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-Appellant, REPLY BRIEF FOR DEFENDANT-APPELLANT CURTIS BASILE SEYMOUR W. JAMES, JR. 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 Attorneys for Defendant-Appellant Curtis Basile Date Filed: January 26, 2015 TABLE OF CONTENTS Page PRELIMINARY STATEMENT .................................................................................... 1 ARGUMENT ................................................................................................................. 3 I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO PROVIDE A MENS REA INSTRUCTION ................................. 3 A. The People Effectively Concede That Section 353 Requires Proof of a Defendant’s Mental Culpability ............................................................ 3 B. The People Have Not Demonstrated that the Legislature Clearly Intended to Impose Strict Liability ............................................................... 5 C. The Trial Court’s Error Was Not Harmless ............................................... 14 II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY CHARGING THE JURY WITH AN IMPROPERLY NARROW DEFINITION OF “UNJUSTIFIABLY” ............................................................. 15 A. Defendant Preserved This Issue for Appellate Review .............................. 15 B. The People’s Arguments Do Not Support the Trial Court’s Definition of “Unjustifiably” ..................................................................... 18 CONCLUSION ............................................................................................................ 20 -ii- TABLE OF AUTHORITIES Cases Page(s) Broadway & E.S. Stage Co. v. Am. Soc’y for Prevention of Cruelty to Animals, 1873 WL 9871 (N.Y. Com. Pl. 1873) ............................................................... 11n Bullington v. Missouri, 451 U.S. 430 (1981) ............................................................................................ 19 Clark v. Cuomo, 66 N.Y.2d 185 (1985) ........................................................................................... 6 Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427 (1969) ........................................................................................... 6 People ex rel. Freel v. Downs, 136 N.Y.S. 440 (N.Y.C. Magis. Ct. 1911) ............................................... 11n-12n Neder v. United States, 527 U.S. 1 (1999) ................................................................................................ 20 People v. Bowe, 61 A.D.3d 1185 (3d Dep’t 2009) .................................................................. 4n-5n People v. Burwell, 53 N.Y.2d 849 (1981) ......................................................................................... 20 People v. Coe, 71 N.Y.2d 852 (1988) ........................................................................................... 5 People v. Feingold, 7 N.Y.3d 288 (2006) ..................................................................................... 16-17 People v. Finch, 23 N.Y.3d 408 (2014) ......................................................................................... 18 People v. Finkelstein, 9 N.Y.2d 342 (1961) ....................................................................................... 4, 4n People v. Garson, 6 N.Y.3d 604 (2006) ......................................................................................... 10n -iii- People v. Gray, 86 N.Y.2d 10 (1995) ........................................................................................... 9n People v. Green, 68 N.Y.2d 151 (1986) ....................................................................................... 19n People v. Kims, 2014 N.Y. Slip Op. 07196, 2014 WL 5368780 (N.Y. Oct. 23, 2014) ......... 18-19 People v. Lewis, 23 N.Y.3d 179 (2014) ......................................................................................... 17 People v. Martinez, 20 N.Y.3d 971 (2012) ......................................................................................... 9n People v. Martinez, 83 N.Y.2d 26 (1993) ........................................................................................... 19 People v. Mezon, 80 N.Y.2d 155 (1992) ......................................................................................... 18 People v. Nelson, 11 Misc. 3d 126A, 2006 WL 395217 (1st Dep’t 2006) ...................................... 4n People v. Rosas, 8 N.Y.3d 493 (2007) ........................................................................................... 14 People v. Ryan, 82 N.Y.2d 497 (1993) ................................................................................... 5, 10n People v. Tinsdale, 1868 WL 5922 (N.Y. Gen. Sess. 1868) .................................................... 11n-12n People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 225 N.Y. 25 (1918) ............................................................................................... 8 Riley v. Cnty. of Broome, 95 N.Y.2d 455 (2000) ....................................................................................... 10n State v. Gadreault, 171 Vt. 534 (2000) ............................................................................................ 13n -iv- United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) ............................................................................................ 10n Law Review Articles Dannye Holley, Culpability Evaluations in the State Supreme Courts from 1977 to 1999: A "Model" Assessment, 34 Akron L. Rev. 401 (2001) ........................... 13n Darryl K. Brown, Criminal Law Reform and the Persistence of Strict Liability, 62 Duke L.J. 285 (2012). ................................................................................. 