By JEFF MORRIS
It was standing-room only in Bedford Town Court on Wednesday as the animal cruelty case against Penny Berk was on the docket. But those in attendance did not get to hear any testimony.
Town Justice David Menken, citing multiple instances of ex parte communication, removed himself from presiding over the case. And, he said, Bedford’s other town justice, Jodi Kimmel, had already recused herself, owing to her having boarded dogs at Northwind Kennels, which Berk owns.
As a result, Menken said either another judge would have to be brought in, or the case would have to be moved to a different venue. He adjourned the case, Sept. 25, until Wednesday, Oct. 9.
It was obvious from the start that this particular case was the reason so many people were in attendance, as a large number were wearing Westchester SPCA shirts, and many wore the uniform of the Humane Law Enforcement Unit of SPCA Westchester.
Berk was arrested July 18 by that unit and charged with five counts of animal cruelty.
The charges were based on the discovery of four sick Bernese mountain dog puppies and their mother, who were all suffering from distemper and subsequently had to be euthanized, at Rescue Right, an animal rescue organization run by Berk and co-located with Northwind Kennels located on Route 22, Bedford.
It was alleged they were denied proper medical care, and according to the SPCA, the unspayed female was originally brought to Rescue Right from a puppy mill along with an unneutered male, with whom she was co-kenneled, and she was then impregnated.
The court session, scheduled to begin at 3:30 p.m., was brought to order by Menken about five minutes late. He immediately issued a warning to the crowd, noting it was not a public hearing, though the public was invited.
“In this court, everybody is polite and maintains decorum,” he said, scanning the room.
Menken said he was going to call the Berk case first, but “they’re not here.”
He advised those present that when they arrived, he was going to have a conference in his chambers with her attorney and the district attorney.
After several other cases were heard, Berk and her attorney, Anthony J. Siano of White Plains, arrived about 20 minutes late. As promised, Menken moved to his chambers along with the attorneys.
When he emerged about 10 minutes later, Menken said he was recusing himself because he had “received ex parte communications from members of the community,” and that Judge Kimmel had also recused herself because she had boarded dogs at the kennel.
“We will probably have to have the case heard by a different court,” he said.
Any communication between a judge or juror and a party to a legal proceeding or any other person about the case made outside of the presence of the opposing party or the opposing party’s attorney is considered ex parte. According to the American Bar Association, “a judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter.”
Menken said he had originally intended to hear the case, but because of communications he had repeatedly received, “including at 7:45 a.m., I cannot continue.”
With the case adjourned until Oct. 9, the district attorney could be heard requesting that Berk’s counsel arrange to speak with representatives of the SPCA regarding the accusations.
Menken then allowed members of the public who had no further interest in the court proceedings time to leave. Most of those present immediately filed out, while Berk, her attorney and a few supporters stayed behind in the back of the room, apparently to avoid coming into contact with those who were leaving.