The People, Respondent,v.Curtis Basile, Appellant.BriefN.Y.June 2, 2015Queens County Clerk's Index No. 2007QN068755 APL-2014-00028 QCourt of ~ppeal~ STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- CURTIS BASILE, Defendant-Appellant. AMICUS CURIAE BRIEF OF ANIMAL LEGAL DEFENSE FUND AND ASSOCIATION OF PROSECUTING ATTORNEYS Date Completed: April 21 , 2015 4 Virginia F. Coleman NY Registration No. 4230900 2 Berk·eley Place Cambridge, Massachusetts 02138 T: (617) 547-4921 F: (503) 231 -1578 vfloodcoleman@gmail.com Attorney for Proposed Amici Curiae STATEOFNEWYORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- CURTIS BASILE, Defendant-Appellant. Queens County Case No. 068755 ---------------------------------X CORPORATE DISCLOSURE STATEMENT OF ANIMAL LEGAL DEFENSE FUND Pursuant to Section 500.1 (f) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Animal Legal Defense Fund ("ALDF') certifies that ALDF is a national50l(c)(3) nonprofit organization and that ALDF has no p~repf, sppsid~ary, or affiliate organizations. Dated: April 21, 2015 5 ~E&1~ Virg1 a F. Coleman NY Registration No. 4230900 2 Berkeley Place Cambridge, Massachusetts 02138 T: (617) 547-4921 F: (503) 231-1578 vfloodcoleman@ gmail.com Attorney for Proposed Amici Curiae Attorney for Proposed Amicus Curiae Animal Legal Defense Fund: Lora Dunn ANIMAL LEGAL DEFENSE FUND 919 Southwest Taylor, 4 th Floor Portland, Oregon 97205 T: (503) 231-1602 x307 F: (503) 231-1578 ldunn@aldf.org 6 STATE OF NEW YORK COURT OF APPEALS --------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- CURTIS BASILE, Defendant-Appellant. Queens County Case No. 068755 ________________________________ x CORPORATE DISCLOSURE STATEMENT OF ASSOCIATION OF PROSECUTING ATTORNEYS Pursuant to Section 500.1(t) ofthe Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Association of Prosecuting Attorneys ("APA") certifies that APA is a national 501(c)(3) nonprofit organization and that AP A has no parent, subsidiary, or affiliate organizations. Dated: April 21, 2015 7 49225505_3 ,u - -- Virg· F. Coleman NY Re istration No. 4230900 2 Berkeley Place Cambridge, Massachusetts 02138 T: (617) 547-4921 F: (503) 231-1578 vfloodcoleman@gmail.com Attorney for Proposed Amici Curiae TABLE OF CONTENTS TABLE OF AUTHORITIES ........ ...... .. .... .. ... ...... .... ............ ...... ...... ....... ... 9 INTEREST OF AMICI CURIAE .................................. .............................. 10 STATEMENT OF FACTS ........................................................................ 12 ARGUMENT ............................................................................................ 12 A. ANY ERROR IN THE TRIAL JUDGE'S CHARGE AS TO THE DEFINITION OF "UNJUSTIFIABLY" WAS IRRELEVANT BECAUSE "UNJUSTIFIABLY" IS NOT A PREDICATE TO THE OFFENSE OF "DEPRIV[ING] ANY ANIMAL OF NECESSARY SUSTENANCE" AND THE JURY'S VERDICT NECESSARILY INVOLVED SUCH A FINDING ..................................................... 14 B. EVEN IF THE CONCEPT OF "UNJUSTIFIABLY" WERE RELEVANT, THE DEFENDANT'S CONDUCT WOULD NOT HAVE BEEN JUSTIFIABLE UNDER THE DEFINITION OF THE TERM PUT FORTH BY THE DEFEND ANT ................................. 18 C. CASE LAW IN OTHER JURISDICTIONS IS DEVOID OF AN INSTANCE IN WHICH FINANCIAL HARDSHIP HAS SUCCESSFULLY BEEN USED AS A DEFENSE AGAINST A CHARGE OF UNJUSTIFIABLY INJURING OR TORTURING AN ANIMAL AND THUS OFFERS PERSUASIVE AUTHORITY THAT FINANCIAL HARDSHIP SUCH AS ALLEGED IN THIS CASE CANNOT BE A JUSTIFIABLE BASIS FOR SUBJECTING AN ANIMAL TO PROLONGED AND SEVERE HUNGER .......... 22 CONCLUSION ...... ...... .......... ...... ... ... .. .... .. ............. ............ ...... ...... .. .... .. .. 28 8 TABLE OF AUTHORITIES Cases People ex rei. Freel v. Downs, 136 N.Y.S. 440 (N.Y. City Ct 1911) ..................... 16 People v. Arcidicono, 79 Misc. 2d 242 (Sup. Ct App. Term 1974) ........... ............. 12 People v. Arroyo, 3 Misc. 3d 668 (Crim. Ct, Kings Cnty 2004) .................. .... 13, 16 People v. Basile, 40 Misc. 3d 44 (Sup. Ct App. Term 2013) ..................... ........ .... 12 People v. Mahoney, 9 f\1isc. 3d 101 (App. Term 91h and 1 01h Jud. Dist. 2005), lv. den. 5 N.Y.3d 854 (2005) ..................................................................... ............. 18 *People v. Morin, 41 Misc. 3d 1230(A), 2013 N.Y. Slip Op. 51936(U) (Crim. Ct, N.Y. Cnty 2013) ........... ..................................................................................... 18 People v. O'Rourke, 83 Misc. 2d 175 (Crirn. Ct, N.Y. Cnty 1975) ........................ 16 *People v. Richardson (Mary), 15 Misc. 3d 138(A), 2007 N.Y. Slip Op. 50933(U) (Sup. Ct App. Term 2007), rev'd on other grounds, 21 Misc. 3d 138(A) (2008) .................................. ..... .............................................. ........................ ......... .... 12 People v. Rogers, 183 Misc. 2d 538 (Watertown City Ct 2000) ............ ...... .......... 