12, 13n David Favre & Vivien Tsang, The Development of Anti-Cruelty Laws During the 1800’s, 1993 Det. Coll. L. Rev. 1 (1993) ......................................................... 11n Herbert Wechsler, The Challenge of A Model Penal Code, 65 Harv. L. Rev. 1097 (1952) .................................................................................................................. 8n Laurie L. Levenson, Good Faith Defenses: Reshaping Strict Liability Crimes, 78 Cornell L. Rev. 401 (1993) ............................................................................... 13n Paul J. Larkin, Jr., Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause, 37 Harv. J.L. & Pub. Pol’y 1065 (2014) ......... 13n News Articles Annmarie Fertoli, NYPD’s Involvement Hikes Arrests for Animal Cruelty, WNYC (Aug. 4, 2014) ................................................................................................... 13n Bradley Hope, With the Public’s Help, ASPCA Better Tackles Crime, The New York Sun (Jan. 5, 2007) .................................................................................... 13n Michael Winerip, PETA Finds Itself on Receiving End of Others’ Anger, The New York Times (July 6, 2013) .................................................................................. 8n Statutes N.Y. A.M.L § 43 .......................................................................................................... 9, 9n, 10n § 353 .............................................................................................................passim § 353-a .................................................................................................. 7, 10n, 11n § 353-b ............................................................................................................ 7, 7n § 353-c .................................................................................................................. 7 § 353-d .......................................................................................................... 7, 10n -v- §353-f ...................................................................................................... 7, 7n, 10n N.Y. C.P.L. § 470.05.......................................................................................... 15-16 N.Y. Penal Law § 15.15(2) .....................................................................................................passim § 195.06 ............................................................................................................... 7n § 195.06-a ........................................................................................................... 7n § 195.11 ............................................................................................................... 7n § 195.12 ............................................................................................................... 7n § 265.01 ............................................................................................................... 9n Treatise Sections 4 Am. Jur. 2d Animals § 4 (2011) ............................................................................ 8n Other Authorities Herbert L. Packer, The Limits of Criminal Sanction 123 (1968) ............................ 8n PRELIMINARY STATEMENT The People’s lengthy opposition brief only serves to underscore the trouble with their aggressive position that a defendant may be subject to incarceration for injuring an animal, even though his actions were unknowing and reasonable. In response to Defendant’s Point I, the People assert that the Legislature’s intent to make § 353 of the Agriculture & Markets Law a strict liability offense “could not be clearer.” Opp’n 5. The People are bound to take that position in light of Penal Law § 15.15, which bars strict liability absent the Legislature’s clear intent to impose it. Yet the People cannot point to any case that has discerned a clear legislative intent to make § 353 a strict liability statute. To the contrary, lower New York courts to have examined the statute have described its antiquated text as anything but clear. See Def.’s Br. 17 n.3. Ultimately, the People’s opposition brief reflects just how untenable their aggressive reading of § 353 is. At various points in their brief, the People effectively concede that § 353 does “embody an identifiable mental state” and “does in fact require . . . an implied mental state.” Opp’n 47, 49 (emphasis added). These statements are startling and dispositive. By definition, a statute with an “identifiable mental state” is not “clearly” a strict liability statute. The Court therefore need not wade into the misguided arguments the People offer to support their strict liability position. Put simply, reversal is required because a jury -2- could have reasonably concluded that Mr. Basile lacked the mental state the People acknowledge is “embod[ied]” in § 353. The People also suggest that strict liability is appropriate because the sanction is “minimal.” Opp’n 46. We completely disagree. As a Class A misdemeanor, a violation of § 353 carries a sanction of up to one year in jail—a very substantial punishment. Moreover, the stakes may well go higher still, as the Legislature is currently considering making a second violation of § 353 a felony, punishable by up to two years in state prison. None of this is consistent with the People’s suggestion that § 353 is too minor a statute to bother requiring mens rea to be shown. In response to Defendant’s Point II, the People first assert a meritless preservation argument based on selective reference to the trial record. Defense counsel indicated to the trial court what