By Joel Stashenko, From New York Law Journal

An upstate appellate court has refused to entertain a writ of habeas corpus to relocate a chimpanzee named Kiko from the Primate Sanctuary in Niagara Falls to a different sanctuary.

The unanimous panel of the Appellate Division, Fourth Department, became the second Appellate Division panel within a month to deny habeas corpus petitions filed by a Florida-based animal rights group seeking to end the allegedly inhumane “imprisonment” of chimpanzees.

The petitioners in both cases, the Nonhuman Rights Project, said it is appealing both rulings.

The Fourth Department ruled that habeas corpus does not apply in a proceeding where a petitioner wants to improve conditions rather than end the confinement.

“It is well settled that a habeas corpus proceeding must be dismissed where the subject of the petition is not entitled to immediate release from custody,” the justices ruled Jan. 2 in an unsigned decision in Matter of The Nonhuman Rights Project v. Presti, 14-00357.

The court cited a series of habeas cases involving the confinement of humans as supporting its position denying the petition, including People ex rel. Kaplan v. Commissioner of Correction of City of N.Y., 60 NY2d 648 (1983).

The judges said that even assuming, for the sake of argument, that Kiko’s human-like qualities make the 28-year-old chimp eligible for the legal status of a human being, “habeas corpus does not lie where a petitioner seeks only to change the conditions of confinement rather than the confinement itself.”

The Nonhuman Rights Project wants the court to order that Kiko be removed from the Niagara Falls sanctuary and placed in one operated by the North American Primate Sanctuary Alliance.

Justices Nancy Smith (See Profile), Erin Peradotto (See Profile), Stephen Lindley (See Profile), Joseph Valentino (See Profile) and Gerald Whalen (See Profile) joined in the Fourth Department ruling.

The decision upheld a Dec. 11, 2013, denial by Niagara County Supreme Court Justice Ralph Boniello (See Profile).

Steven Wise, the executive director and counsel to the Coral Springs, Fla.-based Nonhuman Rights Project, said he will ask the Fourth Department to grant leave to appeal the ruling to the state Court of Appeals.

Primary Sanctuary operator Carmen Presti, who owns Kiko with his wife Christie, said Tuesday the chimp is well cared for and kept in a safe and stimulating—though caged­—environment. Presti said Kiko was made deaf by being hit by an abusive trainer 22 years ago, which can make communicating with the animal difficult.

He said one of Kiko’s favorite activities is to watch the Buffalo Bills on television during the football season, when the animal is given access to a refrigerator containing treats like frozen grapes.

Presti disagreed with the Nonhuman Rights Project’s argument that Kiko and other chimps are like people in their mental abilities and capacity to feel human-like emotions.

“They are not humans, definitely not,” Presti said in an interview. “They have to be watched over.”

Presti said he and his wife are building a 30-acre nature preserve outside Buffalo where they plan to move Kiko and the 33 other primates they care for.

The Fourth Department judges took a somewhat different tack than did a Third Department panel this fall when it heard the Nonhuman Rights Project’s habeas corpus petition challenging the holding of a chimp named Tommy at a farm near Albany (NYLJ, Dec. 4).

In that case, Nonhuman Rights Project v. Lavery, 518336, the court made a detailed analysis of the petitioner’s argument that Tommy is a being who suffers in confinement and that the definition of a human for purposes of habeas corpus should be expanded to include primates.

The Third Department concluded unanimously that chimpanzees are fundamentally different than humans in the eyes of the law.

“Chimpanzees cannot bear any legal duties, submit to societal responsibility or be held legally accountable for their actions,” Presiding Justice Karen Peters (See Profile) wrote for the court. “In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights—such as the fundamental right to liberty protected by the writ of habeas corpus—that have been afforded to human beings.”

Wise’s group contends that the Third Department’s ruling contained “substantial” errors of law and that, in general, the case contains novel and important issues about the legal status of primates that should be heard by the Court of Appeals.

“The question of who is a ‘person’ within the meaning of New York’s common law of habeas corpus is the most important individual issue that can come before a New York court,” Wise wrote in a memorandum of law accompanying his leave grant application. “‘Personhood’ determines who counts, who lives, who dies, who is enslaved, and who is free.”

The motion by Wise’s group is pending before the Third Department. If the court grants leave, the petitioners will ask the Court of Appeals directly to hear an appeal, Wise said.

A third habeas case, Nonhuman Rights Project v. Stanley, 13-32098, was thrown out by a Second Department panel. Wise said the Nonhuman Rights Project will seek habeas relief in a different venue.

The Long Island case is seeking release of chimps named Hercules and Leo from a laboratory at the State University of New York at Stony Brook.

IMAGE: Carmen Presti, operator of the Primate Sanctuary in Niagara Falls, is seen with Kiko, the 200-pound chimpanzee he owns. The Buffalo News

For more on this story go to: http://www.newyorklawjournal.com/id=1202714174369/Panel-Takes-Different-Tack-in-Denying-Habeas-to-Chimpanzee#ixzz3O9Im6eNE