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Case ID: 4622
Classification: Neglect / Abandonment
Animal: cat
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Thursday, May 19, 2005

County: Essex

Disposition: Convicted

Defendant/Suspect: Marlene R. Kess

Case Updates: 6 update(s) available

An East Orange woman was charged with numerous health code and animal welfare violations after hundreds of dead cats were discovered rotting in garbage bags in the back yard of her home.

Marlene Kess, who has built a reputation in Manhattan as a caretaker of homeless and dying cats, had 48 cats inside her house, including 38 in one room, authorities stated.

Out back, there were 200 vermin-infested cat corpses stuffed into garbage bags and apparently were going to be buried in a large hole that recently had been dug, said Sgt. Joseph Bierman of the state's Society for the Prevention of Cruelty to Animals.

The cats were discovered after neighbors complained about the stench.

"Oh my God, it was awful," said Michael Fowler, of the Associated Humane Societies. "The smell was horrible."

Kess, 56, is the founder and executive director of Kitty-Kind, which runs one of New York City's few no-kill shelters.

A longtime resident of Greenwich Village, Kess moved to East Orange in July. She is known for her efforts to find homes for sick cats.

Kess was cited for health code violations, including keeping an unlawful number of animals, harboring dead animals and causing an environmental hazard with the corpses. The SPCA, which enforces the state's animal cruelty laws, charged Kess with 38 counts of failing to properly shelter cats.

Authorities are allowing Kess to keep the 48 cats in her home because she promised to separate the sick animals from the healthy ones, Bierman said.

Kess said the cats died of natural causes. State SPCA spokesman Matt Stanton told the media that an investigation into the death of the cats is "ongoing."


Case Updates

State v. Kess
New Jersey
Not Reported in A.2d, 2008 WL 2677857 (N.J.Super.A.D.)

Summary: After receiving a call to investigate a complaint of the smell of dead bodies, a health department specialist found defendant burying sixteen to twenty-one garbage bags filled with decaying cats in her backyard (later investigations showed there were about 200 dead cats total). Defendant also housed 35-38 cats in her home, some of whom suffered from serious illnesses. Because the humane officer 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. While defendant claimed that she was housing the cats and attempting to nurse them back to health so they could be adopted out, the court found sufficient evidence that "commingling sick animals with healthy ones and depriving them of ventilation when it is particularly hot inside is failing both directly and indirectly to provide proper shelter." The court also affirmed the ordinance violations relating to her caring for the cats who had contagious diseases without reporting this information to the East Orange Health Department as required.

Judge PER CURIAM delivered the opinion of the court.

Opinion of the Court:
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

*1 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.

FN1. On February 23, 2006, the municipal court judge who presided over the trial reconstructed the record of the first day of trial, July 20, 2005, because the transcript for that date was lost due to a computer error.

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.

FN2. Spelled Pascale Nuwocka in the municipal court trial transcripts, Pasquale Nuwacka in the State's brief, and Paschal Nwako in defendant's brief. For the sake of consistency, he will be referred to as Pascale Nuwocka throughout this opinion.

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 postmortem 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.

*2 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.

FN3. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

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.

*3 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

FN4. Biermann did not reference the specific regulation upon which he relied. N.J.A.C. 8:23A-1.9(f) states, "Any animal under confinement for, or with signs of, a communicable disease shall be separated from other healthy animals and placed in an isolated area in order to minimize dissemination of such disease." N.J.A.C. 8:23A-1.9 applies to "kennels, pet shops, shelters and pounds[.]" N.J.A.C. 8:23A-1.2.

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.

*4 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 court sentenced defendant as follows:

Summons [Ticket No.] 060181 (ESHO 282-1[ (f) ] ): $1,250 fine, $39 court costs and 21 days in jail;

Summons [Ticket No.] 060182 (ESHO 292-40): $1,250 fine, $39 court costs and 21 days in jail to run concurrently with the first charge;

Summons [Ticket No.] 060183 (ESHO 292-44): $500 fine and $39 court fees;

Summons [Ticket No.] 005690, et al. ( N.J.S.A. 4:22-17): $250 fine, $39 court costs, 30 days community service on each offense (for a total of 38 offenses) with the New Jersey Society for Prevention of Cruelty to Animals ... or Humane Treatment and Care for Animals or a municipality's animal control or animal population control in providing assistance, to be served consecutively.