the word “unjustifiably” in § 353 means; the parties debated the issue before the trial court; and the trial court issued a clear ruling. Defendant was not required to press the issue further. The People’s arguments that the trial court’s definition of “unjustifiably” was proper are also meritless. The People do not explain why the trial court’s “choice of evils” instruction makes any sense in the context of § 353. Nor do they explain why Defendant’s preferred instruction, which would have permitted the jury to consider the reasonableness of Mr. Basile’s conduct, is not sensible and fair -3- as many courts have concluded. The People instead contend that Defendant’s definition is not “forged for criminal prosecutions” and that juries are not equipped to interpret “broad” terms like “reasonable.” Of course, criminal juries are trusted to apply such terms all the time. Mr. Basile’s conviction should be reversed. ARGUMENT I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO PROVIDE A MENS REA INSTRUCTION A. The People Effectively Concede That Section 353 Requires Proof of a Defendant’s Mental Culpability Apparently recognizing the challenges presented by their primary position that § 353 is a strict liability statute, the People attempt to soften that position by assuring the court that criminal sanction is appropriate because “[i]nherent in the ordinary meaning of the words that describe the prohibited acts or omissions is the knowledge that the actor is engaging in the wrongdoing that the statute makes criminal.” Opp’n 48. However, in trying to supply that assurance, the People go too far: by acknowledging that a mens rea is “inherent” in § 353, they effectively concede that § 353 reflects the Legislature’s intent to require proof of mens rea. The People admit that § 353 “does in fact require . . . blameworthy acts and at the very least an implied mental state before liability can be imposed.” Opp’n 6, 47- 48. They admit that § 353 does in fact “embody an identifiable mental state.” Id. -4- 49. And they admit that “mental culpability [is] implicit” in the statute. Id. The parties apparently agree, therefore, that § 353 requires proof of mental culpability. Despite these concessions, the People nonetheless argue that “the trial court was not compelled, as a matter of elemental fairness . . . to add a mens rea element to the statute” and to provide a mens rea instruction. Opp’n 51. In fact, that is precisely what the trial court was required to do. The Legislature commands: Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense . . . if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability. Penal Law § 15.15(2). A statute containing an “implicit” mens rea element therefore no less defines a crime of mental culpability than a statute that expressly contains a mens rea element. See People v. Finkelstein, 9 N.Y.2d 342, 344 (1961) (reading the “vital element of scienter” into statute where it was found to be implicit). The trial court was “compelled,” by § 15.15(2)’s mandate, to define § 353 as a crime of mental culpability.1 1 At page 30 of their brief, the People cite two cases suggesting that it would be appropri- ate to ignore P.L. § 15.15(2) in the context of § 353. The first case, People v. Nelson, 11 Misc. 3d 126A, 2006 WL 395217 (1st Dep’t 2006), is incorrect. The Nelson court believed that it could not “add[], through judicial gloss, a culpable mental state or new element not provided by the Legislature.” Had the Nelson court considered P.L. § 15.15, or any relevant authority at all, it would not have held that § 353 imposed strict liability. See Finkelstein, 9 N.Y.2d at 344 (demonstrating that courts do not legislate scienter into a section expressly lacking mens rea; they “interpret[] that section as instinct with the idea of scienter.”). The second case, People v. -5- B. The People Have Not Demonstrated that the Legislature Clearly In- tended to Impose Strict Liability The People acknowledge that strict liability laws are “generally disfavored” and that this Court’s analysis begins with a “presumption of mental culpability” that may be overcome only by a showing of “clear” legislative intent. Opp’n 9, 42. While the People make a great effort to locate a “clear” legislative intent to impose strict liability in § 353, their brief simply underlines the speculation and uncertainty inherent in the language and structure of the 150-year-old statute and its related provisions. The Legislature has supplied the Court with a directive in such circumstances: it must construe § 353 as “defining a crime of mental culpability.” Penal Law § 15.15; see also People v. Ryan, 82 N.Y.2d 497, 502 (1993) (deferring to Legislature to amend drug law to impose strict liability where its intent to do so was unclear); People v. Coe, 71 N.Y.2d 852, 854-55 (1988) (“[W]hen [the Legislature] intends to impose strict liability, it does so clearly.”). As set forth below, each of the People’s arguments in support of their strict liability position is unavailing: First, the People maintain that the Legislature’s relatively recent passage of a series of animal welfare laws, each of which expressly requires proof of mens Bowe, 61 A.D.3d 1185 (3d Dep’t 2009), did not address at all whether § 353 was a strict liability statute. It simply rejected the defendant’s claim that the trial court erroneously construed the statute as imposing strict liability because that claim was “not substantiated by the record.” Id. at 1186-87. -6- rea, “establishes” the Legislature’s intent that § 353 impose strict liability because the Legislature “could have easily” amended § 353 to include a mens rea when it passed those laws. Opp’n 8-9. It is settled, however, that “legislative inaction, because of its