The People of the State of New York, v. Xavier Perito, Respondent. (2026)

On March 24, 2026, Respondent Xavier Perito was arrested and charged with violating two counts of Agriculture and Markets Law (AML) § 353 (overdriving, torturing and injuring animals), a class A misdemeanor. Specifically, the criminal complaint alleges that detectives from the NYPD's Animal Cruelty Investigation Squad (ACIS) observed video surveillance from incidents on November 6, 2025, and January 2, 2026, both in an apartment hallway at 831 Bartholdi Street, Bronx, NY, which depict Respondent striking a dog multiple times with a leash about its head and face and, with a closed fist, striking and kicking another dog who used a canine wheelchair.

RELEVANT PROCEDURAL BACKGROUND

Arraignment and Seizure

Pursuant to AML § 373 (3), which provides that "(a)ny such police officer or agent or officer may also lawfully take possession of any unwanted animal from the person in possession or custody thereof," detectives seized three canines from Respondent immediately after his arrest and delivered them to the ASPCA Animal Hospital for evaluation; two out of three canines remain impounded at the ASPCA. On April 23, 2026, Respondent was arraigned as a defendant in criminal court.

June 29, 2026 Hearing

On May 1, 2026, following Respondent's arraignment in criminal court and pursuant to AML § 373 (6) (a), the ASPCA requested a hearing to determine whether Respondent would be ordered to post a bond for reimbursement of expenses incurred for the dogs' treatment. At the first scheduled hearing on June 29, before Hon. Katherine O'Brien, Respondent's counsel advised the court that he had filed an Order to Show Cause via EDDS in pursuit of specific discovery items concerning the reasonableness of the ASPCA's expenses (see June 29, 2026 Tr. at 2:23-25, 4:13-23).

However, the assigned Assistant District Attorney (ADA) informed the court that Respondent's broad discovery demands, including CPLR notices to admit, exceeded the scope of the bond hearing (see Tr. at 3:16-25). When Respondent's counsel informed the court that he could not go forward without responses to his document demands, ASPCA counsel argued that Respondent was merely trying to stall the hearing where the ASPCA had already given relevant records to the People who disclosed them as part of the criminal proceeding (see Tr. at 4: 24-25, 5:12-18, 20-22, 6:12-18). Over ASPCA counsel's objections, and the assigned ADA's entreaties that the court consider the statutory provision for an expedited hearing following the Petition filing, the matter was adjourned to July 23  ¹ (see Tr. at 3:5-7, 9:15-16, 11:7-8; see also AML § 373 [6] [1] [b]).

August 18, 2026 Hearing

At the next scheduled appearance, Respondent's counsel again asserted that the hearing could not proceed due to pending motions, and because an automatic stay of the proceeding was in effect following Respondent's recent bankruptcy filing in the Southern District (see August 18, 2026 Tr. at 2:19-23). Respondent's counsel acknowledged that he had not requested a discovery conference in the criminal matter nor did he challenge the validity of the People's Certificate of Compliance, but he reiterated that discovery demands concerning invoices for the dogs' medical care and maintenance remained outstanding (see Tr. at 7:2-4, 17-19, 22-23).² Yet Respondent's counsel, who confirmed that he had already received the People's discovery concerning the dogs' care, insisted that "we have not received it on the civil side," and he could not inform the court of what discovery remained outstanding because counsel didn't bring his motion papers or case file with him to court (see Tr. at 16:17-20, 17:14-16, 18-20).

Respondent's counsel maintained that his client's bankruptcy filing automatically stayed the bond hearing and that he had already successfully litigated the issue, however he was unable to provide this Court with the case because he didn't have his files (see Tr. at 27:1, 9-16, 20-21).

Conversely, in support of the ASPCA's contention that Respondent's bankruptcy stay does not apply to the AML § 373 hearing, its counsel submitted to this Court a decision concerning a bankruptcy debtor whose animals were seized after she was charged with animal cruelty and failure to provide proper sustenance for 23 cats where a District Court held that the commencement of the criminal action and the related requirement of the posting of security pending disposition of the criminal charges fell within the exception to the 11 USC § 362 (b) (1) stay (see Rossi v The Mohawk and Hudson River Humane Society, Case No. 1:09-MC-0021 (LEK) (ND NY 2009).

After review of case law, relevant statutes and consideration of the arguments and issues, including the statutory grant of police powers to the ASPCA to protect the welfare of animals, this Court orally ruled that Respondent's bankruptcy filing does not stay the pending proceeding, and directed the security hearing to continue.

