16, 2008, Nassau County District Attorney Rice writes that “it has been determined that [the complaint] would best be dealt with by the Village of Westbury.” This does not confer specific “permission” or cede authority, but rather acts as a declaration of the complaint as non-prosecutable. County Law § 700(1) does not necessarily mean that the District Attorney or his or her deputy must be physically present at every criminal hearing in the county. However, it means at least that the District Attorney, as the elected representative of the People and charged with this responsibility, “must carry the responsibility and must set up a system whereby he or she knows of all the criminal prosecutions in his or her county and either appears therein in person or by Assistants or consents to an appearance on his or her behalf by other public officers or private attorneys.” People v. Van Sickle 13 N.Y.2d 61, 63, 242 N.Y.S.2d 34, 192 N.E.2d 9 (1963). But in any event, as a Court, we do not have jurisdiction over misdemeanors at any stage. Thus, the District Attorney may not cede authority to a Nassau County Village Court to preside over misdemeanors since it would be unconstitutional to do so for the reasons set forth herein.

*7 In the modern world, where dogs are sometimes trained to guard, fight, kill, and attack, the notion that “all dogs are man's best friend” is no longer a safe assumption. Leashes on all dogs are now as important as safeties on gun holsters or scabbards for swords. The harm that may result from a dog being off a leash corresponds to the understandable fear that arises in people when they are confronted by some dogs being off their leashes and worse, outside of their owner's presence. The legal maxim concerning scienter that “every dog gets one free bite” is passÉ since today a dog's first bite may result in serious injury or even death. If the District Attorney continues to decline jurisdiction then the Village Prosecutor or the complainants may initiate an Article 78 Special Proceeding in the Supreme Court of Nassau County in the nature of a mandamus which would compel the District Attorney to act in accordance with the law. See C.P.L.R. § 7802. Article 78 permits a proceeding thereunder to review the question of whether an officer failed to perform a duty; a mandamus may be available to question whether there has been a clear violation of a legal duty (under C.P.L.R. § 7803(1)), in this case the failure of the District Attorney to prosecute an alleged criminal act.

Conclusion

Simply barring Pit Bulls is not the answer. See People v. Charles & Nelda McKie, decision of interest New York Law Journal, May 13, 2003, 1, 17 and 20, Village Ordinance Ban on Pit Bulls Struck down as Unconstitutional; see also Ed Lowe, A Case of Dog Discrimination, Newsday May 9, 2003, A8. The real solution is for the District Attorney to take these cases seriously and prosecute violators of the law.FN17 In cases where, as we have here, there is an alleged attack on a person by a Pit Bull, it is important to remember that it is the People that still have the burden of proof, but that the People must bring their cause to a Court that has the proper jurisdiction. Courts of law should be able to provide justice for the aggrieved; however, where jurisdiction is not present, it is not for this Court to create its own.

FN17. The problem of dogs attacking people and causing serious injury is not a problem that is declining; and the problem, of course does not only occur on Long Island. See Kareem Fahim and Al Baker, Staten Island Man is Mauled by Neighbor's Pit Bulls, New York Times, July 2, 2008, at B3. The solution is for prosecutors in all counties across the state to take these incidents seriously and prosecute the offenders as prescribed by law in the proper court. A reason that these types of attacks are a continuing problem is the indifference shown by some prosecutors in not taking their sworn oath seriously or exercising their duty to uphold and prosecute alleged offenders of the law. This is a statewide problem, as recognized by the Legislature; the prosecution of alleged offenders should fall to the District Attorneys in each County and in the proper courts therein.

The American Bar Association Standards for the Prosecution Function and the New York State Code of Professional Responsibility both require that Prosecutors use sound judgment and discretion in determining which cases to prosecute. See New York Disciplinary Rule 6-101(A) and New York Ethical Consideration 6-2; see also American Bar Association Standard 3-1.2. This is a formal, deliberate process where both the facts and the law are to be carefully analyzed. Here the Village Prosecutor reviewed the matter and properly sent the complainant to the District Attorney who then “passed the buck” and sent him back to the Village. In this Court's view, the District Attorney did not demonstrate sound judgment and discretion in doing so. In a terse letter referring the matter back to the Village, the District Attorney has not indicated that she engaged in a formal, deliberate process where both the facts and the law were carefully analyzed. Consequently, she has shown a lack of appreciation for the significance which the Legislature has placed upon the problem of dangerous dogs and she has also shown a callous disregard for the very complainants whose rights she has sworn to protect. The Legislature has provided a remedy for the serious growing problems associated with dangerous dogs.FN18 That remedy is access to the District Court.

FN18. It should be noted that the term “dangerous dog,” as used by this Court, means exactly what the definition in Agriculture & Markets Law § 108(24)(a) says it to mean and that this Court does not equate a Pit Bull as being a dangerous dog per se nor that the dog in this case is a dangerous dog. The defendants have a right to a hearing to determine whether his dog is to be considered dangerous within the meaning of the Agriculture & Markets Law statutes, and just like the defendants carry a presumption of innocence, so too does his dog. While a dog may not be entitled to a bite, a dog is still entitled to have his day in court.

*8 It should also be noted that too often “dangerous dogs” are illegally or improperly trained to fight, attack, and even kill. These poor animals are not to blame for their conduct. The proper assignment of blame should be placed on owners of these dogs and such persons should be prosecuted in courts with misdemeanor and felony jurisdiction. See Mark Maske, Falcon's Vick Indicted in Dog Fighting Case, Washington Post, July 18, 2007, at E1. There is a reason that the State Legislature made it illegal to regulate a program specific to a dog's breed. See Agriculture & Markets Law § 107(5). It is not the breed of the dog, or the dog alone, that creates a dangerous, or potentially deadly situation; it is the human owners or controllers of the dogs that fashion the danger.

Accordingly, it is the judgment of this court that there must be a dismissal of charge no. 6721, alleging a violation of Section 121 of the Agriculture & Markets Law for lack of subject matter jurisdiction, not on the merits, and without prejudice. Double jeopardy does not attach. New York State Constitution, Article I, Section 6; NY CPL § 40.20(1); see generally, People v. Gonzalez, 99 N.Y.2d 76, 751 N.Y.S.2d 830, 781 N.E.2d 894 (2002) and People v. Biggs, 1 N.Y.3d 225, 771 N.Y.S.2d 49, 803 N.E.2d 370 (2005).

This court also finds that it has jurisdiction to hear summons no. 6720, alleging a violation of Article III, § 74-8 of the Village of Westbury Code.

This Court sincerely regrets the fact that the complainant and defense have been shuttled from Hempstead to Westbury and back again. Ms. Rice can properly decline to prosecute any case, however, she may not do so by dumping cases on Nassau's Village Justice Courts when they have no jurisdiction to entertain them. Village Justice Courts are not an enigma. They have clearly defined powers and limited jurisdiction.

In thus far declining to prosecute this case, it is this Court's humble opinion that the District Attorney has shown a callous indifference to the residents of Nassau County as well as ignorance with respect to the jurisdiction of Village Justice Courts versus the District Courts of Nassau County. She has also blithely dismissed the problems associated with unleashed or uncontrolled dangerous dogs in our community. While this Court appreciates the hardship and danger that such indifference may cause to all residents in Nassau, it cannot arrogate jurisdiction to itself in the absence of enabling legislation that reconciles our County Charter, the United States and New York Constitutions, the Uniform District Court Act, and the lack of training, jurors, staff, and other facilities, to preside over these matters. This Court is not shirking its responsibilities. On the contrary, it is complying with the law concerning the limit and scope of those responsibilities.

This constitutes the order and opinion of this Court.