inherent ambiguity, affords the most dubious foundation for drawing positive inferences.” Clark v. Cuomo, 66 N.Y.2d 185, 190-91 (1985); see also Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 433 (1969) (“Legislative inaction is a weak reed upon which to lean in determining legislative intent.”). Even without that settled rule, the People’s argument fails under their own reading of the statute: if the Legislature already understands § 353 to “embody an identifiable mental state” (Opp’n 49), it would have no reason to further amend the statute. If anything, New York’s modern animal welfare laws demonstrate that § 353 should be interpreted to include a mens rea requirement. As the following chart reflects, each of these laws contains a mens rea requirement no matter the severity of the maximum penalty: -7- Statute (Date Enacted) Prohibition Required Mens Rea Penalty 353-a (1999) “[C]aus[ing] serious physical injury to a companion animal with aggravated cruelty.” Intent Felony 353-b (2003) Failing to provide a dog with “shelter appropriate to its breed” Knowledge Violation 353-c (2007) “[K]ill[ing], or stun[ning] to facilitate the killing of, a fur- bearing animal by means of an electrical current.” Intent Misdemeanor 353-d (2008) “Confin[ing] a companion animal in a motor vehicle in extreme heat or cold.” Knowledge Violation 353-f (2014)2 “Companion animal” tattooing and piercing. Knowledge Violation It would be nonsensical to construe § 353 as imposing strict liability in light of these provisions.3 Simply put, the modern Legislature requires proof that a defendant’s prohibited conduct against animals was accompanied by a mens rea. Under the People’s construction of § 353, a defendant could be acquitted for abuses against a child, but convicted for those same abuses against a dog. See Def.’s Br. 22. The People offer no compelling response to this observation— which has been noted by sister state courts (Def.’s Br. 22, n.5)—other than to make 2 Section 353-f was signed into law on December 15, 2014 and becomes effective April 14, 2015. L.2014, c. 479, § 1. See also, e.g., Penal Law §§ 195.06, 195.06-a, 195.11-12 (prohibiting intentional harm to a service animal or police work dog). 3 Consider for instance a pet owner prosecuted under § 353-b for leaving his dog outside in cold weather without a dog house. Even though the penalty under that provision is minor (a $100 fine), the People must prove that the owner knew a dog of that breed could not withstand such weather without a dog house. Meanwhile, according to the People’s position, defendants convicted under § 353 face up to a year in jail without any mens rea requirement. -8- the bizarre argument that animals need more protection than children because abuse against animals “goes unseen” and animals cannot “seek outside help,” “report mistreatment,” “defend themselves,” or “explain what happened.” Opp’n 45. Of course, each of these facts applies with equal force to children. The People’s reading of the statute would have the Court elevate animal welfare over child welfare, a position wildly inconsistent with law and policy.4 The People downplay the criminal penalty attached to § 353 liability, calling it “relatively small” and “minimal.” Opp’n 6, 46. However, a defendant may be incarcerated upon conviction under § 353 (a Class A misdemeanor)—hardly a “minimal” punishment by any standard. See People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 225 N.Y. 25, 32-33 (1918) (Cardozo, J.) (expressing skepticism that crimes authorizing imprisonment are compatible with reduced mental culpability).5 Moreover, the Legislature is currently considering a bill that 4 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 property.”); Michael Winerip, PETA Finds Itself on Receiving End of Others’ Anger, N.Y. Times (July 6, 2013) (“In New York City last year, 8,252 dogs and cats were euthanized.”). 5 See also Herbert L. Packer, The Limits of Criminal Sanction 131 (1968) (“[T]he combi- nation of stigma and loss of liberty involved in a conditional or absolute sentence of imprison- ment sets that sanction apart from anything else the law imposes. When the law permits that de- gree of severity, the defendant should be entitled to litigate the issue of culpability.”); Herbert Wechsler, The Challenge of A Model Penal Code, 65 Harv. L. Rev. 1097, 1109 (1952) (“The most that can be said for [strict liability] provisions is that where the penalty is light, where knowledge normally obtains and where a major burden of litigation is envisioned, there may be some practical basis for a stark limitation of the issues; and large injustice can seldom be done. If these considerations are persuasive, it seems clear, however, that they ought not to persuade -9- would introduce felony liability into § 353’s statutory scheme, subjecting a defendant convicted of a second violation of § 353 to the possibility of a two-year prison term. N.Y. Ass. Bill. No. 1412 (introduced Jan 12, 2015). Repeat offender statutes like the one proposed for § 353, along with other statutes that raise the stakes based on prior criminal convictions,6 confirm that this Court should follow Judge Cardozo’s insight and reject the People’s description of § 353 as a “minor” offense. Second, the People point to A.M.L. § 43 as the “controlling” indication of legislative intent to make § 353 a strict liability law.7 Opp’n 61. The People do not dispute that these two statutes remained in separate sections of the legislative where any major sanction is involved. In such a case, if not always, absolute penal liability is an abuse.”). 6 For example, under PL § 265.01(1) and (2), conviction of any prior crime elevates Crim- inal Possession of a Weapon in the Fourth Degree, a misdemeanor, to Criminal Possession of a Weapon I the Third Degree, a Class D felony. 