The People, Respondent,v.Curtis Basile, Appellant.BriefN.Y.June 2, 2015To Be Argued By: BEN A. SCHATZ (15 Minutes) Queens County Information No. 2007QN068755 APL-2014-00038 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, —against— CURTIS BASILE, Defendant-Appelant, BRIEF FOR DEFENDANT-APPELLANT CURTIS BASILE SCOTT A. ROSENBERG ANDREW C. FINE DAVID CROW THE LEGAL AID SOCIETY 199 Water Street, 5th Floor New York, New York 10038 Telephone: (212) 577-3576 Facsimile: (212) 577-3523 BEN A. SCHATZ KERRY BURNS DANIELLE CHATTIN CAHILL GORDON & REINDEL LLP 80 Pine Street New York, New York 10005 Telephone: (212) 701-3000 Facsimile: (212) 269-5420 Atorneys for Defendant-Appelant Curtis Basile Date Filed: June 6, 2014 i TABLE OF CONTENTS Page PRELIMINARY STATEMENT ................................................. i QUESTIONS PRESENTED ................................................... vi SUMMARY OF ARGUMENT.................................................. 1 STATEMENT OF FACTS ..................................................... 5 ARGUMENT .............................................................. 16 I. THE TRIAL COURT ERRED BY REFUSING TO INSTRUCT THE JURY THAT § 353 REQUIRES PROOF OF MENS REA ...................... 16 A. Section 353 must be interpreted in a manner consistent with New York’s strong presumption against strict liability .................. 18 B. Considering § 353 in light of other laws demonstrates that it is far from “clear” that the New York Legislature intended § 353 to impose strict liability ............................................. 20 C. The lower courts’ reliance on A.M.L. § 43 was misplaced ........... 25 1. The history of A.M.L. § 43 ............................. 27 2. The history of A.M.L. § 353 ............................ 29 D. A vast majority of other States’ comparable animal cruelty laws require proof of mens rea .................................... 32 E. A properly charged jury could have concluded Mr. Basile did not act with knowledge ........................................... 35 II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO INSTRUCT THE JURY THAT THE CIRCUMSTANCES SURROUNDING DEFENDANT’S ALLEGEDLY CULPABLE CONDUCT COULD SUPPORT A DEFENSE TO THE CHARGE OF “UNJUSTIFIABLY INJUR[ING]” HIS DOG UNDER § 353 .............................. 36 A. “Unjustifiable” conduct under § 353 is that which is not reasonable, defensible, right, unavoidable, or excusable...................... 38 B. A properly charged jury could have concluded Mr. Basile’s conduct was not “unjustified” ....................................... 39 CONCLUSION ............................................................ 41 ADDENDUM .............................................................. 42 i TABLE OF AUTHORITIES Cases Page(s) Abate v. Mundt, 25 N.Y.2d 309 (1969), af’d, 403 U.S. 182 (1971) ...................... 31 Albunio v. City of New York, 2014 N.Y. Slip Op. 02325 (Apr. 3, 2014) ............................ 32 Bischof v. Ilinois S. Ry. Co., 83 N.E. 948 (Il. 1908) .......................................... 22n Dauphine v. United States, 73 A.3d 1029 (D.C. 2013) .................................... 22n, 32 People ex rel. Freel v. Downs, 136 N.Y.S. 440 (N.Y.C. Magis. Ct. 1911)............................ 38 Hammer v. Am. Kennel Club, 304 A.D.2d 74 (1st Dep’t 2003) ................................ 29, 40n J. A. Preston Corp. v. Fabrication Enterprises, Inc., 68 N.Y.2d 397 (1986) ........................................... 32 Liparota v. United States, 471 U.S. 419 (1985) .................................... 18, 20, 23, 25 Morissete v. United States, 342 U.S. 246 (1952) ....................................... 17, 18, 27 People v. Alen, 657 P.2d 447 (Colo. 1983) ....................................... 22n People v. Arcidicono, 79 Misc. 2d 242 (App. Term 1974) ................................. 13 People v. Arroyo, 3 Misc. 3d 668 (N.Y.C. Crim. Ct. Kings Co. 2004) ........... 17n, 37, 38, 40 People v. Basile, 40 Misc. 3d 44 (App. Term 2d Dep’t 2013) ................. 16, 36n, 40-41 i People v. Brian, 168 Cal. Rptr. 105 (App. Dep’t Super. Ct. 1980) ................... 23n, 34 People v. Bunt, 118 Misc. 2d 904 (Rhinebeck Just. Ct. Dutchess Cnty. 1983) ............ 17n People v. Burwel, 53 N.Y.2d 849 (1981) ........................................... 41 People v. Byrne, 77 N.Y.2d 460 (1991) ........................................... 24 People v. Carr, 183 Misc. 2d 94 (Orchard Park Just. Ct. Erie Cnty. 1999)............ 22n, 40 People v. Chesler, 50 N.Y.2d 203 (1980) ........................................... 19 People v. Coe, 71 N.Y.2d 852 (1988) ........................................... 18 People v. Crimmons, 36 N.Y.2d 230 (1975) ........................................... 36 People v. Green, 68 N.Y.2d 151 (1986) ........................................... 38 People v. Guiseppe, Slip Op. 2013QN070052 (N.Y.C. Crim. Ct. Queens Cnty. Apr. 7, 2014).... 22n People v. Kibler, 106 N.Y. 321 (1887) ............................................ 28 People v. Leonard, 8 N.Y.2d 60 (1960) ............................................. 24 People v. Munoz, 9 N.Y.2d 51 (1961) ............................................. 23 People v. O’Rourke, 83 Misc. 2d 175 (N.Y.C. Crim. Ct. N.Y. Cnty. 1975) ........... 26n, 38, 40n ii People v. Rogers, 183 Misc. 2d 538 (Watertown City Ct. 2000) ......................... 38 People v. Ryan, 82 N.Y.2d 497 (1993) ......................................... 3, 18 People v. Simmons, 92 N.Y.2d 829 (1998) .......................................... 22n People v. Sitors, 12 Misc. 3d 928 (Co. Ct. Schoharie Cnty. Ct. 2006) .................... 38 People v. Speegle, 62 Cal. Rptr. 2d 384 (Ct. App. 1997) ................................ 34 People v. Voelker, 172 Misc. 2d 564 (N.Y.C. Crim. Ct. Kings Cnty. 1997)........... 37, 38, 40n People v. West, 106 N.Y. 293 (1887) ............................................ 28 People v. Wiliams, 81 N.Y.2d 303 (1993) ........................................... 18 Regaldo v. United States, 572 A.2d 416 (D.C. 1990) ........................................ 33 Staples v. United States, 511 U.S. 600 (1994) .................................. 18, 23-24, 24-25 State v. Colier, 301 P.3d 370 (N.M. 2013) ........................................ 34 State v. Gadreault, 758 A.2d 781 (Vt. 2000) ......................................... 34 State v. Ham, 2009 WL 2370908 (Ohio Ct. App. Aug. 3, 2009) ...................... 34 State v. Kess, 2008 WL 2677857 (N.J. Super. Ct. App. Div. July 10, 2008) ............. 34 iv United States v. Balint, 258 U.S. 250 (1922) ............................................. 24 United States v. Doterweich, 320 U.S. 277 (1943) ............................................. 24 United States v. Freed, 401 U.S. 601 (1971) ............................................. 24 United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558 (1971) ............................................. 24 United States v. U.S. Gypsum Co., 438 U.S. 422 (1978) .......................................... 18, 20 Congressional Materials Governor’s Memo approving L. 1965, cc. 1030, 1031, reprinted in 1965 N.Y. Legis. Ann. 530 ................................................ 30 L. 1867, c. 375, § 1 ................................................ 29 Rev. Penal Law of 1965, ch. 1030, 1965 N.Y. Laws 1529. .................. 30 Rev. Penal Law of 1965, ch. 1030, 1965 N.Y. Laws 1717–1747 (Disposition Table). ............................................. 30 Law Reviews Daryl K. Brown, Criminal Law Reform and the Persistence of Strict Liability, 62 Duke L.J. 285, 320-21 (2012) ..................................... 19 David Favre & Vivien Tsang, The Development of Anti-Cruelty Laws During the 1800’s, 1993 Det. Col. L. Rev. 1, 13 (1993) ......................... 29n Statutes Cal. Penal Code § 597 ........................................... 33-34 N.J. Stat. Ann. § 4:22-17(a)(3) ....................................... 34 v N. Y. A.M.L. § 3 .......................................................... 27 § 43 ...................................................... passim § 81 ......................................................... 27 § 174 ........................................................ 27 § 353 ..................................................... passim § 353-a ....................................................... 21 § 353-b....................................................... 21 § 353-c ....................................................... 21 § 353-d....................................................... 21 N.Y. Penal Law § 15.05 ....................................................... 19 § 15.15(2) ............................................ 3, 18, 19, 31 § 26 ..................................................... 29, 29n § 35.05(2) .................................................... 37 § 260.10(1) ............................................... 22, 22n Treatises 4 Am. Jur. 2d Animals § 4 (2011) .................................... 23n Other Authorities The American Society for the Prevention of Cruelty to Animals, Animal Cruelty: The Law in New York, at 18 (August 2003) .......................... 26n David Grimm, Citizen Canine: Our Evolving Relationship with Cats and Dogs (2014) ...................................................... 23n David S. Favre & Murray Loring, Animal Law, § 9.1 ..................... 