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State v. Kess

July 10, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARLENE KESS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2005-095.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 16, 2008

Before Judges Sapp-Peterson and Messano.

Defendant, Marlene Kess, appeals from a judgment of the Law Division that upheld in part and reversed in part, upon de novo review, a judgment of conviction from the East Orange Municipal Court finding defendant guilty of animal abuse and of violating three local ordinances. We affirm defendant's convictions but vacate defendant's sentences and remand for re-sentencing.

Three summonses were issued against defendant on May 20, 2005, for violating City of East Orange Health Code Ordinances (ESHO) 282-1(f), 292-40 and 292-44. She was also charged with thirty-eight counts of animal cruelty, N.J.S.A. 4:22-17. Trial commenced in the East Orange Municipal Court on July 20,*fn1 2005, and continued over six non-consecutive days.

Pascale Nuwocka (Nuwocka),*fn2 Registered Environmental Health Specialist with the East Orange Health Department (Health Department), testified that on May 19, 2005, he received a call from his supervisor, Frank Habegger (Habegger), directing him to investigate a complaint of the smell of dead bodies behind the East Orange Board of Education (Board) building. When Nuwocka arrived at the building, he pulled into a driveway located in the rear and adjacent to a day care center. He proceeded to a back yard, where he observed a male digging a hole. He saw sixteen to twenty-one black garbage bags in the back yard and detected the smell of decaying body flesh but was unable to determine what was in the bags. Shortly after arriving, defendant exited the house and spoke with Nuwocka. When Nuwocka asked defendant about the content of the bags, she initially refused to answer but later revealed that there were animals in the bags, cats and dogs. Nuwocka identified about twenty decaying cats in one open bag.

The following day, May 20, 2005, Nuwocka returned to defendant's house with Habegger to give a notice of violations to defendant. One of the notices required defendant to remove the bags on her property, and she indicated that "she would do all she could to remove the bags." That same day, defendant contracted with a garbage company to remove the bags.

Nuwocka also testified that defendant admitted that she kept sick animals with illnesses, such as leukemia, that were communicable to animals but not to humans. Although the Health Department maintained records of diseased cats, Nuwocka found no records indicating that defendant had reported any and all illnesses suffered by the cats found in her residence. Nuwocka did not perform a post-mortem on the cats and, consequently, was unable to identify any disease suffered by the cats prior to their deaths.

Michael Fowler (Fowler), an Animal Control Officer for the Associated Humane Society, was also present at defendant's residence on May 19, 2005. In his testimony, he described the odor in defendant's back yard as being so intense that persons at the scene had to "turn around and go back and put masks on" to reduce the odor and prevent breathing infections transmittable through the air. When he returned to the premises, he noticed that there were twenty-one black garbage bags all around defendant's property. He described the hole in defendant's back yard as approximately seven to eight feet in length, four to five feet in width and about three to four feet deep.

Habegger's testimony confirmed the strong odor of decaying flesh on defendant's property and his observation of an accumulation of plastic bags and the hole in the back yard. He asked defendant how long the bags had been in the back yard and she advised him that they had been there since the winter.

The State also called Sergeant Joe Biermann (Biermann) of the Law Enforcement Division of the New Jersey Society for the Prevention of Cruelty to Animals (SPCA) as a witness. According to Biermann, he went to defendant's home on May 19, 2005. When he arrived, he read defendant her Miranda*fn3 rights and requested that she sign a consent to search form, which she did. He observed twenty-one bags on the premises and was able to determine the contents of eighteen of the twenty-one bags. He approximated that there were 200 dead cats in total with an average of ten cats per bag. He described the contents of the bags as contain[ing] rotting flesh of animals and they were infested with maggots and all sorts of creatures crawling throughout the bags. It was very putrid smelling. As soon as I got out of the vehicle I immediately identified the smell, heavy smell of something rotting as well as a heavy urine-type smell that I've smelled before with other houses that have a lot of cats.

It was reported to Biermann by the Associated Humane Society (AHS) that approximately thirty-five to thirty-eight cats were roaming in the house, most of which were located in one of the front rooms. Biermann immediately told defendant to separate the sick cats from the healthy ones in order to "keep any animals that had upper respiratory or communicable diseases as far as leukemia" separate from the healthy ones. He took photographs of the exterior areas of defendant's house, but indicated that he was unable to take photographs of the interior because it was too difficult to breathe due to the overwhelming smell in the house.

Biermann returned to defendant's residence the following day. By the time he arrived, defendant had separated the sick cats from the healthy ones as he had requested. A total of eighteen cats were placed in cages in the designated sick room and some of the cages had intravenous bags hanging from them. Several of the cats in the sick room showed signs of upper respiratory disease or illness as they exhibited pussy eyes, runny noses and difficulty in breathing. Biermann asked defendant how there could be so many dead cats on her property when she had only been there for approximately nine months. She informed him that she took in sick cats with leukemia and other diseases and that the cats died from leukemia. She also informed him that the hole in the back yard was dug because she planned to plant a tree.