*5 Defendant is also prohibited from housing any animals in her home until the sentencing and/or payment of fines is completed.

Defendant is also ordered to immediately turn over the animals in her home to the appropriate authority.

New Jersey State SPCA shall also make random, periodic inspections of defendant's home until the sentence is completed.

Finally, in the event the defendant violates this order, she will be held in contempt of court and subject to further penalties.

Defendant's request for a stay pending appeal was denied, but granted by the Law Division. On appeal de novo before the Law Division, the trial court denied defendant permission to expand the record to include the weather temperature on May 19 and subsequently found defendant guilty of all charges. The Law Division judge reduced the $1,250 fines imposed on Summons Ticket Nos. 060181 and 060182 to $500 each and imposed fines in the aggregate of $8,500 plus court costs. The court also vacated the custodial portions of the sentences, finding that the ordinances violated did not authorize imposition of a custodial sentence. Defendant's timely appeal followed.

Defendant raises the following points in this appeal:

POINT I

THE EVIDENCE BELOW DID NOT PROVE BEYOND A REASONABLE DOUBT WITH CREDIBLE EVIDENCE THAT THE DEFENDANT WAS GUILTY OF ANIMAL CRUELTY OR CERTAIN LOCAL ORDINANCES FOR WHICH SHE WAS CHARGED.

A. THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THE DEFENDANT WAS GUILTY OF VIOLATING N.J.S.A. 4:22-17 ON THIRTY-EIGHT OCCASIONS.

(1) THE STATE NEVER PROVIDED EVIDENCE THAT [DEFENDANT] TREATED THE CATS CRUELLY UNDER THE STATUTE AND/OR CASE[ ]LAW.

(2) THE CREDIBILITY OF THE STATE'S WITNESSES SHOULD HAVE BEEN CALLED INTO QUESTION AS THEY CONTRADICTED EACH OTHER AND THEIR ACTIONS REGARDING THE CATS PROVE SAME WERE NOT MISTREATED.

(3) REGARDLESS OF THE INTERPRETATION OF STATUTE, AT TRIAL THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT CO[M]MINGLED SICK AND HEALTHY CATS.

(4) THE PRESENCE OF DEAD CATS ON THE PROPERTY WAS NOT PROOF THAT THE DEFENDANT WAS CRUEL TO THE LIVING CATS ON SAME.

(5) THE CASE[ ]LAW CITED BY JUDGE SIVILLI IS DISTINGUISHABLE FROM THE FACTS OF THE INSTANT CASE AND DESPITE ANY ALLEGED WARM TEMPERATURES, THERE WAS NO EVIDENCE THE CATS WERE OVERHEATING FROM SAME.

(6) INTERPRETATION OF WORDING OF THE STATUTE SHOULD BE CONSTRUED IN FAVOR OF THE DEFENDANT AND ANY ALLEGED CO[M]MINGLING OF SICK AND HEALTHY CATS DOES NOT CONSTITUTE ANIMAL CRUELTY UNDER THE STATUTE OR CASE[ ]LAW.

B. THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT VIOLATED THE CERTAIN LOCAL ORDINANCES OF WHICH SHE WAS CHARGED.

POINT II

IF THIS COURT AFFIRMS THE CONVICTIONS AGAINST [DEFENDANT], THE SENTENCE IMPOSED ON THE DEFENDANT WAS COMPLETELY EXCESSIVE UNDER THE CIRCUMSTANCES AND SAME SHOULD BE AMENDED.