17n vi PRELIMINARY STATEMENT By leave of the Honorable Jonathan Lippman, granted on February 25, 2014, Defendant-Appelant Curtis Basile appeals from the April 22, 2013 deci- sion and order of the Appelate Term, Second Department, for the Second, Elev- enth and Thirteenth Judicial Districts, see People v. Basile, 40 Misc. 3d 44, afirm- ing the judgment of the Criminal Court of the City of New York, Queens County, rendered on December 1, 2009, convicting Mr. Basile, after a jury trial, of one count of animal cruelty (Agriculture and Markets Law § 353) and sentencing him to three years of probation and forty-five days of community service, which Mr. Basile has completed. The questions presented on this appeal were preserved by defense counsel at the close of the People’s case (Ex. 3, 170-74), at the close of Defend- ant’s case (Ex. 3, 189-190), and during the charge conference (Ex. 3, 197-201). A motion to alow this appeal to be heard in forma pauperis is pend- ing. vi QUESTIONS PRESENTED 1. Did the trial court commit reversible error by refusing to instruct the jury that conviction under New York’s animal cruelty statute, Agriculture and Markets Law § 353, requires proof of mens rea? 2. Did the trial court commit reversible error by refusing to instruct the jury that the circumstances surrounding Defendant’s alegedly culpable con- duct—including his dire financial circumstances and inability at times to feed himself more than once a day—could support a defense to the charge of “unjustifiably injur[ing]” an animal under § 353? 1 SUMMARY OF ARGUMENT In 1867, New York became the first state to pass comprehensive ani- mal cruelty legislation. In the nearly 150 years since that time, the language of that pre-modern legislation—currently embodied in Agriculture and Markets Law (“A.M.L.”) § 353—has hardly changed at al. It is no surprise then, that at Curtis Basile’s 2009 trial, the court echoed the uncertainty already expressed by numer- ous other courts as to how to reconcile § 353’s archaic language with modern prin- ciples of criminal law. This Court has yet to provide lower courts with guidance on that score. Mr. Basile was charged under § 353 for not feeding his dog enough food, and the People sought to prove nothing more than that at trial. The undisput- ed evidence, however, reflected that Mr. Basile had been in an accident, was out of work and, as he testified, was in “financial dires.” He was unable to aford dog food. At times, Mr. Basile was eating only once a day. He nonetheless did his best, feeding his dog scraps of food from his own plate—“whatever leftovers or whatever scraps he [could] provide.” He made several unsuccessful eforts to find the dog a beter home. An ASCPA oficer ultimately persuaded Mr. Basile to vol- untarily surender the dog to the ASPCA’s care. A veterinarian found the dog to be emaciated, but, owing to the dog’s long-haired coat, conceded that the dog’s condition might not have been apparent to a lay owner. In the veterinarian’s care, 2 the dog was deemed healthy in a mater of weeks. Mr. Basile was nonetheless ar- rested about a month later. He was charged under § 353, which provides that a person who “deprives any animal of necessary sustenance, food or drink, or ne- glects or refuses to furnish it such sustenance or drink, or causes, procures or per- mits any animal to be overdriven, overloaded, tortured, cruely beaten, or unjustifi- able injured” is guilty of a misdemeanor. At trial, the defense argued that the jury should be permited to acquit if it found that Mr. Basile was not aware of the dog’s condition or if he acted rea- sonably in light of the surounding circumstances. The People asserted they were required to prove nothing more than that the dog had, in the language of § 353, been “deprived of necessary sustenance” and that the jury’s consideration of Mr. Basile’s mental state was “irelevant and inappropriate.” The trial court ultimately agreed with the People and refused to alow the jury to consider Mr. Basile’s men- tal state or the justifiability of his conduct in light of the surounding circumstanc- es. Not surprisingly, the trial court’s charge led the jury to convict. Mr. Basile’s conviction should be reversed for two reasons: First, the trial court commited reversible eror by refusing to instruct the jury that conviction under § 353 requires proof that Defendant acted with a culpable mental state. The trial court held, and the Appelate Term afirmed, that § 353 is a strict liability statute. These holdings are unsustainable in light of: 3 the Legislature’s codification of the modern rule that a criminal law defines a crime of mental culpability absent clear legislative intent to impose strict liability. N.Y. Penal Law § 15.15(2); this Court’s adherence in numerous cases, see, e.g., People v. Ryan, 82 N.Y.2d 497 (1993), to the presumption that strict liability statutes are disfa- vored and may only be efectuated through “clear” legislative intent; the Legislature’s express incorporation of a mens rea element in four neigh- boring animal cruelty statutes and in New York’s child welfare statute, each enacted in the modern era; cases demonstrating that § 353 is not the type of regulatory “public welfare” law that permits strict liability; legislative history, unexamined by the courts below, that undermines the conclusion that the Legislature intended § 353 to impose strict liability; and comparable animal cruelty statutes from an overwhelming majority of American jurisdictions that expressly require, or have been interpreted to re- quire, proof of a culpable mental state. Courts in several states whose stat- utes are modeled on New York’s have interpreted those statutes to comport with a mens rea requirement. In short, the only interpretation of § 353 that is consistent with logic, fairness and the Legislature’s intent is one that defines a crime of mental culpability. In particular, we submit that requiring proof that Mr. Basile acted “knowingly”—the same mental state that must be proved to convict a defendant of endangering the welfare of a child—is properly reflective of the Legislature’s in- tent. Given their aggressive position, the People made no atempt to show that Mr. Basile knowingly created the risk to the animal. The People’s expert witness con- ceded that an owner would not necessarily know that the dog was severely under- 4 nourished. Thus, had the jury been properly charged, there is a reasonable possi- bility that it would have acquited Mr. Basile. Second, the trial court commited reversible eror by refusing to per- mit the jury to consider whether circumstances surounding Mr. Basile’s alegedly culpable conduct—including his inability at times to feed himself more than once a day—could support a defense to the charge of “unjustifiably injur[ing]” his dog. Most New York courts have held that the phrase “unjustifiably” in § 353 comports with the common understanding of that word—i.e., conduct that is not “reasona- ble” or otherwise “defensible, right, unavoidable or excusable.” The trial charged the jury with a much less favorable definition of that term, and required that the ju- ry find Mr. Basile’s conduct “unjustified” unless it was “authorized by law where is necessary as an emergency measure to avoid an imminent public or private inju- ry that is about to occur.” This charge prevented the jury from considering evi- dence of Mr. Basile’s financial situation and his good-faith eforts to care for his pet. Had the jury been properly charged, there is a reasonable possibility that it would have acquited. For these reasons, Mr. Basile’s conviction should be overturned. 5 STATEMENT OF FACTS Curtis Basile and His Dog Nineteen-year-old Curtis Basile owned a dog he named Danger. (Ex. 3, 175:16-23). Basile had given Danger to his then-girlfriend for her birthday, but when the couple broke up in Spring 2007, Basile took ownership of Danger. (Ex. 3, 175:18-19, 176:5-19). Basile enjoyed being a pet owner, and he loved Danger— a long-haired shepherd mix—“like he was [his] son.” (Ex. 3, 111:22-23, 176:3-4). By Fal 2007, Basile was struggling. (Ex. 3, 177:3-6). He had been in an accident and was out of work. (Ex. 3, 177:3-19). As a result, he was in “finan- cial dires” and “wasn’t eating as frequently.” (Ex. 3, 119:2-6, 184:24-185:3). At times, he ate only once a day. (Ex. 3, 186:12-16). Unable to aford dog food, Basile fed Danger human food, the food Basile himself ate—that is, when Basile had food to eat. (Ex. 3, 178:7-12; 183:23- 184:3). “Every time [Basile] ate . . . [he] made sure [Danger] ate”—boiled chicken cutlets, Chinese food, chicken wings, fried rice, meatloaf, steak—“whatever lefto- vers or whatever scraps he [could] provide for him,” he gave to Danger. (Ex. 3, 112:16-113:13; 183:23-184:23; 185:11-15). “If [Basile] had it, [he] fed it” to Dan- ger. (Ex. 3, 186:10-11). Unfortunately, it wasn’t enough: Danger lost a lot of weight. (Ex. 3, 112:16-113:13). Basile thought Danger had worms and tried to get medical aten- 6 tion for him. (Ex. 3, 112:16-113:13; 178:7-179:1). However, when Basile took him to a vet, it was too expensive. (Ex. 3, 178:7-179:1). Basile had no idea it would be that expensive. (Id.). Someone told him about a mobile van that provid- ed free veterinary care, but it wasn’t free. (Id.). Basile simply “didn’t have money to take care of [him]self and the dog as wel.” (Ex. 3, 184:24-185:3). Unable to buy dog food or pay for medical care, he “started looking around to get a beter place for [Danger].” (Ex. 3, 177:3- 6; 179:2-19). He tried to get his cousin to take him, but his aunt “didn’t want the dog anywhere near her house.” (Ex. 3, 179:2-5). He tried to get in touch with his ex-girlfriend but had no luck. (Ex. 3, 179:16-19). Basile refused to cal animal control because a friend told him they would put Danger to sleep; Basile “was looking for a no-kil shelter.” (Ex. 3, 181:21-182:17). He caled a shelter in Queens, but it wasn’t accepting dogs at the time. (Ex. 3, 179:2-11). He caled a shelter in Manhatan, but it would not provide transportation and Basile had none of his own. (Id.). The people he knew that owned cars wouldn’t let Danger in the car, and he was uncomfortable taking Danger on the train unmuzzled. (Ex. 3, 183:6-18). Basile did not know what else to do. (Ex. 3, 179:16-19). 