BERNE — The man arrested for shooting Rocky and Mocha, a pair of East Berne dogs, is a neighbor who says, according to police, that they bothered his farm animals and ate his chickens.

Robert Bushnell of 468 Woodstock Road, was arrested last week on misdemeanor charges; the arrest was announced by the Albany County Sheriff’s Department at a Thursday morning press conference. Bushnell is to appear in Berne Town Court on Oct. 13. His lawyer did not return repeated calls from The Enterprise.

“It’s extremely upsetting because he lives so close,” said the dogs’ owner, Amy Tubbs, of the arrest. “What are the consequences for this heinous act?”

Tubbs had earlier described her dogs as members of the family — Mocha, a 7-year-old chocolate Labrador retriever, and Rocky, a 6-year-old Alaskan malamute.

Tubbs said that she had let out her dogs on the morning of Sept. 12 as she usually did.

“I let them out every morning for 10 or 20 minutes,” she said. “They stick close to home and come back.”

They never came back. The dogs were found dead on Cole Hill off Willsey Road, several miles from Tubbs’s home off of Woodstock Road.

Necropsies were performed, which revealed the dogs were shot at close range and, since a piece of leash was embedded in the malamute, police believed the dogs had been taken to Cole Hill rather than wandering away on their own.

Tubbs told The Enterprise the week after her dogs were found dead that she had an inkling two of her neighbors were not pleased with her dogs; one of them was Bushnell because the malamute had brought home one of his chickens.

“If my dogs wandered on someone’s property and they got pissed off, I can kind of understand it,” Tubbs said in September. But, Tubbs said, if it’s a random act of violence, which could lead to other such acts, the perpetrator needs to be caught and punished to the fullest extent of the law.

Misdemeanor arrest

 Undersheriff Craig Apple said the road to Bushnell’s arrest began with an anonymous tip, the only tip the sheriff’s department got. The tipster, being anonymous, did not receive the $3,000 in reward money that several citizens had put up.

Not wanting to have “tunnel vision,” Apple said, the department interviewed a number of neighbors.  Ultimately, Bushnell, accompanied by his lawyer, Jeffrey Lapham, made a statement.

“His reasons…[were] he lost several chickens. The dogs were chasing his farm animals,” said Apple.

Bushnell was charged with misdemeanors under Agriculture and Markets Law — two counts of dog stealing and two counts of overdriving or torturing an animal.

“I don’t like the title,” said Apple referring to the word “torture.”

 “He didn’t beat them. He didn’t burn them or pour gas on them,” Apple said, concluding, “I’m not condoning this. It makes me sick.”

When The Enterprise interviewed Apple in September, he said Buster’s Law would apply to the perpetrator because the animals were pets.

A 1997 arrest — where an 18-month-old tabby cat had been doused with kerosene and burned to death by a Schenectady teen — led to the state legislature passing Buster’s Law, which created the felony category of “aggravated cruelty to animals,” punishable by up to two years in prison and a $5,000 fine.

Apple said this week, “I know the public is a little irritated” because Bushnell wasn’t charged with felonies.

“He did shoot the dogs. He didn’t torture them,” said Apple. “This was no sadistic killing…There’s no way a felony would have stood up in court.”

“My neighbors are absolutely livid,” Tubbs said on Tuesday of the misdemeanor charge. She said there have been a lot of calls asking why Bushnell wasn’t arrested for a felony under Buster’s Law.

The district attorney’s office was meeting with the sheriff’s department on the matter on Tuesday, Tubbs said, and she was waiting to hear what input, if any, she would have.

Preventable?

Apple also told The Enterprise, “This could have been prevented with better communication….If your dogs are bringing chickens home to you, somewhere along there, there’s got to be an inquiry made. If these two people were talking,” he said of Tubbs and Bushnell, “or they tried to seek one another out,” the shooting wouldn’t have happened.

Apple went on, “If I had dogs coming to my property every day, I’d try to find their owner, and, if I had a dog bring home chickens, I’d try to find their owner.”

“I never met the man,” Tubbs said of Bushnell. His property is several hundred yards through the woods from her house and hidden from view of the road, she said. Tubbs said that Bushnell had had a fire at his house and hadn’t lived there for months.

“Communication certainly would have helped,” Tubbs said when told of Apple’s comments. “He should have said, ‘I have issues with your dogs.’ I didn’t know where the couple of chickens had come from.”

Tubbs said that the only two neighbors she had suspected were those she “knew nothing about”; the others all know her and knew her dogs.

Apple also said, “Dogs need to be under your control; that’s the bottom line.”

Berne adopted a dog control law in 1994 that states, “Dogs are to be under the control of their owner or a responsible person able to control them by command and shall not be permitted to run at large….”

“On behalf of all our members,” Apple said in September, “we have never enforced that. The Hilltowns are a rural area. Most everyone knows everyone. They will call if they find a lost dog and see that it gets back to its owner…If a dog wanders on your property, it doesn’t give you the right to shoot it.”

Cheryl Baitsholts, the dog control officer for Berne, said in September that most of the complaints she is called for in Berne have to do with neighbor disputes.

Agriculture and Markets Law allows someone to kill a dog if it is attacking or threatening a person or if is attacking a companion animal, farm animal, or domestic animal. Baitsholts pointed out in September that this doesn’t mean a farmer can kill a dog later in retribution; it must be shot while in the act.

Baitsholts writes this week in a letter to the Enterprise editor, “While stealing the dogs and shooting them was not the legal or moral course to take, dog owners must be responsible for their animals’ actions and well being.”

Tubbs said this week of her dogs, “If they were out, they should have been in eyesight at all times. I take responsibility for that.”

Tubbs, who used to live in suburban Guilderland, said that one of the reasons she moved to the country was to be able to let her dogs run, and they didn’t have a pattern of running away. “There were no complaints ever,” she said. “No one called the dog warden….

“If he had shot the dogs in his hen house then and there,” Tubbs said that would have been different than “luring the dogs into his car.”

She went on, “I’m very naïve. I like to believe bad things don’t happen.”

Asked what she’d like to have happen in court, Tubbs said, “I would like there to be restitution. I can’t get them back, but I’d like money to buy another dog and to put up a fence.”