7 The People assert that Defendant’s challenge to § 43’s applicability is “totally unpre- served” because Defendant did not “explain why section 43 was inapplicable to section 353” when the “court announced that section 43 was dispositive.” Opp’n 34. It was not until that an- nouncement, however, that § 43 was even mentioned by the court or by either party. The trial court raised it sua sponte in its bench ruling at the charge conference. The People’s position on preservation would therefore mean that Defendant was required to anticipate the basis for the trial court’s ruling and to then argue with the trial court about the specific bases for its ruling af- ter it was issued. Unsurprisingly, the law of preservation is not nearly so rigid. People v. Mar- tinez, 20 N.Y.3d 971, 977 (2012) (“Defense lawyers cannot be expected to be clairvoyant.”). The single case the People cite on this point makes clear that Defendant’s written and oral asser- tions throughout trial that § 353 requires proof of mens rea were quite sufficient to preserve the issue for the Court’s review. People v. Gray, 86 N.Y.2d 10, 19 (1995) (“[I]n order to preserve a claim of error in . . . a charge to the jury, a defendant must make his or her position known to the court.”). -10- code until § 353’s transfer to the A.M.L. in 1965, along with a number of other laws, as part of a “major” effort to reorganize the Penal Code. See Def.’s Br. 27- 31. The People instead assert, without any supporting authority, that “the Legislature must be presumed to have understood the import of transferring” § 353 to the A.M.L. Opp’n 8. That argument turns the presumption against strict liability on its head: § 15.15 requires judicial skepticism of legislative intent to impose strict liability; it cautions against giving the benefit of the doubt to unclear legislative action. The People must point to clear evidence of such an understanding on the part of the Legislature, not simply ask the Court to “presume” it. The People do not, and cannot, do so.8 8 The People assert that because § 43 is “unambiguous” any resort to legislative history is “forbidden.” Opp’n 31, 52. This argument is wrong for a number of reasons. First, the cases the People cite for that proposition (see Opp’n 29) state just the opposite. See Riley v. Cnty. of Broome, 95 N.Y.2d 455, 463 (2000) (“We note at the outset that it is appropriate to examine the legislative history even though the language of [the statute] is clear . . . the legislative history of an enactment may also be relevant and is not to be ignored even if the words are clear.”) (internal quotation marks omitted); see also People v. Garson, 6 N.Y.3d 604, 611 (2006). Second, courts regularly rely on legislative history to test whether plainly worded statutes lacking express mens rea requirements impose strict liability. See, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 68, 73 (1994) (examining legislative history even though statute’s “natural grammatical reading” suggested that proof of mens rea was not required as to an element of the offense); see also People v. Ryan, 82 N.Y.2d 497 (1993). Third, § 43—and its application to § 353—is ambiguous for a number of reasons. Section 43 does not state that the doing of a proscribed act is “proof” of a violation, as the People contend (Opp’n 5); it states that the doing of such an act is “evidence” of a violation. Further, it merely states that a defendant’s “intent” to do a prohibit act is “immateri- al,” but it is silent as to the whether other mental states may be considered. Finally, the People’s interpretation of § 43, which would require that every statute in the A.M.L. impose strict liabil- ity, is absurd in light of the numerous statutes in the A.M.L., some enacted as recently as last year, that contain express mental states. See, e.g., A.M.L. §§ 353-a—353-d, 353-f. -11- Third, the People devote much of their brief speculating about ostensible policies that could inform a legislative decision to pass a strict liability animal welfare law. Opp’n 41-47. For instance, the People speculate about a legislative concern for preventing “sick and starving animals . . . aggressively scavenging for food and spreading disease” and about the link between animal abusers and “serial killers and school shooters.” Opp’n 41, 46. The People do not assert these concerns actually informed the Legislature’s decision to enact § 353, let alone its supposed intent that § 353 impose strict liability.9 Nor could they: we know almost nothing about the legislative motivations behind the passage of the law.10 In any 9 The People’s primary support for the Legislature’s concern about the “link between cru- elty to animals, and cruelty to people” is a 1999 legislative memorandum supporting § 353-a, which contains an express mental state. Opp’n 47, n.10. This concern appears to reflect a re- newed legislative focus on the effects of animal abuse on humans. Early nineteenth century an- imal cruelty statutes, including the 1828 statute discussed at length in the People’s brief (Opp’n 37-38), were passed with concern “for the moral state of the human actor, rather than the suffer- ing of the non-human animal.” David Favre & Vivien Tsang, The Development of Anti-Cruelty Laws During the 1800’s, 1993 Det. Coll. L. Rev. 1, 11 (1993) (hereinafter Favre & Tsang). Sec- tion 353, passed nearly four decades later, was “substantially different legislation” concerned with preventing “cruelty to animals.” Id. at 13. Therefore, the People’s argument that the word “maliciously” was “removed” with the passage of the 1867 Act (Opp’n 38, 41) is misleading to the extent it implies that there was any continuity between the 1828 law and the 1867 law. We find no evidence that the two laws had anything to do with one another. 