7 Special Agent Omar Negrilo On October 8, 2007, Special Agent Omar Negrilo of the American Society for the Prevention of Cruelty to Animals (“ASPCA”) came to Basile’s home after receiving an anonymous complaint. (Ex. 3, 110:15-16; 111:24-112:12; 180:3-14). Basile met Negrilo in the backyard where Danger was tied to a leash. (Ex. 3, 110:21-111:3; 180:3-14). Negrilo observed that Danger looked “prety skinny” and that around him were flies and empty food containers. (Ex. 3, 110:21- 25; 111:8-13; 113:18-24; 115:14-17). Danger did not bark or behave aggressively. (Ex. 3, 116:4-13). According to Negrilo, it “just wasn’t the best conditions.” (Ex. 3, 113:18-24). Negrilo asked Basile about Danger. (Ex. 3, 112:16-25). As Negrilo later recaled: I asked him if it was his dog, he said, yeah. I said why was it so thin, so he was teling me that he was trying to feed the dog, giving him scraps here and there. Whatever he could feed him he would feed the dog, whatever leftovers he had, he tried to provide food for the dog, but apparently it was[n’t] enough. (Ex. 4, 5:19-6:1). Basile told Negrilo that he wanted to keep Danger “but he didn’t have a job so he realy didn’t have the money to provide for the dog.” (Ex. 3, 112:16-113:13). Negrilo described to Basile the ways that the ASPCA could “provide care for the canine” (Ex. 3, 119:9-14) and how Negrilo could “help [Danger] get a 8 nice family to live beter.” (Ex. 3, 180:23-181:4).1 He explained that Basile “could sign the dog over, due to his financial troubles.” (Ex. 3, 116:17-21). Basile was “hesitant” and thought carefuly about Negrilo’s proposal. (Ex. 3, 116:17- 117:2, 180:23-181:4). He loved Danger and wanted to keep him. (Ex. 3, 181:5-6). Ultimately, though, he agreed to surrender Danger to the ASPCA. (Ex. 3, 122:4-7; 181:13-17). Negrilo walked Danger to the ASPCA vehicle and put him in the back seat. (Ex. 3, 117:14-118:2). When Negrilo drove away, he had no intention of returning to arest Basile. (Ex. 3, 121:24-122:3). Dr. Robert Reisman Negrilo drove Danger to the ASPCA-afiliated Bergh Memorial An- imal Hospital (“Bergh”), a twenty-five minute drive from Basile’s home. (Ex. 3, 117:23-118:10).2 There, Danger was examined and treated by ASPCA veterinarian Dr. Robert Reisman and his team. (Ex. 3, 127:5-15; 128:25-129:15). Reisman de- termined that Danger was under-exercised, dirty, and had fleas and fly bites on his ears. (Ex. 3, 129:16-22; 149:18-150:2). And based on a series of “subjective de- 1 Negrilo later explained that the role of the ASPCA is to “[b]asicaly maintain and educate the public about how to take care of animals. And let them know how to take care of them, what to do, what it is to take care of them . . . [and] help out people who do not have much income, with the animals to help them out with medical, food or whatever it may be.” (Ex. 3, 109:1-9). 2 At some point after Basile surrendered Danger to Negrilo, Danger’s name was changed to “Levy.” For purposes of consistency and clarity, we wil refer to the dog as Danger, the name Basile gave him. 9 terminations” made by Reisman and his team, Reisman concluded that Danger’s “most significant” problem was “that he had an emaciated body condition where there’s been extreme weight loss.” (Ex. 3, 129:16-22; 137:2-9). In some dogs such a condition is “more visibly prominent,” but in a “longer haired dog” like Danger, “you need to feel to adequately score their body condition”—“you have to put your hands on him.” (Ex. 3, 137:2-25; 151:23-152:5). Reisman noted in his initial examination that Danger was “friendly,” non-aggressive, non-apprehensive, of “reasonable strength,” “able to stand on his own and move around,” and that he “was easy to work with.” (Ex. 3, 153:5- 154:15; 167:20-24). Another Bergh staf member commented that Danger was “a very friendly dog.” (Ex. 3, 153:24-154:3). Danger was treated for fleas, his ears were cleaned, and he was bathed and fed. (Ex. 3, 147:17-20). In three weeks, Danger’s weight had “plateau[ed] out” and he was deemed a “normal healthy dog.” (Ex. 3, 148:24-149:10; 152:16- 153:4). Danger was transfered from Bergh to a shelter. (Ex. 3, 161:1-9). Basile’s Arrest and Trial Two months after Basile voluntarily surrendered his pet, Negrilo ar- rested Basile. (Ex. 3, 117:3-13). Basile was charged with one count of violating New York Agriculture and Markets Law § 353, a Class A misdemeanor punishable by up to one year in jail. Section 353 states: 10 A person who overdrives, overloads, tortures or cruely beats or unjus- tifiably injures, maims, mutilates or kils any animal, whether wild or tame, and whether belonging to himself or to another, or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruely beaten, or unjustifiably injured, maimed, mutilated or kiled, or to be deprived of necessary food or drink, or who wilfuly sets on foot, instigates, en- gages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a class A misde- meanor and for purposes of paragraph (b) of subdivision one of sec- tion 160.10 of the criminal procedure law, shal be treated as a mis- demeanor defined in the penal law. A.M.L. § 353. At trial, Negrilo and Reisman testified for the People. (Ex. 3, 108:6- 7; 123:9-10). Basile testified in his own defense. (Ex. 3, 174:20-21). At the close of the People’s case and prior to Basile’s testimony, counsel for the People moved to preclude defense counsel from eliciting testimony that Basile had been in an accident, was unemployed during the relevant time and did not have any money. (Ex. 3, 170:4-11). The People argued that such evidence would be “irrelevant and inappropriate” because § 353 “is not an intent crime” and “has nothing to do with the financial status that the defendant was in and why he was unable to provide for this animal.” (Ex. 3, 170:4-23). Defendant argued that § 353 “is not a strict liability” statute and that “[t]he charge itself mentions unjustifiable.” (Ex. 3, 172:11-16). Defendant “re- serve[d] his right to testify as to why he was not in the financial position that the 11 People ha[d] mentioned” in their opening statement, “reserv[ed] [his] motion . . . as to any element of intent in the charge,” and reserved the right to move to dismiss at the end of his case. (Ex. 3, 169:14-18; 172:3-10; 174:4-7). The trial court stated: I am not ruling [that] because a person could not aford to feed an an- imal that justifies any actions taken with respect to the animal. How- ever, in this case, under the circumstances I wil permit the defendant to testify just that he was in an accident. And, again, my understand- ing is that . . . you intend to put on the defense that the defendant basi- caly could not aford to feed the animal because he was out of work . . . While I agree with the People that that is not a defense to the charge I would not charge the jury as such. . . . In giving the elements of the crime to the jury I wil indicate that in- tent is an element of the crime [sic], because it is not in the law itself. . . . I wil, again, permit your client to testify as to his perceived reason for alegedly not feeding the dog properly, within limitations, counsel. (Ex. 3, 171:3-15; 173:14-23). The trial court agreed to “revisit the decision with respect to the count” at the charge conference. (Ex. 3, 174:11-12). At the close of Defendant’s case, defense counsel moved to dismiss the count, arguing that the People have not established beyond a reasonable doubt that my client, Mr. Basile, wilfuly or intentionaly neglected or refused to provide the animal in question with food or drink, wrongfuly, inten- tionaly, unlawfuly deprived the animal of necessary food and drink. And, furthermore, the People have failed to establish that my client was cognizant of the aleged emaciated state that Dr. Reisman testi- fied to. Although there is testimony that indicates that the People have presented evidence to indicate the state of the dog in question; 12 however, they have failed to tie the state that the dog is in to any wil- ful intentional acts of my client. And, furthermore, in reading from the specific language of the statute requiring that someone unjustifiably injured, tortured the animal; that was not established. . . . [T]his is not a strict liability statute. The People cannot just set forth that the dog was in an emaciated state. And that cannot sufice with- out being tied to my client’s actions. . . . Our position is not that the dog in question—this specific case—was a hundred percent healthy. That’s not our position at al. Just that the dog in question, the state he was in, that the People have failed to es- tablish that my client’s intentional act had put him in that state. (Ex. 3, 189:11-190:22; 192:11-16). The People repeated the argument that “there is no intent whatsoever” in the statutory text. (Ex. 3, 190:25-191:10). The trial court denied Defendant’s motion, stating that it was “not convinced that there is a mens rea needed or at- tributed to this statute. . . . [E]ven if there were to be an intent or wilingness there’s some other actions needed by the defendant, based on the evidence in this case. That’s a question for the jury to decide. It’s a question of fact that is best left for the jury.” (Ex. 3, 195:6-17). The court agreed to “have a brief charge confer- ence” on the issue. (Id.). The Charge Conference and Jury Charge At the charge conference, defense counsel stated: The terms that I seek to have added to the charge to the Jury are al terms that are actualy found in the language of the statute itself. For 13 instance, neglects, refuses, deprives, wilfuly, unjustifiably. These are al terms in the language of the statute itself. And, for the ladies and gentlemen of the Jury to be able