However, Respondent's counsel maintained that he was not ready to proceed because he did not have his files, and based upon his prior litigation involving the ASPCA, he did not feel it necessary because he presumed the bankruptcy filing would stay the hearing (see Tr. at 36:17-23).

Respondent's Counsel's August 18, 2026 Correspondence/Notice

Immediately following his appearance on August 18, Respondent's counsel, without requesting a motion schedule to brief the issue, copied the Court on an eight-page letter he sent to the ASPCA's assigned attorney, Justin Thompson, Esq. which purported to put counsel on notice to "stand down immediately," concerning further prosecution of the security proceeding because of the automatic stay pursuant to 11 USC § 362 (b) (1) (see correspondence from Richard B. Rosenthal, Esq. to Justin Thompson, Esq., dated August 18, 2026 at 1). Specifically, counsel advised that Respondent's remaining dogs and the ASPCA are listed on Respondent's bankruptcy schedule as personal property of the estate and debtors as the holder of an unliquidated nonpriority unsecured claim, respectively (see correspondence from Rosenthal, Esq. to Thompson, Esq., dated August 18, 2026 at 1-2).³

Respondent's counsel asserts myriad reasons that the security proceeding is automatically stayed, namely that: the ASPCA is not a governmental unit, nor does it exercise police power, or prosecute; the security proceeding concerns reimbursement of expenses for the dogs' medical care and, thus, said demand is directed at the debtor personally; 11 USC § 362 (a) (1) stays the continuation of a judicial proceeding against the debtor which was commenced prior to his bankruptcy filing; 11 USC § 362 (a) (6) stays an act to collect, assess, or recover a pre-petition claim; and 11 USC § 362 (a) (3) stays an act to obtain possession and control over property of the estate- Respondent's dogs (see correspondence from Rosenthal, Esq. to Thompson, Esq., dated August 18, 2026 at 2).

Respondent further argues that the ASPCA had already litigated- against counsel Rosenthal- the issue of whether a bankruptcy filing stayed a security petition pursuant to AML § 373 in the matter of In re Sara Padilla, Case No. 18-12446 (SMB), and in that case purportedly filed a motion to dismiss or, alternatively, for relief from the automatic stay, wherein counsel for the ASPCA asserted that "the bond case was stayed pending discharge of the Debtor or dismissal of the case" (see correspondence from Rosenthal, Esq. to Thompson, Esq., dated August 18, 2026 at 3). Respondent's counsel deems the ASPCA to be bound by so-called arguments made by counsel as "judicial admissions" in the Padilla matter.

Additionally, Respondent's counsel attempts to distinguish the holding in Rossi, supra, where the bankruptcy stay was held not to apply to the AML § 373 (6) (a) bond hearing, by positing that Rossi has no binding effect on this Court where the record purportedly failed to demonstrate that the District Court had considered the import of, inter alia, the 11 USC § 362 (a) (6) bar against pre-petition debt collection (see correspondence from Rosenthal, Esq. to Thompson, Esq., dated August 18, 2026 at 4-5).

Counsel makes numerous, and relative to this Court's analysis, immaterial assertions concerning what he perceives to be ASPCA counsel's willful violation of the bankruptcy stay and the presumed consequences to the organization and Attorney Thompson personally (see correspondence from Rosenthal, Esq. to Thompson, Esq., dated August 18, 2026 at 4, 6-7).

Moreover, Respondent's counsel erroneously asserts a nonexistent right to circumvent this Court's order to proceed with the security hearing by demanding that the ASPCA amend its Petition to withdraw "every dollar attributable to care rendered on or before August 17, 2026," which would be without prejudice to the ASPCA's right to file a Proof of Claim in the Chapter 7 bankruptcy proceeding (see correspondence from Rosenthal, Esq. to Thompson, Esq., dated August 18, 2026 at 6).

THE COURT'S ANALYSIS

The AML § 373 (6) (a) hearing is exempt from the 11 USC § 362 (b) (1) stay

The issue presented is whether the continuation of the AML § 373 security hearing, commenced on June 29, and delayed in no small part by Respondent's counsel's dilatory tactics, including appearing at the first and rescheduled hearings unprepared for court and filing an Order to Show Cause for purportedly outstanding ASPCA discovery while acknowledging receipt of the same items from the People's CPL § 245.20 disclosures (and not challenging the People's Certificate of Compliance), is now stayed because of Respondent's bankruptcy filing. The Court now issues this written decision for the purpose of setting forth the legal and factual basis for the oral ruling delivered and to provide an accurate record of the Court's analysis. The hearing is scheduled to proceed on September 4, 2026 (see Tr. at 39:4-5). All parties are required to attend.