A. MITIGATING AND AGGRAVATING FACTORS.

B. THE SENTENCES ON THE ANIMAL CRUELTY COUNTS SHOULD RUN CONCURRENT, NOT CONSECUTIVE TO ONE ANOTHER.

*6 POINT III

DEFENDANT'S CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL WAS VIOLATED AS HER COUNSEL WAS AFFORDED ALMOST NO TIME TO PREPARE THE CASE FOR TRIAL, THEREBY RENDERING ANY CONVICTIONS AGAINST THE DEFENDANT VOID.

On appeal from a de novo trial in the Law Division, we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J.Super. 244, 251 (App.Div .2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). We determine whether there was sufficient credible evidence in the record to have led to the Law Division judge's findings. State v. Johnson, 42 N.J. 146, 162 (1964). Only when we find that the trial court's findings were "clearly [ ] mistaken [ ] and so plainly unwarranted that the interests of justice demand intervention and correction" will we "appraise the record as if [we are] deciding the matter at inception and make [our] own findings and conclusions." Ibid. See also State v. Avena, 281 N.J.Super. 327, 333 (App.Div.1995).

I.

Citing N.J.S.P.C.A. v. Bd. of Educ. of East Orange, 91 N.J.Super. 81 (Law Div.1966), aff'd, 49 N.J. 15 (1967), defendant contends, initially, that there was no evidence she acted with any "malevolent or mischievous motive" or that she inflicted "unjustifiable" pain on the cats. Rather, the evidence disclosed that defendant housed cats that were sick and cared for them, nursing them back to health for adoption purposes.

A conviction under N.J.S.A. 4:22-17(a)(3) does not require proof of purposeful or malicious conduct. The statute is silent as to the requisite state of mind necessary for conviction. Where a statute does not specifically state the requisite mental state necessary to establish culpability, there must be proof that the actor acted knowingly. State v. Sewell, 242 N.J.Super. 499, 503 (App.Div.1990), aff'd, 127 N.J. 133 (1992).

A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. Knowing, with knowledge or equivalent terms have the same meaning.

[ N.J.S.A. 2C:2-2b)(2).]

We are satisfied that given the physical description of the cats observed roaming in her home, together with the interior climate conditions experienced by those witnesses who were at defendant's home to investigate the conditions on May 19, 2006, there was sufficient evidence before the court to find beyond a reasonable doubt that defendant acted knowingly in commingling healthy and sick cats under the circumstances that she did. The municipal court judge found credible the testimony of the witnesses that the diseased condition of some of the cats was readily visible to them when they conducted their investigation on May 19, 2006. A person of ordinary intelligence may reasonably know that commingling sick animals with healthy ones and depriving them of ventilation when it is particularly hot inside is failing both directly and indirectly to provide proper shelter. N.J.S.A. 4:22-17(a)(3).

*7 Likewise, we reject defendant's suggestion that cruelty is only established with proof of willful or wanton behavior. N.J.S.A. 4:22-17(a)(3) expressly states that cruelty may be found based on both "direct" and "indirect" actions that can include "unnecessarily fail[ing] to provide a living animal ... of which the person has charge either as an owner or otherwise with proper ... shelter or protection from the weather." Although the statute does not define "proper shelter or protection from the weather," we are satisfied that the ordinary definition of these terms is appropriate. See In re Woodhaven Lumber & Mill Work, 123 N.J. 481, 493 (holding in the absence of a statutory definition of a word, we turn to its ordinary meaning). Given the ordinary meaning of the words "proper," "shelter," and "protection," we are certain that those definitions include preventing the commingling of sick and healthy cats under intense heat conditions within a home as was described by the witnesses.

