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Canajoharie, NY ,

Linda Kellett - In this file photo, patrol cars and the vehicles of pet rescue representatives are parked alongside this barn at 7145 state Route 5S between Airport and Sanders roads in the town of Minden where more than 50 dogs and puppies were seized in early January. The building has since been destroyed in a fire of suspicious origin.

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Minden canine owner gives up claims in court

Thursday, February 28, 2013 - Updated: 10:28 AM

By LINDA KELLETT

C-S-E News Staff

MINDEN — Area residents arrested in connection with the early-January seizure of more than 50 dogs and puppies from a town of Minden barn appeared with their attorneys in front of Minden Justice Frank Alford Monday. By night’s end, the disposition of all but four of the canines was resolved, with one of the defendants giving up all claims to the animals.

Present were Joseph Marriott of Park Street, Gloversville, and Diane and Paul Marriott of Center Street, Fort Plain, who were represented by Fort Plain attorney Richard Weinheimer and civil rights attorney Elmer Robert “Bob” Keach III of Amsterdam, respectively.

Others in the courtroom for the lengthy proceedings included Montgomery County Assistant District Attorney William J. Mycek; attorney Jonathan Schopf, of the Vincelette Law Firm, who represented the nonprofit rescue group Out of the Pits; animal shelter representatives; self-described "interested parties"; and dozens of people with regular court business. Most of those cases were adjudicated by Minden Justice Susan Buddles.

Security for the session was beefed up, as well, as a number of Fort Plain Police officers and a Montgomery County Sheriff's deputy were among those on hand in the packed courtroom. There were no problems or incidents.

The Marriotts were charged late last month with 52 counts of animal cruelty in violation of Section 353 of Agriculture and Markets Law, accused of overdriving, torturing and injuring animals; failure to provide proper sustenance.

According to State Police, officials executing the search warrant at the barn at 7145 state Route 5S on Jan. 2 allegedly found uninhabitable conditions including an unheated and element-exposed structure, frozen water, a deceased canine, and many of the canines lying in fecal matter.

They also reported finding dogs suffering from various health-related issues including frostbite, open sores and worms.

Additionally, Joseph Marriott was charged with second-degree criminal possession of marijuana for allegedly possessing more than 16 ounces of marijuana, second-degree aggravated harassment for allegedly posting a threat to a local shelter employee, and unlawful possession of marijuana.

Early in Monday night’s proceedings, the younger Marriott accepted a plea bargain offered by the District Attorney’s Office.

Weinheimer said he felt he could mount a good defense against the animal cruelty charges; however the younger Marriott faced a state prison sentence because of the felony drug charge incident to the dog investigation, which basically required us to resolve because that was more serious.

Consequently, Joseph pleaded guilty to a misdemeanor marijuana charge and was sentenced to 30 days in jail. Additionally, he is required to pay a $1,000 fine and $205 surcharge, said Weinheimer. He said the aggravated harassment charge was dropped.

With regard to the dog matter, Weinheimer said Joseph pleaded guilty to one count of failure to provide sustenance. Additionally, he forfeited any interest in the dogs that were confiscated. In turn, there would be no restitution required.

“It was a resolution acceptable to him,” the attorney said, noting the agreement resolved the entire matter.

“I suppose in some small way, justice was done; and it was a good resolution for my client,” Weinheimer said, noting it was unclear how many dogs actually belonged to Joseph Marriott.

Marriott was transported directly to the Montgomery County Jail to begin serving his sentence.

None of the criminal charges was addressed with regard to the case against Diane and Paul Marriott.

Following protracted discussions among the attorneys and clients, a partial disposition was reached about the status of 48 of the animals; however Paul and Diane Marriott said they wished to recover their four pets: Electra, Abigail, Cherokee and Lily. Consequently, the court proceeded to a security bond hearing for the four dogs.

As noted in Section 353 of Agriculture and Markets Law, that bond “shall be in an amount sufficient to secure payment for all reasonable expenses expected to be incurred by the impounding organization in caring and providing for the animal pending disposition of the charges. Reasonable expenses shall include, but not be limited to, estimated medical care and boarding of the animal for at least 30 days.”

Weinheimer said the bond is essentially a deposit left with the court. “It’s a mechanism to make sure the animals are paid for in the end,” he said.

During the hearing that followed, State Police Investigator Gibney detailed the events leading up to and following the execution of a search warrant at the Route 5S barn, noting that he investigated based on a complaint by an individual who purchased a puppy from Joseph Marriott. The animal was alleged to have coccidia, worms and anemia.

After consulting with Minden Dog Control Officer and Rabies Response Agent James Brownell and obtaining a statement from Fort Plain Police about conditions at that address, he obtained a search warrant signed by Justice Buddles. Throughout his testimony, which included photos depicting conditions in the barn, Gibney maintained the barn was dilapidated and drafty with missing windows, doors and blowing snow. The temperature was 14 degrees, he said. Water in bowls was frozen, and feces and urine were throughout the barn.

Gibney confirmed that there was some food in bags in the barn. He also said he had no idea when the water bowls were filled. Keach suggested fresh water placed in the bowls in the morning could have frozen before the owner could refill them after work that evening.