Respondent's counsel premises his argument that the exception from the automatic stay at 11 USC § 362 (b) (4) does not apply to the security hearing because the ASPCA "is not a governmental unit, it exercises no police power, and it does not prosecute" (see correspondence from Rosenthal, Esq. to Thompson, Esq., dated August 18, 2026 at 2). In fact, the ASPCA is vested with powers of peace officers where AML § 371 provides that:

"(a) constable or police officer must, and any agent or officer of any duly incorporated society for the prevention of cruelty to animals may issue an appearance ticket pursuant to section 150.20 of the criminal procedure law, summon or arrest, and bring before a court or magistrate having jurisdiction, any person offending against any of the provisions of article twenty-six of the agriculture and markets law. Any officer or agent of any of said societies may lawfully interfere to prevent the perpetration of any act of cruelty upon any animal in his presence. Any of said societies may refer a complaint before any court, tribunal or magistrate having jurisdiction, for the violation of any law relating to or affecting animals and may aid in presenting the law and facts before such court, tribunal or magistrate in any proceeding taken"

(see AML § 371 [emphasis added]).

Consequently, while undisputably not a governmental unit, the statute enumerates police powers granted by the state to impounding agencies such as the ASPCA which authorize its agents and officers to seize animals, file petitions before a magistrate to effectuate a seizure, make arrests and issue desk appearance tickets in furtherance of the need to address exigent circumstances caused by a "crowded or unhealthy condition" or "unhealthful or unsanitary surroundings" where an animal is "not properly cared for or without necessary sustenance, food or drink" (see AML §§ 371, 372 and 373 [2]).

Thereafter, an impounding agency may petition the court to determine whether a Respondent must make remuneration for the care of the seized and/or abandoned animals (see AML § 373 [6] [a] ["(T)he duly incorporated society for the prevention of cruelty to animals, humane society, pound, animal shelter or any authorized agents thereof, hereinafter referred to for the purposes of this section as the impounding organization, may file a petition with the court in which criminal charges have been filed requesting that the person from whom an animal is seized or the owner of the animal be ordered to post a security"] [emphasis added]). Additionally, "the district attorney prosecuting the charges may file and obtain the requested relief on behalf of the impounding organization if requested to do so by the impounding organization" (see id.).

Thus, while the security hearing is not criminal in nature, the Legislature provided that Criminal Court adjudicate the proceeding, and central to this Court's determination is the fact that Respondent's arrest and arraignment as a criminal defendant was the statutory condition precedent which gave the ASPCA authority to file the instant Petition and which also vested jurisdiction over the AML § 373 security hearing in Criminal Court (see People v Scott, 59 Misc 3d 688, 695 [Crim Ct, Bronx County 2018]). As noted in Scott, supra, which primarily concerned analysis of whether the ASPCA's seizure of a Respondent's animals was subject to the protections afforded by the Fourth Amendment, the adjudication of the Petition "is one over which the Criminal Court has jurisdiction" (Scott at 695 [internal citations omitted]).

Further, the Legislative intent which fostered the enactment of AML § 373 (6) and its subsequent amendments demonstrates what the Scott court recognized as a framework "interwoven with criminal law procedure and principles" (see Scott, supra; see also 1997 NY Senate-Assembly Bill S5499, A8279 at 1 [Impounding organization first vested with right to seek a security bond for an animal which has been seized). And the Court finds support for exercising its jurisdiction to compel the continuation of the hearing in subsequent amendments which underscore the legislators' interest in expediting the proceeding. For instance, in support of 2018 NY Senate-Assembly Bill S.4796A/A.62A, then-Senator Andrew J. Lanza wrote to then-General Counsel for the Governor, Hon. Alphonso David, that:

"The issue has been raised regarding whether a criminal court has the jurisdiction to hear the petition for a security posted, therefore delaying the process and impeding a shelters [sic] ability to care for said abused animals. This legislation will clarify that such a petition may be filed with the court in which criminal charges have been filed.

This bill will save time and money ensuring that the funds necessary to take care of these injured animals can be accessed when needed."

(Senate Sponsor's Mem in Support of NY Senate Bill S.4796A

[emphasis added]).