While there is no New Jersey case that has specifically addressed this issue, the District of Columbia Court of Appeals considered this issue in Tuck v. United States, 477 A.2d 1115 (D.C.1984), where the defendant was found guilty of one count of cruelty to animals. Tuck, supra, 477 A.2d at 1117. The defendant was a pet store owner. Ibid. A cruelty investigator from the humane society visited the defendant's store and eventually summoned other officers to the defendant's store. Ibid. The temperature on the day of the incident was at least 103 degrees Fahrenheit. Ibid. Two animals, a puppy and a rabbit, were observed in the closed unventilated display window of the defendant's store. The officers asked the defendant to remove the puppy and the rabbit from the display window, and after he reluctantly did so, the officers testified the puppy perked up immediately. Ibid. The officers testified that they believed the rabbit was apparently suffering more than the puppy from the extreme heat and had to receive veterinarian treatment. Ibid. The defendant was charged with animal cruelty. Id. at 1117-18. The trial court found there was probable cause for the officers to believe that the two animals, especially the rabbit, had not received proper protection from the weather, in violation of D.C.Code ยง 22-801, which provides:

Whoever, ... having the charge or custody of any animal, either as owner or otherwise, inflicts ... or unnecessarily fails to provide the same with proper food, drink, shelter or protection from the weather, shall for every such offense be punished by imprisonment in jail not exceeding 1 year, or by fine not exceeding $250, or by both such fine and imprisonment.

[ Id. at 1117 n. 1.]

On appeal, the District of Columbia Court of Appeals affirmed the trial court's decision, finding that there was a compelling societal need to protect the animals. Id. at 1120-1121.

*8 Here, there is sufficient credible evidence in the record to have led the trial court to find defendant guilty of animal cruelty. Johnson, supra, 42 N.J. at 162. The State's witnesses testified concerning the horrid conditions inside defendant's house on May 19, 2005. The witnesses who entered the house on May 19 and who testified, confirmed that they observed sick and healthy cats commingled.

The language of N.J.S.A. 4:22-17 is similar to the language of the statute under which the defendant was convicted in Tuck, supra. As were the circumstances with the rabbit and the puppy in Tuck, supra, the trial court found the record revealed the thirty-eight cats in defendant's home did not receive proper protection from the weather, namely the heat. 477 A.2d at 1117-18. The heat, coupled with the smell of cat urine and feces and the commingling of healthy and sick animals, was enough evidence to find defendant guilty of animal abuse for failing to provide proper shelter for the thirty-eight cats living in her home.

Defendant next contends that the State failed to proffer sufficient evidence to prove beyond a reasonable doubt that that she was guilty of animal cruelty on thirty-eight occasions. She alleges that there were inconsistencies in the testimony of the State's witnesses. For instance, she questions how one person present at her residence on May 19 was able to take pictures of the inside of her home while another testified during the trial that he was unable to take interior photographs because of the warm temperature and odor. She contends that the most ridiculous part of the State's investigation was that despite the allegedly horrid and sickening conditions officials discovered at her house on May 19, everything was reportedly satisfactory and acceptable the following day and the cats were not removed. She suggests that the State's witnesses exaggerated and embellished their testimony because of the intense media scrutiny surrounding the case.

These objections relate to credibility determinations. In a de novo review of the record, the Law Division judge is bound by the credibility determinations of the municipal judge, as long as the de novo court is satisfied the findings could reasonably have been reached on sufficient credible evidence in the record. State v. Locurto, 157 N.J. 463, 472 (1999). As a reviewing court, we are similarly bound. Ibid. We discern no basis on this record to disturb those findings.

II.

Defendant also challenges her conviction under two of the three FN5 local ordinances. She argues that there was no proof that she violated Section 292-44 because the State failed to prove that any of the dead cats were diseased. ESHO Section 292-44 states in part:

FN5. Defendant concedes that she was guilty of Section 282-1(f).

Every veterinarian who shall attend any animal in the City of East Orange affected with or suspected to be affected with anthrax, glanders, farcy, foot and mouth disease, rabies, tuberculosis or any other communicable disease shall file with the Health Department, within 12 hours thereafter, a written report stating the name of the disease, the kind of animal, the precise location of such animal.... In case no veterinarian shall attend such animal, then it shall be the duty of the owner or person in charge to file such report with the health department.