to adequately look at al the evi- dence that the People have presented and to be able to come to a con- clusion not based on speculation as to those terms, I think that it’s prety clear that my client’s due process right require that these terms be charged and defined by the court to the ladies and gentlemen of the jury for it to be a fair trial. (Ex. 3, 197:8-21). During the charge conference, the trial court stated, with respect to Defendant’s request that the court instruct the jury that it must find a culpable men- tal state: Now, with respect to the defendant’s request, there are a lot of re- search cases that hold various ways. What we have come up with that most closely, or may represent what the law is in this mater is the case of People v. Arcidicono, 79 Misc. 2d 242 [360 N.Y.S. 2d. 156 (App. Term 1974)] . . . [T]he Appelate Term specificaly stated that, although we were agreeing with the trial court’s finding that the evi- dence was ample to establish a culpable state of mind on the part of the defendant, we do not, under present circumstances, think it neces- sary to pass upon the issue of whether the [] ofense is one of strict li- ability or mental c[ul]pability. I know this goes back, and this is in 1974, the Appelate Term at that time did not hold that in fact there is a culpable mental state necessary for the People to prove this mater. What the Appelate Term did is refer to Section 43 of the Agriculture and Markets Law which is enti- tled “evidence.” It indicates “The doing of anything prohibited by this chapter shal be evidence of the violation of the provisions of this chapter relating to things so prohibited, and the omission to do any- thing directed to be done shal be evidence of a violation of the provi- sions of the chapter relative to the thing so directed to be done. The intent of any person doing or omiting to do any such act is immaterial in any prosecution for a violation of the provisions of this chapter.[”] 14 It would appear, by the legislature having this provision in the rules of evidence for proof under the Agriculture and Markets Law indicates that they intended that, as far as this court is concerned with the facts of this case, that they intended that Section 353 of the Agriculture and Markets Law be a strict liability statute and that no intent or any mens rea need be proved by the People. It need not be proved by the Peo- ple. Then, certainly the court would not be required to instruct the ju- ry that they have to find some type of mens rea, that is not necessary for the People to prove. (Ex. 3, 199:4-200:23). The trial court instructed the jury that the People were required to prove: [t]hat on or about October 8, 2007 in the County of Queens, the de- fendant Curtis Basile, tortured, or unjustifiably injured any animal, whether belonging to himself or to another, or deprived any animal of necessary sustenance food or drink, or caused, or permited any ani- mal to be tortured, or unjustifiably injured, or to be deprived of neces- sary food or drink, or instigated, engaged in, or in any way further any act of cruelty to any animal. (Ex. 3, 238:5-12). As part of the charge, the trial court also stated that “[a] person is unjustified in causing or permiting injury to an animal, unless such conduct is authorized by law where is necessary as an emergency measure to avoid an immi- nent public or private injury that is about to occur.” (Ex. 3, 237:22-25). During its deliberations, the jury asked to hear the charge again, and the trial court provided it. (Ex. 3, 256:19-24; 257:1-258:23). 15 Verdict and Sentencing The jury found Basile guilty. (Ex. 3, 259:19). On December 1, 2009, he was sentenced to three years of probation and forty-five days of community ser- vice. (Ex. 5, 6:25-7:13). Appeal to the Intermediate Court Basile appealed from the judgment of conviction to the Supreme Court, Appelate Term for the Second, Eleventh and Thirteenth Judicial Districts. The defense asserted that the trial court erred in instructing the jury that § 353 was a strict liability ofense, and that the trial court had given an unduly narow defini- tion of “justifiable” conduct. The defense also asserted that the trial court’s charge alowed the jury to convict either because it concluded that Basile had unjustifiably deprived the dog of necessary sustenance, or that he unjustifiably injured it. The Appelate Term afirmed the judgment of conviction. On the first issue, it held: A review of this section [A.M.L § 353], insofar as it relates to the charge of failing to provide proper sustenance to an animal, reveals that for a person to be guilty of a violation thereof, there is no re- quirement that a person have a culpable mental state. Moreover, sec- tion 43 of the Agriculture and Markets Law provides, in pertinent part, that “[t]he intent of any person doing or omiting to do any . . . act is immaterial in any prosecution for a violation of the provisions of this chapter.” On the second issue, the Appelate Term stated: 16 We note that, contrary to defendant’s contention that the People must establish that he acted “unjustifiably,” we do not read the word “un- justifiably” in section 353 to relate to the words “deprives any animal of necessary sustenance, food or drink, or neglects or refuses to fur- nish it such sustenance or drink.” People v. Basile, 40 Misc. 3d 44, 46 (App. Term 2d Dep’t 2013). The court did not address Defendant’s argument that the eroneous definition of “unjustifiable” was prejudicial because the jury could have convicted based on a finding that Ba- sile “unjustifiably injured” the animal. Leave to Appeal to This Court On February 25, 2014, the Honorable Chief Judge Jonathan Lippman granted leave to appeal upon reconsideration of a prior order denying such leave. ARGUMENT I. THE TRIAL COURT ERRED BY REFUSING TO INSTRUCT THE JURY THAT § 353 REQUIRES PROOF OF MENS REA The trial court held, and the intermediate court afirmed, that New York’s animal cruelty statute imposes strict liability. Section 353 states: A person who overdrives, overloads, tortures or cruely beats or unjus- tifiably injures, maims, mutilates or kils any animal, whether wild or tame, and whether belonging to himself or to another, or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruely beaten, or unjustifiably injured, maimed, mutilated or kiled, or to be deprived of necessary food or drink, or who wilfuly sets on foot, instigates, en- gages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a class A misde- 17 meanor and for purposes of paragraph (b) of subdivision one of sec- tion 160.10 of the criminal procedure law, shal be treated as a mis- demeanor defined in the penal law. A.M.L. § 353. Section 353 is not a model of clarity, as lower courts tasked with in- terpreting it have lamented.3 The trial court expressed uncertainty on how to in- struct the jury on the element of mens rea, and conceded that its interpretation “may represent what the law is.” (Ex. 3, 199:4-16). The trial court’s uncertainty was waranted. It is precisely due to § 353’s lack of clarity that it must be interpreted to require proof of mens rea. We submit that, properly construed, the statute requires proof that a defendant acted knowingly with respect to the proscribed conduct. As the jury was not permited to consider Mr. Basile’s mental state at al, reversal is required. See Morissete v. United States, 342 U.S. 246, 249 (1952) (reversing conviction where trial court 3 See, e.g., People v. Arroyo, 3 Misc. 3d 668, 673 n.1 (N.Y.C. Crim. Ct. Kings Co. 2004) (“[T]he language of the statute is not an example of precision and clarity.”); People v. Bunt, 118 Misc. 2d 904, 908 (Rhinebeck Just. Ct. Dutchess Cnty. 1983) (“This statute certainly leaves much to be desired from a draftsman’s point of view and the legislature would be wel advised to review it in order to give it a great- er sense of clarity.”). As commentators have noted, with regard to animal cruelty statutes like § 353: Although society’s atitudes towards animals have been evolving, only occasionaly have statutes been redrafted. The result is that most of the statutes are old and ful of archaic phrases. The statutes often appear to overlap, and many terms used are re- dundant or undefined. The judiciary has approached these statutes with difering ati- tudes and presumptions, thus providing unhelpful or contradictory interpretations. David S. Favre & Muray Loring, Animal Law, § 9.1, at 121 (1983). 