Informal Opinion No. 83-7

James A. Reed, Jr. Esq.

Attorney General of New York — Opinion
Dated: February 4, 1983

AGRICULTURE AND MARKETS LAW, §§ 114(4), 124; CRIMINAL PROCEDURE LAW, §§ 1.20(39), 150.20(3); PENAL LAW, § 10.00(3) and (4).

A dog control officer, in enforcing local dog control regulations, may issue an appearance ticket upon a reasonable belief that a person has committed a misdemeanor, whether or not committed in the officer’s presence. An appearance ticket may be issued for commission of a petty offense only upon a reasonable belief by the dog control officer that the petty offense has been committed in his presence.

James A. Reed, Jr. Esq. Town Attorney, Pittsford

You have asked whether a town dog control officer may issue appearance tickets for violations of a local leash law when the violations are not committed in the officer’s presence.

Municipalities are authorized to enact local laws or ordinances regulating the keeping or running at large of dogs, may impose civil or criminal penalties for violations of the regulations and may provide for the issuance by a dog control officer of appearance tickets in accordance with the provisions of section 150.20 of the Criminal Procedure Law (Agriculture and Markets Law, §§ 114, 124). Section 150.20(3) of the Criminal Procedure Law authorizes a public servant to issue an appearance ticket for offenses of less than felony grade when he has reasonable cause to believe that a person has committed a misdemeanor or a petty offense in his presence. Thus, it is clear that a dog control officer, in enforcing the provisions of a local leash law, may issue an appearance ticket upon a reasonable belief that a person has committed a misdemeanor, whether or not committed in the officer’s presence, but may issue an appearance ticket for commission of a petty offense only upon a reasonable belief that the petty offense has been committed in his presence. A “misdemeanor” is an offense “other than a `traffic infraction,’ for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for which a sentence to a term of imprisonment in excess of one year cannot be imposed” (Penal Law, §10.00[4]). A petty offense is a violation or a traffic infraction (Criminal Procedure Law, § 1.20[39]). A “violation” is an offense, “other than a `traffic infraction,’ for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed” (Penal Law, § 10.00[3]).

It appears from your letter to the town supervisor that your town’s ordinance provides for violators to be charged with a petty offense. Therefore, your dog control officer is authorized to issue an appearance ticket only upon a reasonable belief that an offense has been committed in his presence.

We conclude that a dog control officer, in enforcing local dog control regulations, may issue an appearance ticket upon a reasonable belief that a person has committed a misdemeanor, whether or not committed in the officer’s presence. An appearance ticket may be issued for commission of a petty offense only upon a reasonable belief by the dog control officer that the petty offense has been committed in his presence.