It was established that two of the dogs, presumably the pets of Diane and Paul Marriott, were in dog houses.

When asked about the charges against Paul and Diane Marriott, Gibney said Paul was charged based on his ownership status on dog licenses. Diane Marriott was charged on what Keach called “hearsay” evidence from Out of the Pits President Cydney Cross. Gibney said Cross claimed that Diane asked about the status of “our” dogs during a phone call.

Also testifying on behalf of the animal shelter groups was Dr. Jill Zager, who works at the Latham Animal Hospital; and Cross, who testified about the average daily costs incurred for each dog to date.

Under questioning by Schopf, Zager said the blue plastic barrels that housed a handful of the dogs would not have provided adequate protection from the extremely cold temperatures in the barn. She said adequate exterior housing should offer protection from the wind and have some sort of insulation.

Additionally, she said short-haired dogs require more insulation than long-haired dogs. She also said she did not believe the dogs had adequate bedding or were adequately sheltered from the cold.

During cross-examination by Keach, Zager said that she didn’t know how much hay was in the barrels. Additionally, she said didn’t know what they were made of or how thick they were. She also had no way of knowing if plastic sheets were provided as a barrier against the wind.

She agreed that her opinion that the barrels were inadequate was “speculation.”

There was also a line of questioning about the animals’ vaccination schedule, the transmission of worms among the dogs and other maladies, as well as the results of the necropsy, which was performed on the dead dog by the Troy Veterinary Hospital.

Zager said the dead dog had numerous injuries on its ears, face and legs, with a lot of blood. In particular, there was a large puncture wound to a large vessel on the front leg. The cause of death was due to complete blood loss, she said.

Depending on whether an artery or a vein was damaged, she said it could have taken between a half hour and a couple of hours for the dog to bleed out. Based on the puddle of blood, she suggested that the dog sustained an injury to a vein and bled out more slowly.

During cross-examination by Keach, Zager agreed that the injuries to the dead dog could have been caused by other dogs during a fight in the owner’s absence — an incident that could happen in a dog-loving home. In such a case, it wasn’t necessary indicative of neglect, she agreed.

With regard to the puppies’ maladies, Keach asked about the incidence of hard-to-cure worms, hair loss, callouses on elbows, ear infections and tartar on teeth in dogs whose owners take good care of them. Zager said such maladies do occasionally occur, “but typically you don’t have all the problems in one dog at a time,” she said. If we're going to get all those problems, I’m going to wonder why they're not being addressed.”

Later, she said that multiple conditions are normally indicative of neglect.

In an effort to address the four specific dogs that the Marriotts wish to keep, Keach was frustrated when referring to veterinary records that apparently didn’t correspond to dogs identified in specific exhibits entered into evidence by Schopf.

Finally during Cross’ testimony, it was noted each dog’s boarding costs were about $25 per dog per day, not including food. She claimed that the various animal groups housing the seized canines had incurred veterinary costs, worming medications, vaccinations and the like.

The estimated daily cost to house all 51 dogs was about $1,275. She said the various groups to date had incurred actual expenses of $24,000.

Keach implied that the groups sheltering the dogs inflated their lodging costs.

Two of the dogs the Marriotts wish to recover are in the care of foster families, the others are housed in the Herkimer County Animal Shelter and a fourth is boarded at the Troy Animal Hospital, she said. Foster families do not get paid to provide lodging, it was noted.

During Keach’s closing argument, he asked for a bond amount that isn’t punitive. “It should reflect the actual cost of care,” he said, asking that bond be set at less than $2,000.

In his closing arguments, Schopf reminded Justice Alford that as the petitioner, he only has the burden of proving by a “preponderance of the evidence that the person from whom the animal was seized violated a provision of the law.”

Additionally, he noted the cash bond amount is based on estimated expenses by the organization.

Referring to Gibney’s testimony about the broken and missing windows, the extremely cold temperature and the like, Schopf said it was more likely than not that the animals were mistreated. He estimated the bond amount should be more in the $4,000 to $5,000 range for the four dogs.

Alford indicated that he would issue a written decision about the bond question in five days.

On Tuesday, Keach said that if the Marriotts are unable to come up with the bond amount, they will lose the dogs. If they are able to post the bond and are found not guilty of the criminal charges, they can recover all of their money as well as the four sought-after dogs.

If the Marriotts were deemed guilty, they would be responsible for paying for the four dogs’ care for the entire time. Additionally, they would not be able to recover the animals.

Keach also indicated that he would be seeking a change of venue for the Marriott’s trial on the criminal charges.

He suggested that the testimony of the veterinary expert would help to win Paul Marriott’s acquittal. Additionally, Keach said there didn't appear to be any evidence to charge Diane Marriott.

Since the dogs’ removal from the barn, Keach said Paul and Diane have experienced acts of vandalism, including repeated damage to a vehicle and the successful burning of the barn. Although the incidents have been reported to local police, no arrests have yet been made.

Additionally, Keach claimed to have received hate mail connected with the animal cruelty case.

No trial date has yet been set.

     

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