18 improperly “refused to submit or to alow counsel to argue to the jury” that de- fendant did not possess requisite mens rea). A. Section 353 must be interpreted in a manner consistent with New York’s strong presumption against strict liability The New York Legislature has codified the bedrock presumption of our criminal law that a “statute defining a crime, unless clearly indicating a legisla- tive intent to impose strict liability, should be construed as defining a crime of mental culpability.” Penal Law § 15.15(2). This is consistent with the long line of cases from the United States Supreme Court endorsing the same principle. See Staples v. United States, 511 U.S. 600, 605 (1994); Liparota v. United States, 471 U.S. 419, 426 (1985); United States v. U.S. Gypsum Co., 438 U.S. 422, 437-38 (1978); Morissete, 342 U.S. at 250. Importantly, § 15.15(2) “applies to ofenses defined both in and outside” the Penal Law. This Court has repeatedly applied § 15.15 to reject improper intrusion of strict liability into a variety of criminal statutes. See People v. Ryan, 82 N.Y.2d 497, 502 (1993) (where New York’s drug laws required a knowledge mens rea with respect to possession of a controled substance, that mens rea applied to the weight element, although the statute was silent on that point); People v. Wiliams, 81 N.Y.2d 303, 316 (1993) (deeming intent to be an element of forcible rape de- spite statutory silence); People v. Coe, 71 N.Y.2d 852, 855 (1988) (reading “wil- 19 fuly” in public health statute prohibiting abuse of the elderly to require that de- fendant knew the act was ilegal, not just that she acted deliberately and voluntari- ly); People v. Chesler, 50 N.Y.2d 203, 209 (1980) (presumption in § 15.15 applies to § 79-a of the Lien Law proscribing misappropriation of funds). A recent schol- arly study of the impact of the Model Penal Code’s culpability rules has concluded that New York has a “strong record of infering culpability requirements” into criminal statutes. See Daryl K. Brown, Criminal Law Reform and the Persistence of Strict Liability, 62 Duke L.J. 285, 320-21 (2012) (comparing the twenty-four states that codified the Model Penal Code’s culpability rules). Accordingly, the Court’s analysis must start with the premise that reversal is required unless the New York Legislature “clearly” intended that § 353 impose strict liability. We note that § 353 is a decidedly pre-modern statute. Its text has hardly changed since its passage in 1867. It is therefore unsurprising that the stat- ute does not employ the mens rea terminology (“intentionaly,” “knowingly,” etc.) present in modern statutes. See N.Y. Penal Law § 15.05. Even on its own terms, however, the terminology of the statute—addressed to those who act “cruely” or “unjustifiably,” or who “neglect,” “refuse,” “deprive,” or “torture”—is strongly suggestive on its face of a legislative intent to require proof of a mens rea. In any event, the law is clear that a legislature’s failure to express mens rea terminology in a statute does litle, if anything, to rebut the presumption 20 that a culpable mental state must be proved. See U.S. Gypsum Co., 438 U.S. at 438 (“Certainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.”); see also Liparota, 471 U.S. at 426 (“the failure of [a legislature] explicitly and un- ambiguously to indicate whether mens rea is required does not signal a departure from th[e] background assumption of our criminal law” that strict liability is “dis- favored”) (citation and internal quotation marks omited). Thus, the People’s ar- gument at trial that “there is no intent whatsoever” in the statutory text merely begs the question. (Ex. 3, 190:25-191:10). And the trial court’s similar observation that such terminology was “not in the law itself” (Ex. 3, 173:14-18) represents the start, not the end, of the analysis of whether the Legislature “clearly” intended to rebut the strong presumption against strict liability. B. Considering § 353 in light of other laws demonstrates that it is far from “clear” that the New York Legislature intended § 353 to impose strict liability Considering § 353 in the context of other New York laws refutes any notion that the Legislature “clearly” intended § 353 to impose strict liability. First, construing § 353 as imposing strict liability would place that provision at odds with its neighboring provisions that also prohibit certain acts of cruelty to animals. The four provisions in the A.M.L. that folow § 353 state as folows: 21 A person is guilty of aggravated cruelty to animals when, with no justifiable purpose, he or she intentionaly kils or intentionaly causes serious physical injury to a companion animal with aggravated cruelty. For purposes of this section, “aggravated cruelty” shal mean conduct which: (i) is intended to cause extreme physical pain; or (i) is done or caried out in an especialy depraved or sadistic manner . . . . Aggravated cruelty to animals is a felony. Section 353-a(1), (3) (emphasis added). Any person who owns or has custody or control of a dog that is left outdoors shal provide it with shelter appropriate to its breed, physical condition and the climate. Any person who knowingly violates the provisions of this sec- tion shal be guilty of a violation, punishable by a fine of not less than fifty dolars nor more than one hundred dolars for a first ofense, and a fine of not less than one hundred dolars nor more than two hundred fifty dolars for a second and subsequent ofenses. Section 353-b(2)(a) (emphasis added). [N]o person shal intentionaly kil, or stun to facilitate the kiling of, a fur- bearing animal by means of an electrical curent . . . . A violation of . . . this section is a class A misdemeanor. Section 353-c(1), (2) (emphasis added). A person shal not confine a companion animal in a motor vehicle in ex- treme heat or cold without proper ventilation or other protection from such extreme temperatures where such confinement places the companion animal in imminent danger of death or serious physical injury due to exposure to such extreme heat or cold . . . . Any person who knowingly violates the pro- visions of subdivision one of this section shal be guilty of a violation, pun- ishable by a fine of not less than fifty dolars nor more than one hundred dol- lars for a first ofense, and a fine of not less than one hundred dolars nor more than two hundred and fifty dolars for a second and subsequent ofens- es. Section 353-d(1), (5) (emphasis added). Each of these modern statutes—passed from 1999 to 2008—expressly and clearly reflects the Legislature’s intent only to prohibit conduct commited with the identi- fied mens rea (including conduct very similar to that for which Mr. Basile was prosecuted). In light of that clear intent, we find it doubtful that the Legislature clearly intended the contrary with respect to § 353. 22 Second, interpreting § 353 as a strict liability statute would set the le- gal bar for conviction of aleged child abusers higher than the bar for the convic- tion of aleged animal abusers. Under New York law “[a] person is guilty of en- dangering the welfare of a child [a Class A misdemeanor] when . . . [h]e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child[.]” Penal Law § 260.10(1) (emphasis added).4 In this case, the Appelate Term held that New York law permits conviction of a defendant who acted in a like manner towards an animal, but without regard to the defendant’s mental state. Hypotheticaly, therefore, a defendant who with criminal negligence left his child and his pet dog in a locked car on a hot summer day, endangering them both, could be convicted for his actions towards his dog under § 353 but ac- quited for his actions towards his child under Penal Law § 260.10(1). An animal welfare regime that elevates the protections aforded to animals above those af- forded to children cannot stand.5 4 See also People v. Simmons, 92 N.Y.2d 829, 830 (1998) (Section 260.10(1) requires proof that a “defendant act . . . knowing of the likelihood of such harm coming to the child.”). 5 See People v. Guiseppe, Slip Op. 2013QN070052 (N.Y.C. Crim. Ct. Queens Cnty. Apr. 7, 2014) (“Promulgation of the AML statute depicts a clear legislative intent and societal value to criminalize the neglect and abuse of animals under our care, as we would a child[.]”); People v. Carr, 183 Misc. 2d 94, 96 (Orchard Park Just. Ct. Erie Cnty. 1999) (granting motion to dismiss where complaint brought under § 353 failed to alege animal sustained any physical injury as “[t]he Legislature’s intent could not have been to hold a person to a higher standard of conduct with respect to an animal than toward a felow hu- man being”); Dauphine v. United States, 73 A.3d 1029, 1032 (D.C. 2013) (“[C]hildren are obviously de- serving of more protection than animals.”); People v. Alen, 657 P.2d 447, 450 (Colo. 1983) (“The princi- ples developed in the child abuse and neglect cases are appropriately applied to the analysis of the statute forbidding cruelty to or neglect of animals.”); Bischof v. Ilinois S. Ry. Co., 83 N.E. 948, 949 (Il. 1908) (“[I]t would be assumed that it was not the intention to give protection against injury to animals and deny 23 Third, § 353 is simply diferent in kind from the regulatory “public welfare” laws that courts have found warant strict liability. With few exceptions, only those ofenses deemed to be against the “public welfare” have been recog- nized as strict liability ofenses. Liparota, 471 U.S. at 432–33; People v. Munoz, 9 N.Y.2d 51, 58 (1961) (“Crimes may be created without intent as a factor other than an intent to commit the prohibited act but there must be some reasonable relation- ship between the public safety, health, morals or welfare and the act prohibited.”). Courts considering whether a statute is a “public welfare” statute ask whether the legislature “has rendered criminal a type of conduct that [1] a reasona- ble person should know is subject to stringent public regulation and [2] may seri- ously threaten the community’s health or safety.” Liparota, 471 U.S. at 433; see also Staples, 511 U.S. at 607 (“Typicaly, our cases recognizing such ofenses in- volve statutes that regulate potentialy harmful or injurious items.”). The Supreme Court has reasoned that where defendant’s dealings “place[] him in responsible re- lation to a public danger,” those dealings alone should alert him to “the probability it to infant children.”); People v. Brian, 168 Cal. Rptr. 105, 107 (App. Dep’t Super. Ct. 1980) (stating, in connection with consideration of appropriate mens rea standard for California animal cruelty statute, “[w]e think the analogy to child endangering decisions is apt”). Recent scholarly commentary asserts that domesticated animals, having obtained to some a status in our society commensurate with that of children, should be legaly treated on par with children. David Grimm, Citizen Canine: Our Evolving Relationship with Cats and Dogs, 280-82 (2014). We take no po- sition as to the merits of that assertion, nor do we take a position as to the present state of the law that human beings and animals are not