*9 The witnesses testified that some of the cats in defendant's home showed signs of upper respiratory illness. Biermann testified that some of the cats had discharge from the eyes and nose, puffy eyes, and labored breathing. Moreover, Biermann also testified that defendant informed him that she took in sick cats with leukemia and other diseases and that the cats died from leukemia. Further, Dr. Cameron testified that based on the sheer number of dead cats found in defendant's back yard, it was clear that some of the animals were diseased. Notably, Kubiak, defendant's witness, also testified that many of the cats in defendant's house were diseased.

These witnesses testified relative to their personal experiences in dealing with animals for years in their respective positions. We are satisfied that they possessed the background and experience to render lay opinions about the condition of the cats observed on May 19. See State v. LaBrutto, 114 N.J. 187, 199-202 (1989) (holding a police officer investigating a motor vehicle accident scene should generally be permitted to offer a lay opinion, based upon observations, as to the point of impact); see also Pierson, Jr. v. Frederickson, 102 N.J.Super. 156, 163 (App.Div.1968) (holding witness permitted to give opinion on speed of moving vehicle based upon auditory perception). Likewise, Dr. Cameron, who was offered, without objection, as an expert in the field of veterinary care of domestic animals, was qualified to render an expert opinion on the condition of the cats observed roaming in defendant's home, as well as the likely condition of the dead cats prior to their death. N.J.R.E. 702. Thus, the State presented substantial evidence from which the court could reasonably infer that there were diseased cats among the healthy cats.

The trial court found that defendant violated ESHO 292-44 "by failing to report to the East Orange Health Department that she had numerous cats in her home with upper respiratory illnesses and leukemia, contagious diseases." Although the State's witnesses testified that they could not perform a necropsy because the cats found in the garbage bags were badly decomposed, the State still offered enough proof, through testimony, that at least some of the dead cats were diseased. There was no evidence that defendant reported to the Health Department the condition of the sick cats. She informed investigators that she was unaware that any of the cats had any diseases that were communicable to humans. The ordinance, however, does not distinguish between humans and other animals. Since there is credible evidence in the record to have led the trial court to find that some of the dead cats were diseased, Johnson, supra, 42 N.J. at 162, the trial court did not err in finding defendant in violation of ESHO 292-44.

Additionally, defendant challenges her conviction under ESHO 292-40, which provides that

[n]o owner, tenant, lessee or person in charge of any building, house, store, apartment, room or place shall maintain the same or permit the same to be maintained in any state of uncleanliness or filthiness or in an unsanitary manner which may be or may become a detriment to health.

*10 Defendant contends that Dr. Cameron's testimony concerning the spreading of diseases should be ignored because there was no evidence that any of the deceased cats had any diseases or whether they were ill when they died. We disagree.

The record disclosed that there were visible signs of a state of uncleanliness in defendant's home, which were a detriment to good health. Those signs included commingling of obviously unhealthy cats with healthy ones, the remains of dead cats on the premises from which foul odors were emanating, and the proximity of the day care center to these conditions.

III.

Defendant asserts that even if this court finds that she was guilty of animal cruelty, the sentence imposed upon her was excessive under the circumstances and should be amended. We agree.

"The imposition of an appropriate sentence is entrusted to the sound discretion of the sentencing judge. Thus, the scope of appellate review is normally limited to the question of whether that discretion has been abused by the imposition of a sentence which is manifestly excessive under the particular circumstances of the case." State v. Leggeadrini, 75 N.J. 150, 156-57 (1977) (citations omitted). Generally an appellate court will not revise a sentence that is within the statutory limits absent a clear showing of abuse of discretion, State v. Tyson, 43 N.J. 411, 417 (1964) (citing State v. Benes, 16 N.J. 389, 396 (1954)). However, in the interests of justice, an appellate court has the power to modify any sentence that is manifestly excessive, even if the sentence is within the statutory limits. R. 2:10-3; State v. Bess, 53 N.J. 10, 18 (1968); State v. Laws, 51 N.J. 494, 509-510 (1968).