10 As to a number of early animal welfare laws, including New York’s, “[n]owhere . . . do we have any contemporaneous records about the debate in the legislature: We do not know the submitter of the legislation, the nature of the debate, or who supported the measures adopted. The analysis is limited to the actual language adopted. Indeed, there is a dearth of both legal and nonlegal writing dealing with animal issues during [the 19th] century.” Favre & Tsang at 7. Unsurprisingly then, and contrary to the People’s suggestion, Opp’n 38, there is no con- sistency among early courts’ views as to the mens rea issue. See Broadway & E.S. Stage Co. v. Am. Soc’y for Prevention of Cruelty to Animals, 1873 WL 9871, at *6 (N.Y. Com. Pl. 1873) (“the act of 1867 was declaratory only of the common law” for which “deliberation was neces- sary, as evidencing the wicked intent to inflict injury upon the animal”); People ex rel. Freel v. -12- event, such policy considerations are irrelevant; the question is not whether the Legislature could pass a strict liability animal welfare law if it wished (presumably, it could), but whether it has indicated its clear intent to do so (undoubtedly, it has not). The People also suggest that because New York was a “leader” in the passage of early animal welfare legislation, it “should not suddenly become a mere follower of other states,” which is apparently what the People believe would happen if § 353 were construed to contain a mens rea. Opp’n 60. Of course, it is the Legislature, not the Court, that determines whether New York should “lead” or “follow” in matters of policy, and the fact that New York passed the first animal welfare legislation says nothing about whether that legislation should be construed as reaching accidental or inadvertent injury to animals. Indeed, if New York’s “leadership” is at all relevant, it is through its courts’ “strong record of inferring culpability requirements” into criminal statutes. See Darryl K. Brown, Criminal Law Reform and the Persistence of Strict Liability, 62 Duke L.J. 285, 319-21 (2012). Yet the People would have this Court be the first and only high court to Downs, 136 N.Y.S. 440, 446 (N.Y.C. Magis. Ct. 1911) (dismissing complaint where court was “not satisfied that [the defendant] has been guilty of any willful infliction of unavoidable pain”); but see People v. Tinsdale, 1868 WL 5922 (N.Y. Gen. Sess. 1868) (“The intention is assumed directly from the act itself.”). -13- conclude that its animal welfare statute imposed strict liability in spite of its state legislature’s adoption of the Model Penal Code’s culpability presumptions.11 Those presumptions, embodied in Penal Law § 15.15, are especially important in the context of criminal animal welfare laws. The People acknowledge the recent political interest in animal cruelty (“the heightening publicizing of cases involving animal abuse,” Opp’n 46), and they may well be correct that recent increases in enforcement of animal welfare laws reflect the public’s view that cases of abuse are “important to prosecute.”12 The conclusion to draw from these observations is not that the government’s burden should be lessened.13 It is that 11 State v. Gadreault, 171 Vt. 534 (2000), is not “the most instructive of all the out-of-state case law.” Opp’n 60. First, Vermont does not have a codified mens rea presumption like New York. See id., Brown, 62 Duke L.J. at 294; Dannye Holley, Culpability Evaluations in the State Supreme Courts from 1977 to 1999: A "Model" Assessment, 34 Akron L. Rev. 401, 403 n.20 (2001) (Vermont courts are among those that have “failed to take a significant step to enhance the identification of the appropriate/requisite culpable mental state when the legislature itself failed to undertake or clearly complete this task.”). Second, Gadreault is the outlier. Comparable statutes in an overwhelming majority of sister states either contain express mens rea provisions or have been construed to require proof of mens rea. See Addendum to Def.’s Br. 12 Opp’n 46. The ASPCA reported that “70 arrests took place in the first six months of [2014] — more than twice the number . . . over the same period last year.” Annmarie Fertoli, NYPD’s Involvement Hikes Arrests for Animal Cruelty, WNYC (Aug. 4, 2014); see also Bradley Hope, With the Public’s Help, ASPCA Better Tackles Crime, The New York Sun (Jan. 5, 2007) (“A growing public perception of animal cruelty and new resources have led the law enforce- ment arm of the American Society for the Prevention of Cruelty to Animals to Prevent Cruelty to Animals to a more than 400% surge in arrests since 1999, the agency reported.”). 13 See Paul J. Larkin, Jr., Strict Liability Offenses, Incarceration, and the Cruel and Unusu- al Punishments Clause, 37 Harv. J.L. & Pub. Pol’y 1065, 1068 (2014) (“As a procedural matter, strict liability offenses make charges remarkably easy to prosecute.”); Laurie L. Levenson, Good Faith Defenses: Reshaping Strict Liability Crimes, 78 Cornell L. Rev. 401, 404 (1993) (“The strict liability doctrine affords both an efficient and nearly guaranteed way to convict defend- ants.”). -14- the government should be required to prove what it must in nearly every criminal case: that a “wrongful deed” be “coupled with mens rea” before liability may attach. People v. Rosas, 8 N.Y.3d 493, 496 n.2 (2007) (quoting Black’s Law Dictionary 39 (8th ed. 2004)). C. The Trial Court’s Error Was Not Harmless The People try to justify the trial court’s instructional failure by arguing that “it is difficult to conceive” that a jury could find Mr. Basile deprived his dog of sustenance