coequals. See 4 Am. Jur. 2d Animals § 4 (2011) (“While a dog may be considered by many to be a member of the family, under the law they are considered to be personal prop- erty.”). We note only that even the staunchest defenders of animal rights do not argue that animals should be aforded more legal protection than children, as the Appelate Term’s ruling would have it. 24 of strict regulation” and courts should “place the burden on the defendant to ascer- tain . . . whether his conduct comes within the inhibition of the statute.” Staples, 511 U.S. at 607 (citations, internal brackets and quotation marks omited). Section 353, which imposes restrictions on individuals’ treatment of their animals, is not a “public welfare” statute. The conduct it proscribes—here, the treatment of a domesticated pet—bears no similarity to the type of conduct courts deem to be stringently regulated and threatening to public health and safety such that the imposition of strict liability is permissible. For example, a defendant accused of violating a statute regulating the distribution of adulterated and mis- branded drugs was held to a strict liability standard. United States v. Doterweich, 320 U.S. 277 (1943). So were defendants accused of engaging in activities involv- ing other highly regulated and highly dangerous products or devices. See, e.g., United States v. Freed, 401 U.S. 601 (1971) (possession of unregistered hand gre- nades); United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558 (1971) (shipment of sulfuric and hydrofluosilicic acid); United States v. Balint, 258 U.S. 250 (1922) (distribution of addictive drugs); People v. Byrne, 77 N.Y.2d 460 (1991) (sale of alcohol to minors); People v. Leonard, 8 N.Y.2d 60 (1960) (same). Indeed, it is significant that courts have refused to impose a strict lia- bility standard on conduct far more heavily regulated and far more threatening to the public welfare than the conduct at issue here, particularly when the imposition 25 of strict liability would “‘criminalize a broad range of apparently innocent con- duct.’” Staples, 511 U.S. at 610 (quoting Liparota, 471 U.S. at 426). In Staples, the court refused to read strict liability into a statute prohibiting ownership of an unregistered machine gun given, among other things, the “long tradition of wide- spread lawful gun ownership by private individuals.” Id.; see also Liparota, 471 U.S. at 433 (“A food stamp can hardly be compared to a hand grenade, . . . nor can the unauthorized acquisition or possession of food stamps be compared to the sel- ing of adulterated drugs. . . .” (citation omited)). Pet ownership in the United States is at least as widespread and innocent as gun ownership. Domesticated pets are not subject to stringent regulation and their mistreatment—while certainly rep- rehensible if done with a culpable mental state—does not seriously threaten the community’s health or safety on a wide-spread basis in the same way as the acts described in the examples above do. C. The lower courts’ reliance on A.M.L. § 43 was misplaced The arguments above are quite suficient to dispel any notion that the Legislature “clearly” intended § 353 to be a strict liability ofense. It is nonetheless worth addressing why A.M.L. § 43, relied on by the courts below, does not require a diferent result. Section 43 states that: The doing of anything prohibited by this chapter shal be evidence of the violation of the provisions of this chapter relating to the thing so prohibited, and the omission to do anything directed to be done shal 26 be evidence of a violation of the provisions of the chapter relative to the thing so directed to be done. The intent of any person doing or omiting to do any such act is immaterial in any prosecution for a violation of the provisions of this chapter. A.M.L. § 43. The trial court reasoned that “by the legislature having this provision . . . [it] intended that Section 353 of the Agriculture and Markets Law be a strict liability statute and that no intent or any mens rea need be proved by the People.” (Ex. 3, 200:13-20).6 To understand why the trial court was incorect, it is instructive to consider § 43 in the context of its statutory evolution, as contrasted with that of § 353. That consideration reveals not only that reliance on § 43 is misplaced, but that the Legislature much more likely intended that § 353 be read to require proof of mens rea. 6 At least one lower court would have reached precisely the opposite conclusion. See People v. O’Rourke, 83 Misc. 2d 175, 179 (N.Y.C. Crim. Ct. N.Y. Cnty. 1975) (stating, albeit in dicta, that “[i]n order to convict a defendant under section 353 of the Agriculture and Markets Law, the defendant must have a culpable state of mind.”). Further, the ASPCA itself has expressed a view contrary to the trial court’s: An important aspect of the misdemeanor cruelty provision relates to the mental state of the perpetrator. Section 353 does not expressly require proof of a particu- lar mental state. That is, the statute does not require that a defendant intentionaly recklessly or negligently commited any of the proscribed acts. However, where criminal sanctions are imposed, there is a presumption against laws that impose strict liability that is, liability without proof of a guilty state of mind. Unless there is an express legislative intent to impose strict liability, the provision wil be con- strued to have a mental culpability requirement. . . . As with al elements of a criminal ofense, the prosecution bears the burden of establishing the mental state or mens rea beyond a reasonable doubt. The American Society for the Prevention of Cruelty to Animals, Animal Cruelty: The Law in New York, at 18 (August 2003) (citations omited). 27 1. The history of A.M.L. § 43 Many prohibitions in the A.M.L. have their origins in the era of America’s industrial revolution, during which [c]ongestion of cities and crowding of quarters caled for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that afect public health, safety or welfare. Morissete, 342 U.S. at 254. Many of the provisions in the A.M.L. are a product of this phenomenon. The A.M.L.’s opening policy declaration acknowledges that “[t]he agricultural industry is basic to the life of our state. It vitaly concerns and afects the welfare, health, economic wel-being . . . of al our people. It is the policy and duty of the state to . . . protect the public health . . . .” A.M.L. § 3. Many provisions of the A.M.L. are therefore public welfare statutes of the sort for which strict liability is entirely warranted—their purpose is to regulate the risk posed to the public health by potentialy-hazardous and widely-distributed animal and agricultural products. See, e.g., A.M.L. § 81 (regulating the slaughter and sale of animals with tuberculosis); A.M.L. § 174 (prohibiting the keeping of diseased bees). 28 In light of the newly-recognized concerns for the public welfare, regulations addressing the mass manufacture and distribution of animal products were labeled by courts as strict liability ofenses. And sensibly so. For example, in 1887, this Court afirmed a defendant’s conviction for the sale of adulterated milk, stating that: [i]t is notorious that the adulteration of food products has grown to proportions so enormous as to menace the health and safety of the people. Ingenuity keeps pace with greed, and the careless and heedless consumers are exposed to increasing perils. To redress such evils is a plain duty but a dificult task. Experience has taught the lesson that repressive measures which depend for their eficiency upon proof of the dealer’s knowledge and of his intent to deceive and defraud are of litle use and rarely accomplish their purpose. Such an emergency may justify legislation which throws upon the seler the entire responsibility of the purity and soundness of what he sels and compels him to know and to be certain. People v. Kibler, 106 N.Y. 321, 324 (1887); see also People v. West, 106 N.Y. 293, 296 (1887) (“[S]upplying or bringing to any buter or cheese manufactory milk diluted with water, to be manufactured into buter or cheese, does not make a fraudulent intent a necessary ingredient of the crime. It puts upon the person bringing or supplying milk . . . the risk of ascertaining that the milk is pure.”). Kibler, West, and similar cases demonstrate why, in 1909, the New York Legislature passed the legislation in which § 43 finds its origins: to impose strict liability on those who dealt in products posing threats to “the health and safety of the people.” Kibler, 106 N.Y. at 324. 