Defendant was convicted of violating ESHO 282-1(f), 292-40, and 292-44. A violation of each ordinance authorizes the imposition of a fine of not less than $200 and nor more than $500. In addition, N.J.S.A. 4:22-17 provides that any person found guilty of animal cruelty "shall be fined not less than $250 nor more than $1,000, or be imprisoned for a term of not more than six months, or both, in the discretion of the court." N.J.S.A. 4:22-17(a)(3). Further, a court, in its discretion, may

impose a term of community service of up to 30 days, and may direct that the term of community service be served in providing assistance to the New Jersey Society for the Prevention of Cruelty to Animals, a district (county) society for the prevention of cruelty to animals, or any other recognized organization concerned with the prevention of cruelty to animals or the humane treatment and care of animals, or to a municipality's animal control or animal population control program.

[ N.J.S.A. 4:22-17(c).]

The Law Division judge vacated the two $1,250 fines the municipal court judge imposed for defendant's violation of ESHO 282-1(f) and ESHO 292-40. The trial court also vacated the two twenty-one-day jail terms the municipal court imposed on each ordinance violation, finding that a custodial sentence was not an authorized disposition for a violation of the two ordinances. The court then imposed a separate fine of $500 plus $39 court costs for defendant's violation of Sections 282-1(f), 292-40, and 292-44, respectively. The court also imposed a fine of $250, $39 court costs and 30 days of community service for each of the thirty-eight charges of animal cruelty in violation of N.J.S.A. 4:22-17.

*11 The trial court appropriately considered the aggravating and mitigating factors in sentencing defendant. N.J.S.A. 2C:44-1(a)-(b). However, the court did not place on the record its rationale for treating each offense, at least for sentencing purposes, as separate offenses. In State v. Yarbough, 100 N.J . 627, 642 (1985), our Supreme Court directed courts engaged in sentencing a defendant on multiple convictions to consider whether the offenses were predominantly independent of each other, both in objective and acts, were committed at different times or separate places, and whether the offenses involved multiple victims. These factors should be "applied qualitatively, not quantitatively." State v. Carey, 168 N.J. 413, 427 (2001). Because the trial court did not include a qualitative analysis of defendant's conduct under the Yarbough standard, we are constrained to vacate defendant's sentence and remand for re-sentencing in accordance with the considerations outlined in Yarbough, supra.

The defendant's convictions are affirmed. Defendant's sentences are vacated and the matter remanded to the Law Division for re-sentencing consistent with this opinion. We do not retain jurisdiction.

N.J.Super.A.D.,2008.
Source: State v Kess
Update posted on Feb 10, 2012 - 11:07AM 
Kess has since left the State of NJ and is believed to be living somewhere in NYC.
Update posted on Mar 25, 2007 - 12:55AM 
A state judge on Thursday scrapped a 21-day jail term in an animal cruelty case, but upheld an order that Marlene Kess perform 1,140 days of community service.

Kess also must pay more than $12,000 in fines under the sentence imposed by Superior Court Judge Nancy Sivilli. A municipal judge in East Orange originally imposed a fine of $14,000 along with the jail term in 2005.

Thursday's ruling came after Kess appealed the sentence.

Kess faced charges after 200 dead cats were found rotting in garbage bags in her East Orange back yard in May 2005.

About 100 live cats were found inside her home, and several had to be destroyed because of illness, authorities said.

She was convicted of 38 counts of animal cruelty and three health code violations by the municipal judge in 2005.

Sivilli ordered that Kess do her community service with the New Jersey Society for the Prevention of Cruelty to Animals or a municipal animal control agency.

Kess was also barred from housing any animals and must surrender any current pets to animal control authorities while she completes her sentence, the Essex County Prosecutor's Office said.

Kess had built a reputation in Manhattan as a caretaker of homeless and dying cats. She founded KittyKind, a no-kill rescue group based in New York. A longtime resident of Greenwich Village, Kess moved to East Orange in July 2004.
Source: 1010 Wins - March 15, 2007
Update posted on Mar 17, 2007 - 1:04PM 
The woman convicted of dumping 200 rotting cat carcasses in her East Orange backyard posted bail yesterday.