Similarly, then-Assemblyperson Amy R. Paulin, in her own memorandum to the then-Governor's Counsel, wrote:

"The issue of whether the criminal court has jurisdiction to hear the petition for a security posting has arisen multiple times in courts throughout New York City [ ]. Judges have questioned their authority to hear these petitions, and the issue has also been raised by defense attorneys in opposition to these petitions. Each time this happens, the impounding organization that brought the petition must submit filings arguing that the court does, in fact, have jurisdiction.

Impounding organizations are almost always successful in countering any jurisdictional challenges and criminal courts will move forward with the proceeding. However, each time these challenges are raised, there is a delay in advancing with the hearing on the security request for weeks, sometimes months, while the issue is ultimately decided by the court.

This legislation will help to resolve one issue that can create significant time lags, cost shelters money, and compromise animal health and well-being. Clarifying that an impounding organization may file a petition for a security posting with the court in which criminal charges have been filed will help streamline the process for organizations seeking a security and will also help to avoid unnecessary jurisdictional challenges."

(Assembly Sponsor's Mem in Support of NY Assembly Bill A62A

[emphasis added]).

The Court recognizes that the referenced amendments to AML § 373 do not contemplate the effect of an automatic stay following a Respondent's bankruptcy filing. But they are nonetheless instructive because the amendments demonstrate the extent to which legislators were concerned that the security posting hearing is neither prolonged nor convoluted. If legislators had intended for the bond hearing to be a strictly civil matter, they could have relegated the process to Civil or Supreme Court where the parties would have been afforded expanded discovery, the hallmarks of which are motion practice, challenges concerning the sufficiency of disclosures, conferences and scheduling conflicts, all of which are time consuming, expensive and antithetical to their stated objective to streamline the process and avoid jurisdictional challenges. This is particularly germane to the central issue underlying the security hearing, to wit: the welfare of sentient beings, whose condition is susceptible to a singular form of deterioration not attributable to other types of personal property such as household goods, clothes or valuables such as jewelry. This Court, which cannot in good conscience equate the same living beings to immovable objects or currency, interprets its authority to order the hearing to be firmly rooted in the law provided by the State Legislature as well as the exception provided by federal law.

Moreover, it cannot be credibly argued that a legal proceeding, for which the statute provides an expedited hearing following the filing of the Petition, and intended to ameliorate the harm and neglect of animals, should be treated as merely an action to collect against the debtor or to obtain possession of estate property (see DeBlase et al v Hill, 87 Misc 3d 1139, 1162 [Crim Ct, Kings County 2025] ["New York's legal framework concerning household pets has significantly evolved from treating them as mere property"] [internal citations omitted]; see also Mundo v Weatherson, 74 Misc 3d 1215[A], 2022 NY Slip Op 50125[U], *3 [Civ Ct, Bronx County 2022] ["More recently, however, courts have recognized the myriad ways in which companion animals are much more than simple possessions"] [internal citations omitted]). Because the length and outcome of Respondent's bankruptcy petition is indeterminate, tethering the bond hearing to his bankruptcy petition would seem to contravene the legislative intent to advance the AML § 373 procedure.

Finally, the Court finds precedent for its continued exercise of jurisdiction in the Rossi holding, where a District Court found that the security hearing was excepted from the automatic stay pursuant to 11 USC § 362 (b) (1) (see Rossi at 3). Insofar as the AML vests jurisdiction over the instant security hearing with Criminal Court, Bronx County, this proceeding is exempt from the automatic stay and the Court affirms its order of August 18, which adjourned the hearing to September 4 (see 11 USC § 362 [b] [1], see also AML § 373 [6] [a]).

CONCLUSION

Based upon the foregoing, the Court AFFIRMS its prior holding of August 18, 2026, and FINDS that circumstances warrant the continuation of its jurisdiction over the AML § 373 hearing pending Respondent's bankruptcy filing as an exception to 11 USC §§ 362 (b) (1), (4). The parties are ordered to appear at TP3 on September 4, 2026, for the bond hearing.

This constitutes the opinion, decision, and order of the Court.

Dated: September 2, 2026

Bronx, New York

FOOTNOTES

1.   The hearing was subsequently adjourned to August 18, 2026.

2.   This Court deemed the People's Certificate of Compliance valid.

3.   At the August 18, 2026 appearance, ASPCA counsel advised the Court that one of Respondent's dogs had been euthanized for an incident unrelated to the allegations of abuse in the criminal case.

Yadhira González-Taylor, J.