29 2. The history of A.M.L. § 353 Consider, by contrast, the statutory development of § 353. The statute to which § 353 traces its origins dates to 1867 when the New York Legislature passed “An Act for the more efectual prevention of cruelty to animals.” See L. 1867, c. 375, § 1. That law was added not to the A.M.L., however, but to New York’s Penal Code, making § 353 a criminal law by origin. See Hammer v. Am. Kennel Club, 304 A.D.2d 74, 79 (1st Dep’t 2003) (“[N]otwithstanding its inclusion in the Agriculture and Markets Law rather than the Penal Law, it is a criminal statute. Indeed, the legislative history of Article 26 reflects that its antecedents were included in the former Penal Code and Penal Law.”) (emphasis in original).7 7 The 1867 law reflected the efforts of Henry Bergh, the famous founder of the ASPCA (and name- sake of the hospital to which Danger was taken). At Bergh’s urging, the ASPCA was granted a state-wide charter on April 10, 1866. See David Favre & Vivien Tsang, The Development of Anti-Cruelty Laws During the 1800’s, 1993 Det. Col. L. Rev. 1, 13 (1993). Recognizing the shortcomings of existing New York law, Bergh, who was socialy and politicaly connected in New York, sought strengthening amend- ments. The first such amendment came that same year, in 1866, when the Legislature amended the lan- guage of New York’s existing animal cruelty law (passed in 1829) to read: “‘Every person who shal, by his act or neglect, maliciously kil, maim, wound, injure, torture, or cruely beat any horse, mule, ox, cat- tle, sheep, or other animal, belonging to himself or another, shal, upon conviction, be adjudged guilty of a misdemeanor.’” Id. at 14 (quoting N.Y. Penal Law § 26). As soon as the ASPCA charter and the 1866 law was passed: Henry Bergh went to work and was immediately active in enforcing the law. However, he clearly wanted more because within months, drafts for a new law were created. By the first anniversary of the A.S.P.C.A., a new, restructured, and greatly expanded law was passed by the New York Legislature . . . . The list of ilegal acts was greatly expanded to include: over- driving and overloading; torturing and tormenting; depriving of necessary sustenance; unnec- essarily or cruely beating; and needlessly mutilating or kiling. Id. at 15-16. The 1867 law also vested ASPCA agents with the authority to arrest aleged violators. As has been observed: “This delegation of state criminal authority to a private organization was, and is, truly extraordinary. This, more than any other aspect of the 1867 Act, reflected the political power and trust that Bergh must have had within the city of New York and in the state capital.” Id. at 17. 30 Section 353 remained in the Penal Code from that early date until 1965. In that year, folowing the issuance of the Model Penal Code, the Legislature undertook a “major” initiative to “reorganize[] and modernize[]” the criminal law by transfering a host of statutory provisions into other sections of the Code. See Governor’s Memo approving L. 1965, cc. 1030, 1031, reprinted in 1965 N.Y. Legis. Ann. 530. Section 353 was transfered to the A.M.L. as part of that initiative, which relocated over 350 sections or parts to “more appropriate chapters of the consolidated and unconsolidated laws.” Rev. Penal Law of 1965, ch. 1030, 1965 N.Y. Laws 1529. Portions of the Penal Code were moved to, inter alia, the Judiciary Law, Banking Law, General Business Law, Navigation Law, Insurance Law, Education Law, Election Law and Civil Rights Law. Rev. Penal Law of 1965, ch. 1030, 1965 N.Y. Laws 1717–1747 (Disposition Table). Section 353 was one of at least eleven provisions moved to the A.M.L. Id. * * * The issue therefore is not whether the language of § 43 makes “clear” that the Legislature intended § 353 to be a strict liability crime. We know that is not the case because not until 1965 were § 43 and § 353 in the same chapter of the Code. The issue, rather, is whether the Legislature “clearly” intended that § 353 become a strict liability ofense when it was transfered from the Penal Code in 1965, along with numerous other provisions, and placed into the A.M.L. as part of 31 the Legislature’s modernization initiative. There is nothing in § 353’s legislative history to indicate that to be the “clear” case. Indeed, the breadth of the undertaking and the varied nature of the provisions that were moved into the A.M.L. and out of the Penal Code make it virtualy impossible to divine any intent aside from the stated goal of modernizing the Penal Code. To the contrary, as part of the same 1965 modernization, the Legislature codified the Model Penal Code’s culpability rules, including Penal Law § 15.15(2), which dictates that criminal statutes are presumed to require proof of a culpable mental state. Importantly, § 15.15(2) applies “to ofenses defined both in and outside” the Penal Code. The Court should look to this modern expression of the Legislature’s intent, § 15.15, for guidance, not the pre-modern § 43. Abate v. Mundt, 25 N.Y.2d 309, 318 (1969), af’d, 403 U.S. 182 (1971). Al of this suggests that § 43 at best muddies what are otherwise clear indications that § 353 must be interpreted to require that the People prove the defendant acted with a culpable mental state. Under no circumstances does imposing § 43 onto § 353 provide the “clear” legislative intent necessary to rebut the strong presumption against strict liability. 32 D. A vast majority of other States’ comparable animal cruelty laws re- quire proof of mens rea This Court has not hesitated to consider New York’s own laws in light of those of its Sister States. See, e.g., Albunio v. City of New York, 2014 N.Y. Slip Op. 02325 (Apr. 3, 2014); J. A. Preston Corp. v. Fabrication Enterprises, Inc., 68 N.Y.2d 397, 408 (1986). Such a consideration here is instructive, as it demon- strates that the Appelate Term’s interpretation of § 353 places New York law at odds with the law of a vast majority of other jurisdictions. Each of New York’s Sister States and the District of Columbia has an animal cruelty statute comparable to A.M.L. § 353.8 The statutes in thirty-four of those jurisdictions expressly require that the government prove the defendant acted with a culpable mental state.9 Of particular note are jurisdictions that in the pre-modern era enacted statutes modeled on New York’s and have subsequently clarified that mens rea is required. The District of Columbia, for example, enacted its statute in 1871 and modeled it after § 353. In 2000, the D.C. Council amended the statute to include an express mens rea requirement. Dauphine v. United States, 73 A.3d 1029, 1032 (D.C. 2013). That amendment came ten years after a judicial decision mandating 8 Those provisions are set forth, in relevant part, in the Addendum to this submission. 9 Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware, District of Columbia, Georgia, Ha- wai, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Mississippi, Missouri, Mon- tana, Nebraska, New Hampshire, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Washington, West Virginia and Wisconsin. 33 that the statute, then silent as to mens rea, be read to include a “knowing” require- ment; the Council’s 2000 amendment conformed the statute to that judicial di- rective. See Regaldo v. United States, 572 A.2d 416, 419-20 (D.C. 1990). The an- imal cruelty laws of Colorado, New Hampshire, North Carolina, Pennsylvania and South Carolina, each of which was modeled after § 353, have been similarly up- dated by those states’ legislatures. Appelate courts in at least four other states have construed animal cruelty statutes comparable to § 353 to require proof of a culpable mental state even though, like § 353, the face of the statute is arguably silent as to mens rea. Consider, for example, California’s statute, a 19th-century statute passed in the wake of, and modeled after, New York’s: (b) . . . every person who overdrives, overloads, drives when over- loaded, overworks, tortures, torments, deprives of necessary suste- nance, drink, or shelter, cruely beats, mutilates, or cruely kils any animal, or causes or procures any animal to be so overdriven, over- loaded, driven when overloaded, overworked, tortured, tormented, de- prived of necessary sustenance, drink, shelter, or to be cruely beaten, mutilated, or cruely kiled; and whoever, having the charge or custo- dy of any animal, either as owner or otherwise, subjects any animal to needless sufering, or inflicts unnecessary cruelty upon the animal, or in any manner abuses any animal, or fails to provide the animal with proper food, drink, or shelter or protection from the weather, or who drives, rides, or otherwise uses the animal when unfit for labor, is, for each ofense, guilty of a crime punishable pursuant to subdivision (d). Cal. Penal Code § 597. California’s state courts—considering similar factors dis- cussed above, including the modern trend away from strict liability ofenses—have 34 imputed a mens rea requirement into the statute. See, e.g., People v. Brian, 168 Cal. Rptr. 105, 107–08 (App. Dep’t Super. Ct. 1980) (considering “the trend in the law . . . toward limiting the number of crimes where no intent or limited criminal intent wil be alowed,” and stating that “Penal Code section 597, subdivision (b) is not a strict liability ofense”); see also People v. Speegle, 62 Cal. Rptr. 2d 384, 390-91 (Ct. App. 1997). Appelate courts in Ohio, New Jersey and New Mexico have joined California in interpreting their statutes to require mens rea. See, e.g., State v. Ham, 2009 WL 2370908, at *11 (Ohio Ct. App. Aug. 3, 2009) (“959.13(A)(1) is not a strict liability ofense; rather, the State must show that the defendant acted reck- lessly.”); State v. Kess, 2008 WL 2677857, at *6 (N.J. Super. Ct. App. Div. July 10, 2008) (requiring “proof that the actor acted knowingly” in order to establish culpability under N.J. Stat. Ann. § 4:22-17(a)(3) (citation omited)); State v. Coli- er, 301 P.3d 370, 376 (N.M. 2013) (“[F]or misdemeanor cruelty to animals . . . the State would have to prove that Defendant acted with a diferent mens rea, criminal negligence.”). In contrast, only one high court—Vermont—has expressly held the animal cruelty statute to warant strict liability. State v. Gadreault, 758 A.2d 781, 783 (Vt. 2000). 