One week after being slapped with a 21-day jail term and more than three years of community service, Marlene Kess, 56, handed over a certified check for $14,099 and walked out of East Orange municipal court.

"I am not the cat lady they are making me out to be," she said.

But other cat welfare officials disagree.

"Everyone who has seen photos of the house and conditions has broken down and cried in front of me," said Denton Infield, who manages the Associated Humane Society of Newark's shelter, the agency busily reuniting Kess' cats with their worried owners.

Kess was convicted earlier this month of various health code violations and animal abuse charges in connection with the May 19 discovery that garbage bags in her backyard were filled with dead cats. Dozens more live cats, some sick and without proper food and water, were found inside the home.

East Orange Municipal Court Judge Karimu Hill-Harvey sentenced Kess to a 21-day jail term, three years and two months of community service, a $14,099 fine and prohibited her from owning animals for the next three years.

She also ordered the immediate removal of all animals from the woman's home. Animal welfare officials took 95 cats from the home and euthanized 20 because of illness.

So Kess would have an opportunity to appeal, Hill-Harvey gave her a week to post bail. Yesterday morning a technicality could have prevented Kess from avoiding jail time.

Hill-Harvey blasted the woman and her attorney, Wilfredo Benitez, when Kess attempted to pay the fee from a personal account. She was given until 3:15 p.m. to present a certified check to the court.

"If she is not back by 3:15 to post bail she will be considered an escaped fugitive and officers are authorized to arrest her," Hill-Harvey said.

Kess made the deadline. She has until Sept. 11 to file an appeal.

Meanwhile, the cats remain in limbo.

As the founder and executive director of KittyKind, which according to its Web site is a cat rescue and adoption organization, Kess built a 20-year reputation taking in abandoned and sick cats.

Many of the cats removed from her home last week were brought there by overwhelmed owners and other rescuers and shelters that had run out of space, Infield said.

Now they want them back, he said. So far 22 cats have been claimed.

Before the shelter begins adopting the cats out, those owners with evidence -- photos, veterinarian records, or animal licenses -- will be given a chance to pick up their pets.

While many expressed horror after seeing the condition of the cats, Kess still has supporters, said Roseann Trezza, the shelter's executive director.
Source: Star-Ledger - August 29, 2005
Update posted on Aug 30, 2005 - 9:59AM 
A woman was sentenced Monday to a 21-day jail term for failing to provide proper shelter for animals after about 200 dead cats were found rotting in garbage bags in her back yard, an animal welfare group said.

Marlene Kess, who had built a reputation in Manhattan as a caretaker of homeless and dying cats, was also fined $14,000 and ordered to perform 1,140 days of community service working for animal protection organizations, said Stuart Rhodes, president of the New Jersey Society for the Prevention of Cruelty to Animals.

Following the sentencing in East Orange Municipal Court, workers from both groups began removing about 60 surviving cats from the Kess home, Rhodes said. The cats were to be taken to Associated Humane Societies in Newark, checked by a veterinarian and put up for adoption if they were healthy.

Kess, 56, founded KittyKind, a no-kill rescue group based in New York. A longtime resident of Greenwich Village, Kess moved to East Orange in July 2004.

Kess, who was expected to appeal, could not immediately be reached for comment.

In May, the garbage bags containing dead cats were discovered after neighbors complained about the stench.

"I take very good care of them," Kess told reporters in May. "People who know me know there's no cruelty involved."
Source: New York Newsday - Aug 22, 2005
Update posted on Aug 22, 2005 - 4:19PM 
Municipal Court Judge Karimu Hill-Harvey is hearing the case, which began July 20. It will continue in August.
Source: East Orange Record - July 29, 2005
Update posted on Jul 29, 2005 - 11:49AM 

References

  • - May 24, 2005
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