without determining his “actions were either intentional or knowing.” Opp’n 6-7. This argument is misguided. As an initial matter, the People miss the point when they argue that because “[i]t is such basic knowledge” that animals “cannot survive” without food, the “the act of depriving . . . an animal necessary sustenance demonstrates . . . mental culpability.” Opp’n 50. As the People acknowledge elsewhere in their brief, the relevant issue is not whether Defendant knew as a general matter that a dog cannot survive without food, but whether he “kn[e]w that he was not providing adequate food to the animal.” Id. 10-11; see also id. 62-63. Under that standard, it is not at all “difficult to conceive” that Mr. Basile acted without knowledge that his actions deprived his dog of necessary sustenance. Mr. Basile testified that he thought his dog was skinny because it had worms, and testified that he tried to take the dog to a vet. The People’s own expert testified -15- that Mr. Basile “would have had to put [his] hands” on the dog to appreciate the extent of the dog’s emaciated condition, and testified that the dog showed minimal signs of physical distress and was of “reasonable strength.” A jury could readily conclude from these and numerous other facts (see Def.’s Br. 35-36) that Mr. Basile did not knowingly deprive his dog of necessary sustenance.14 II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY CHARGING THE JURY WITH AN IMPROPERLY NARROW DEFINITION OF “UNJUSTIFIABLY” A. Defendant Preserved This Issue for Appellate Review The People are wrong that Defendant’s challenge to the trial court’s definition of “unjustifiably” is unpreserved or waived. Opp’n 11. The People’s position relies on an incomplete discussion of the trial record and an incorrect un- derstanding of this Court’s precedents. Preservation is “sufficient if the party made his position with respect to the ruling or instruction known to the court, or if in response to a protest by a party, the court expressly decided the question raised on appeal.” C.P.L. § 470.05. The 14 It is only “difficult to conceive” of acquittal when the foregoing facts are completely ig- nored in favor of the People’s lopsided narrative of what the jury “could” have concluded. For instance, the People acknowledge “it was necessary to put hands on [the dog] in order to appre- ciate the full extent of his poor condition” but suggest “the jury could conclude that pet-owners, particularly loving ones like defendant claimed to be, do just that.” Opp’n 63 (emphasis added). The People also suggest that because the dog “reached his emaciated state over a long period of time” that “defendant had to have known that he was not providing sufficient food.” Opp’n 64 (emphasis added). This speculation is coupled with other inferences the People make but that the jury could have rejected—for instance that “it was obvious to any observer” that the dog was “extremely emaciated” or that Mr. Basile’s “excuse for the poor condition of the dog . . . was dis- ingenuous.” Opp’n 63-64. -16- following chronology from the trial record demonstrates that Defendant met this standard: Before the Defendant took the stand on September 22, 2009, the People requested that the trial court prohibit defense counsel from eliciting tes- timony that Defendant had been in an accident and did not have any money. Tr. 170:4-11. Defense counsel responded that she intended to elicit testimony about Defendant’s “financial situation and why he was in the state that he was in . . . [and] the reason he was in financial dire straits.” Tr. 170:12-19. The People argued that § 353 “has nothing to do with the financial status that the defendant was in and why he was unable to provide for this ani- mal.” Tr. 170:20-23. In response, defense counsel directed the court to the language of the statute and its focus on persons who “unjustifiably injure” an animal. Tr. 170:24-171:2. The trial court summarized the parties’ dispute, stating: “my understand- ing is that the defendant, based on your opening and sidebar conference, you intend to put on the defense that the defendant basically could not afford to feed the animal because he was out of work.” Tr. 171:7-11. Defense counsel confirmed that was correct. Tr. 171:12. The trial court then rejected defense counsel’s position, stating: “I agree with the People that that is not a defense to the charge.” Tr. 171:13-15. This chronology clearly demonstrates that C.P.L. § 470.05’s requirements were met. Defendant “made his position . . . known” to the trial court, which then “expressly decided the question” on appeal—i.e., whether the circumstances surrounding Defendant’s allegedly culpable conduct could support a defense to the charge of “unjustifiably injur[ing]” an animal. See also People v. Feingold, 7 -17- N.Y.3d 288, 290 (2006) (The “trial judge’s decision . . . demonstrates that he specifically confronted and resolved th[e] issue.”) This Court has recently found preservation to be adequate on a much leaner set of facts. See People v. Lewis, 23 N.Y.3d 179, 188 (2014) (issue preserved where “counsel attempted to make a motion with regard to th[e] issue” but the “court interrupted him and summoned the jury.”). The People’s related argument that Defendant waived his challenge to the trial court’s definition of “unjustifiably” is also untethered to the facts of the record, as the following chronology reflects: As explained above, on September 22, 2009, the trial court agreed with the People that consideration of Defendant’s financial circumstances was “not a defense to the charge.” Tr. 171:13-15. Also on September 22, 2009, the trial court provided his proposed jury charge to counsel. 