A couple was charged with conducting animal husbandry without proper approvals for the keeping of chickens. They alleged that the applicable town code did not apply to their possession of chickens as household pets. The couple relied on a code provision exempting household pets. Further, they stated that they met with the Town Board before purchasing the chickens to express their intention to have them as pets. Two Town Board members wrote letters of support and neighbors confirmed the husband and wife were keeping the chickens as pets.
The Court looked to whether the defining statute, as was applicable in this case, contained an exception. The Court noted that where an exception is found “completely or partially outside the statute” the exception is something that the accused could raise as a defense to the charges against them. Since the accused can raise it as a defense, the Court determined that ”household pet” exception was something the People must allege in the negative in their accusatory instrument. Notably, the People failed to allege the exception did not apply but they also failed to present evidence that there were chickens, that those chickens belonged to defendants or even that the property in question was owned by defendants. For these reasons, the Court granted defendant’s motion to dismiss.
People v. Mahoney, 2011 WL 856584 (N.Y. Just.Ct. Hyde Park,, 3/10/2011)
For an article on regulating backyard chickens, see: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1774023
There may be many cases like this, it is known only when there are investigations carried out.
By: Blaine Scott on April 11, 2011
at 5:44 am