Biermann requested veterinary records from defendant so that he could inventory the cats in her house but defendant never provided any such records. She did inform him that she would provide the medical records, as she had a veterinarian that had provided over $60,000 in medical care for the cats. Biermann testified that based on his observations, defendant's house was an improper shelter because she failed to separate the sick cats from the healthy ones. Because Biermann concluded that defendant failed to provide proper shelter for the cats by commingling the healthy and the sick ones, he charged her with thirty-eight counts of animal cruelty, in violation of N.J.S.A. 4:22-17, one for each of the thirty-eight cats found in her home.

On cross-examination, Biermann acknowledged that there was no definition of "shelter" under N.J.S.A. 4:22-17. He explained that he relied upon a New Jersey State Department of Health guideline which prohibited the commingling of cats with contagious diseases with healthy ones in defining "shelter." He indicated that the guideline he used was derived from the "New Jersey Department of Health and Senior Services [] Infectious Program" and stated that "'[a]ny animal under the confinement for or with signs of communicable disease shall be separated from other healthy animals and placed in an isolation area.'"*fn4

Denton Infield (Infield), Shelter Manager and Chief Animal Control Officer with the AHS, was at defendant's home on May 19 and also testified. According to Infield, a healthy cat that becomes exposed to a sick cat with a communicable disease will become sick within seven to ten days if it is never inoculated or inoculations cease. He also testified that cats should receive vaccinations to avoid diseases when they share the same litter tray or eat out of the same bowl or live in the same commune with sick cats without dividers.

Infield took pictures of the interior area of defendant's home where the animals were housed. He referred to the photographs during his testimony. In one picture, he pointed out sick cats in carriers and noted that there were puke remnants in one of the carriers. He also pointed out another cat with red eyes and discharge in its face and nasal discharge. Infield described these as symptoms of upper respiratory infection. In another picture, he described two cats together in a carrier with one of the cats sneezing and coughing. He opined that sneezing was a sign of upper respiratory disease. He described another picture where a healthy cat was around sick cats.

Infield counted twelve cats which showed signs of upper respiratory disease. In another picture, he pointed out a cat vomiting into either a litter bowl or a food bowl. He testified that proper ventilation is extremely important for cats and that defendant should have had exhaust fans in the room for the purpose of pulling airborne viruses out of the room.

In another series of pictures, Infield described four cages with three cats and noted that defendant had used cardboard as a divider. Defendant told him the purpose of the cardboard was to prevent diseases between the cats. Infield opined that cardboard is an absorbent material that would permit the spread of diseases, and either plastic or stainless steel should have been used instead. He found the litter boxes in defendant's home to be fairly clean. However, Infield expressed concern about his observation of a sick cat moving from a litter box to a food tray that was shared by multiple cats.

The State also called Dr. George Cameron, a veterinarian, who testified that feline leukemia, while not contagious to humans, could contaminate the surface area and spread disease to other neighborhood cats. He explained that as the bodies decayed, neighborhood wells and swimming pools could also be affected. Dr. Cameron opined that it was unnecessary to determine the actual cause of death of the cats in order to establish whether defendant violated the health code because it was apparent from the sheer number of dead cats at defendant's house that some of the cats were diseased.

Further, Dr. Cameron testified that according to the Health Department, adequate shelter for a cat included proper size kennels, food, water, clean litter boxes, adequate ventilation, and separation between the kennels. He commented on the photographs proffered by the State, stating that the plastic carriers were not acceptable, there were no adequate separators between the carriers to prevent cat urine and bodily fluids from spreading because sick cats were mixed with healthy ones, and the plastic carriers were not very clean. He indicated that some photographs depicted animals exhibiting symptoms of contagious upper respiratory diseases or illnesses. He explained that feline leukemia, feline AIDS and herpes virus can be spread through saliva, urine, stool and biting. He also testified that only a veterinarian or a trained technician can give fluids through an I.V. to a sick animal.

Dr. Cameron concluded that based on the number of cats living in defendant's house, defendant's address should be classified as a kennel, "a place where you have animals . . . in numbers that would exceed that [which] you would normally have for household pets." He testified that a kennel, by law, was required to administer veterinary care and have a veterinarian of record who would be responsible for having an ongoing familiarity with each animal and their living conditions in the shelter. N.J.A.C. 8:23A-1.9.

Defendant did not testify, but produced Teresa Kubiak (Kubiak), a friend, as a witness. Kubiak testified that she had known defendant for the past four years. Kubiak indicated that she had been rescuing cats for the past twenty years, and whenever she experienced difficulty placing a cat, defendant always helped her out by taking the cats, cleaning the cats' cages, medicating the cats, and feeding the cats. In return, Kubiak became a volunteer for defendant's organization named Kitty Kind, a charitable, non-profit organization. According to Kubiak, on average, defendant had about fifty cats at her house and, normally, some were healthy while others were sick.

The municipal court judge found defendant guilty of animal cruelty under N.J.S.A. 4:22-17, and violating the ordinances as charged. The ...


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