173:18-20. On September 23, 2009, apparently in response to the trial court’s pro- posed charge, Defendant submitted a “Memorandum of Law in Support of an Amended Jury Charge.” Opp’n A6-A16. Defendant’s memorandum argued extensively that “§ 353 is not a strict liability offense” and presented other arguments about the charge to the trial court. Opp’n A7-A13. Defendant’s memorandum did not reargue the issue the trial court had already resolved against Defendant regarding the definition of “unjustifiably.” These facts demonstrate that Defendant acceded to an alternative charge on the term “unjustifiably” after the trial court considered and rejected his preferred charge. That decision does not constitute a waiver under this Court’s preservation -18- jurisprudence. See People v. Mezon, 80 N.Y.2d 155, 161 (1992) (“The law does not require litigants to make repeated pointless protests after the court has made its position clear. Nor does the law require litigants who have unsuccessfully sought a ruling to boycott the remainder of the proceeding in order to avoid forfeiture of their claims.”); see also People v. Finch, 23 N.Y.3d 408, 412-13 (2014). B. The People’s Arguments Do Not Support the Trial Court’s Definition of “Unjustifiably” The People do not dispute that the trial court’s definition of “unjustifiably” deprived the jury of considering whether Defendant’s conduct was reasonable under the circumstances. Rather than explain the correctness of the trial court’s given instruction (i.e., that conduct is unjustified unless it is “necessary as an emergency measure”), the People’s response focuses on why a jury should not be permitted to consider a defendant’s reasonableness in a § 353 prosecution. Opp’n 69-73. Each of the People’s arguments on this point are meritless. First, the People assert that the term “unjustifiably” in § 353 “does not apply to depriving an animal of sustenance—the theory under which defendant was prosecuted.” Opp’n 70. This argument is easily dispensed with: the trial court’s charge was not restricted to any particular “theory.” It permitted the jury to convict if it found that Defendant “unjustifiably injure[d]” his dog, in addition to whether he failed to provide necessary sustenance. People v. Kims, 2014 N.Y. Slip Op. 07196, 2014 WL 5368780 (N.Y. Oct. 23, 2014) (“[W]here a jury returns a -19- general verdict and it is impossible to determine if the verdict was based on an illegal charge, or on an alternative proper charge . . . the error cannot be harmless.”) (citing People v. Martinez, 83 N.Y.2d 26 (1993)).15 Second, the People make the argument that defining “unjustifiable” conduct as that which is not “reasonable” or otherwise “defensible, right, unavoidable or excusable” is problematic because it provides “little guidance to jurors” and is not “forged for criminal prosecutions.” Opp’n 71-72. Of course, jurors are expected to understand and apply the term “reasonable” in every criminal prosecution. See Bullington v. Missouri, 451 U.S. 430, 439 (1981) (“reasonable doubt” standard is one of the “hallmarks of the trial on guilt or innocence.”). Unsurprisingly, the People lack any support for the notion that courts should apply an imprecise charge simply because it may be easier for a jury to understand.16 Third, the People assert that any instructional error as to the term “unjustifiably” was harmless. The People’s harmless error analysis does not 15 The Court should read “unjustifiably” to modify the phrase “deprived of necessary suste- nance.” In light of § 353’s dense and archaic language, such a construction is no less natural than the contrary interpretation the People offer. 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 . . . .”). 16 We know of no other court to have defined “unjustifiably” as the trial court did here. As Defendant’s opening brief explains, however, numerous courts have sensibly determined that “unjustifiably” in the context of § 353 means what is “not reasonable, defensible, right, unavoid- able or excusable.” See Def.’s Br. 38-39. Contrary to the People’s argument at page 72 of their brief, it is irrelevant that these courts addressed this issue on pre-trial motions, rather than in the context of a jury charge. It would make no sense for a court to define “unjustifiably” one way before trial and another way after. -20- explain why the jury lacked evidence sufficient to support acquittal, but instead invites the Court to “become in effect a second jury to determine whether the defendant is guilty.” Neder v. United States, 527 U.S. 1, 19 (1999) (internal quotation marks omitted). Of course, it was the jury’s job to assess Mr. Basile’s credibility and whether certain evidence “put the lie” to his testimony. Opp’n 73. It was the jury’s job to infer that Mr. Basile did not “attend[]” to his dog’s fly strike (there was no direct testimony on this issue). Id. And surely the jury would have outright rejected the People’s mischaracterization that the dog was “dehydrated” (id.), in light of their expert’s own testimony that the dog was not, (see Tr. 162:15-20). In short, it was for the jury to conclude whether or not Mr. Basile’s “excuse [wa]s a good excuse.” Opp’n 73. For the reasons set forth in Defendant’s opening brief, see pp. 38-39, a jury could have easily determined that it was. CONCLUSION Mr. Basile’s conviction should be reversed. Because Mr. Basile has already served his probation, and given the nature of the underlying offense, the charge should be dismissed rather than retried. See People v. Burwell, 53 N.Y.2d 849, 851 (1981). Respectfully submitted, /s/ BEN A. SCHATZ BEN A. SCHATZ KERRY BURNS DANIELLE CHATTIN CAHILL GORDON & REINDEL LLP SEYMOUR W. JAMES, JR. ANDREW C. FINE DAVID CROW THE LEGAL AID SOCIETY Attorneys for Defendant-Appellant Curtis Basile