35 Thus, the overwhelming majority of states have recognized, either by legislative action or judicial interpretation, that the ofense of animal cruelty is one that requires mens rea, and is not a strict liability ofense. It would be strange in- deed if New York, with its strong statutory and judicial presumptions in favor of mens rea, were to adopt the minority view. E. A properly charged jury could have concluded Mr. Basile did not act with knowledge There can be no serious question that the trial court’s refusal to in- struct the jury that it must find that Mr. Basile acted at least knowingly was preju- dicial on the facts presented. Consider the undisputed evidence that: Mr. Basile was only nineteen years old and Danger was his first pet. (175:16-19). Mr. Basile loved Danger like a son and fed him at every opportunity. (176:3-4; 186:10-11). In order for even a skiled veterinarian adequately to determine the body condition of a long-haired dog like Danger, “you ha[d] to put your hands on him.” (137:22-25; 151:23-152:5). Mr. Basile thought Danger’s condition was atributable to worms and sought veterinary atention for Danger. (112:16-24; 178:7-179:1). Other than fly bites on his ears, Danger showed minimal sign of physical distress. For example, Danger was able to walk without limping and “stand on his own and move around.” (117:16–19; 167:20-24). Danger’s disposition was that of a “very friendly,” non-aggressive, non- apprehensive dog of “reasonable strength.” (153:5-154:15; 167:20-24). 36 Based on this undisputed evidence—and the People’s failure to introduce any evi- dence that Mr. Basile acted with a culpable mental state (170:20-23; 190:25- 191:10)—Mr. Basile was prejudiced by the trial court’s eroneous instruction. See People v. Crimmons, 36 N.Y.2d 230 (1975). Reversal is required. II. THE TRIAL COURT GAVE AN UNDULY NARROW DEFINITION OF “UNJUSTIFIABLE” CONDUCT A defendant violates § 353 only when he “unjustifiably injures, maims, mutilates or kils any animal, whether wild or tame, and whether belonging to himself or to another, or deprives [it] of necessary sustenance, food or drink.” A.M.L. § 353 (emphasis added). Section 353 therefore mandates that conviction under at least the first of these theories (“unjustifiably injures”), which was submited to the jury, be premised on proof beyond a reasonable doubt that defendant’s conduct was unjustified.10 The trial court acknowledged that mandate but then charged the jury with an improper definition of “unjustified.” The trial court instructed that: A person is unjustified in causing or permiting injury to an animal, unless such conduct is authorized by law where is necessary as an emergency measure to avoid an imminent public or private injury that is about to occur. 10 The Appelate Term concluded, with no explanation, that it does “not read the word ‘unjustifiably’ in section 353 to relate to the words ‘deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink.’” People v. Basile, 40 Misc. 3d 44, 46 (App. Term 2d Dep’t 2013). We submit that a plain reading of the statute runs contrary to that conclusion, as does, no doubt, a reading that would aford lenity to a criminal defendant. 37 (237:22-25). The trial court apparently adapted this instruction from the definition of “Justification” found in Penal Law § 35.05(2). See N.Y. Penal Law § 35.05(2) (“Justification; generaly . . . conduct which would otherwise constitute an ofense is justifiable and not criminal when . . . [s]uch conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur.”) In doing so, it ignored the sensible determinations of New York courts that “unjustifiable”—as used in the context of § 353—means what is “not reasonable, defensible, right, unavoidable or excusable.” People v. Arroyo, 3 Misc. 3d 668, 678 (N.Y.C. Crim. Ct. Kings Cnty. 2004). Appelant does not submit that the principle rejected by the trial court—that “because a person could not aford to feed an animal that justifies any actions taken with respect to the animal”—is compeled as a mater of law. But the trial court was required to permit the jury to consider that issue under the proper legal standard. Its failure to do so requires reversal. See People v. Voelker, 172 Misc. 2d 564, 569 (N.Y.C. Crim. Ct. Kings Cnty. 1997) (“Whether or not the People can prove that defendant ‘unjustifiably’ commited these acts is a mater best left to the trier of facts.”). 38 A. “Unjustifiable” conduct under § 353 is that which is not reasonable, defensible, right, unavoidable, or excusable New York courts (other than the trial court in this case) have reached a general consensus that the term “unjustifiable” in § 353 means “what is ‘unjustifiable’ in the context of anti-cruelty statutes is what is not reasonable, defensible, right, unavoidable or excusable.” Arroyo, 3 Misc. 3d at 678; see also Voelker, 172 Misc. 2d at 568-69 (rejecting motion to dismiss § 353 prosecution but making clear that the phrase “‘without justification’ is not a legal conclusion but a factual alegation that means what it says, i.e., with no apparent justification”); People v. O’Rourke, 83 Misc. 2d 175, 178 (N.Y.C. Crim. Ct. N.Y. Cnty. 1975) (“Cruelty to an animal includes every unjustifiable act . . . .”); People v. Sitors, 12 Misc. 3d 928, 932 (Co. Ct. Schoharie Cnty. Ct. 2006) (same); People v. Rogers, 183 Misc. 2d 538, 540 (Watertown City Ct. 2000); People ex rel. Freel v. Downs, 136 N.Y.S. 440, 444 (N.Y.C. Magis. Ct. 1911). The trial court’s unduly restrictive “choice of evils” instruction stands in contrast to the standard articulated in these cases, as wel as fundamental principles of construction. See People v. Green, 68 N.Y.2d 151, 153 (1986) (“[I]f two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted . . . .”) (citation and internal quotation marks omited). The jury in this case was required to find that Mr. Basile’s acts were “unjustified” unless his conduct was “necessary as an emergency measure to avoid 39 an imminent public or private injury that is about to occur.” (Ex. 3, 237:22-25). The scope of conduct a jury might deem “necessary” or “imminent” is vastly narrower than conduct that may be characterized as “reasonable” or “unavoidable” or “excusable.” By limiting the jury to the former, stricter standard, the trial court ered. B. A properly charged jury could have concluded Mr. Basile’s conduct was not “unjustified” Defendant elicited extensive, undisputed testimony that a jury would have found to have justified Mr. Basile’s conduct: In Fal 2007, at the time the aleged criminal conduct occured, Mr. Basile was struggling financialy. His financial position was “dire[]” because he had been in an accident and had been out of work. (119:2-6; 177:3-19). Mr. Basile himself “wasn’t eating as frequently” and at times ate only once a day. (184:24-185:3; 186:12-16). Everything that Mr. Basile ate, he made sure that Danger ate. “[W]hatever leftovers or whatever scraps he [could] provide for him,” he gave to Danger. (112:16-113:13). “If [Basile] had it, [he] fed it” to Danger. (186:10-11; see also Huntley Hearing Minutes at 5:19-6:1). Mr. Basile took Danger to a vet, but it was too expensive. Basile also tried to obtain free veterinary care for Danger. (178:7-179:1). Mr. Basile tried to get “a beter place” for Danger, caling acquaintances and shelters. (177:3-6; 179:2-19, 181:21-182:17). Mr. Basile simply “didn’t have money to take care of [him]self and the dog as wel.” (184:24-185:3). 40 Not knowing what else to do, Mr. Basile reluctantly released Danger to the care of the ASPCA, which could provide care for the canine. (116:17-21; 119:9-14). A jury would find these facts highly probative under a standard requiring that conduct be “reasonable, defensible, right, unavoidable or excusable.” Arroyo, 3 Misc. 3d at 678.11 To suggest otherwise would produce an ilogical result. As the Arroyo court explained: If . . . society’s standard of morality imposes a duty on parents to provide medical care for their children only if they are financialy able to do so, imposing a duty on pet owners regardless of their financial ability would make certain acts a crime if commited toward an animal and yet not a crime if commited toward a child. The Legislature could not have intended to “‘hold a person to a higher standard of conduct with respect to an animal than toward a felow human being.’” Arroyo, 3 Misc. 3d at 678 n.3 (quoting People v. Carr, 183 Misc. 2d 94, 96 (Orchard Park Just. Ct. Erie Cnty. 1999)). The Appelate Term reasoned that any eror in defining “unjustifiably” was irrelevant because it did “not read the word ‘unjustifiably’ in section 353 to relate to the words ‘deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink.’” 40 11 Indeed, at least one court has indicated that seeking veterinary care is the halmark of an owner whose conduct comports with what the law requires. See O’Rourke, 83 Misc. 2d at 180 (“[T]he defendant O’Rourke was obligated to cal a veterinarian in order that the horse might receive proper medical aten- tion.”). Moreover, defendants whose conduct has been arguably far more egregious than Mr. Basile’s have invoked the issue of “unjustifiability” under the proper definition of that term. See, e.g., Voelker, 172 Misc. 2d at 568–69 (whether cuting the heads of of three live, conscious iguanas is unjustifiable is a question for the fact finder); Hammer, 304 A.D.2d at 78-79 (whether “docking” a dog’s tail for cosmetic reasons without using anesthesia is unjustifiable is a question for the fact finder). 41 Misc. 3d 44, 46 (Sup. Ct. App. Term 2013). However, the trial court’s instruction also alowed the jury to convict if it found that Mr. Basile failed to provide “neces- sary sustenance” or if it found that Mr. Basile “unjustifiably injure[d]” his dog. Thus, contrary to the Appelate Term’s reasoning, the error was prejudicial because the jury could have convicted Mr. Basile under the eroneous standard set forth by the trial court. CONCLUSION For the reasons set forth above, Mr. Basile’s conviction must be re- versed. In light of the fact that defendant has already served his probation, and given the nature of the underlying ofense, the charge should be dismissed rather than retried. See People v. Burwel, 53 N.Y.2d 849, 851 (1981). Respectfuly submited, /s/ BEN A. SCHATZ BEN A. SCHATZ KERRY BURNS DANIELLE CHATTIN CAHILL GORDON & REINDEL LLP SCOTT A. ROSENBERG ANDREW C. FINE DAVID CROW THE LEGAL AID SOCIETY Atorneys for Defendant-Appelant Curtis Basile