16 People v. Sitars, 12 Misc. 3d 928 (Schoharie Cnty Ct 2006) .................. ........ ........ 16 People v. Voelker, 172 Misc. 2d 564 (Crirn. Ct, Kings Cnty 1997) ........................ 16 *People v. Walsh, 19 Misc. 3d 1105(A), 2008 N.Y. Slip Op. 50556(U) (Crirn. Ct, N.Y. Cnty 2008) .. ...... ..... .......................... ........ ............ ............. ........................ 18 Statutes Agric. & Mkt. Law§ 350 ....................................................................................... 13 Agric. &Mkt. Law§ 353 ....................... .......... ..................................... 9, 11 , 13, 14 Penal Law§ 35.05 ................................................................................................ 16 Other Authorities Martinez v. State, 48 S.W.3d 273, 277 (Tex. App. 2001) ........................... 19, 20, 21 Norton v. State, 307 Ark. 336 (1991) ........... ...... .................................... ........ .. 23, 24 State v. Criswell, 370 l'vlont. 511 (2013) ............... ............ ......................... ........ .... 23 State v. Dresbach, 122 Ohio App. 3d 647 (Oh. App. Ct lOth Dist. 1997) ....... ........ 22 *State v. Peters, 2002 Ohio 6094 (Oh. App. Ct ih Dist. 2002) ................ ............. 21 *Unpublished Decisions. included in Brief Filing pursuant to 22 NYCRR Part 500.l(h). 9 INTEREST OF AMICI CURIAE Animal Legal Defense Fund Founded in 1979, the Animal Legal Defense Fund ("ALDF") is a national nonprofit organization of attorneys specializing in the protection of animals and working to ensure the enforcement of animal protection laws throughout the United States. Toward this end, the ALDF's Criminal Justice Program provides free prosecution assistance in animal cruelty and neglect cases nationwide, both independently and in partnership with the Association of Prosecuting Attorneys. ALDF staff attorneys work out of offices in five states, including New York, helped by over I ,000 volunteer attorneys nationwide who are ALDF members and who work on a pro bono basis. Total contributing membership of the ALDF is over 100,000. The ALDF, with the depth of its expertise in cases of animal cruelty and neglect, is uniquely able to assist the Court in deciding the issue presented by the instant case. Association of Prosecuting Attorneys The Association of Prosecuting Attorneys (" AP A") was founded as a national organization to represent all prosecutors and to further the prevention of crime and the attainment of equal justice and community safety. The APA's board of directors includes current and former prosecutors from states throughout the nation. As such, the AP A acts as a forum for the exchange of ideas, which allows 10 prosecutors to collaborate with each other, along with other criminal justice partners. The AP A also serves as an advocate for prosecutors on emerging issues related to the administration of justice, including the submission of briefs as amicus curiae in appropriate cases. The APA is specifically concerned with animal neglect: in 2013, the AP A adopted its "Animal Cruelty and Fighting Statement of Principles," stating that "animals are sentient beings with the undeniable capacity to suffer pain" and that "animal cruelty, both active and passive, is a crime ofviolence." 11 STATEMENT OF FACTS The amici adopt the statement of facts as presented in the Brief for the State filed on November 26, 2014 ("State's App. Brief'), at pages 12 to 25. ARGUMENT This brief deals with the second issue raised by the defendant in this appeal: whether the trial judge's charge to the jury as to the meaning of the term "unjustifiable" in the animal cruelty statute (Agric. & Mkt. Law § 353) was reversible error. It was not. Any definitional error, if there was one, was irrelevant for two reasons. First, the offense for which the defendant was convicted, failure to provide necessary sustenance to the dog Levy, did not require that the defendant's conduct be shown to be unjustifiable. Even if the jury concluded that the dog was subjected to unjustifiable injury or torture within the meaning of§ 353, the sole basis upon which this conclusion could have been reached was the defendant's failure to provide sustenance, and that finding was in and of itself sufficient to require conviction. Secondly, the fmancial hardship offered by the defendant as his sole defense for subjecting the dog to hunger to the brink of starvation fails to pass muster as justifiable even under the meaning proposed by the defendant. Whatever may be the norm in the third world, in this country and certainly in this State anyone who 12 chooses to take on ownership of a companion animal necessarily, by reason of the very fact of ownership, becomes responsible for the welfare of that animal. This responsibility cannot be put aside when times are tough. Es[pecially in New York City, where the defendant lived, there are resources readily available to an individual truly without the means to care adequately for a companion animal. 1 Assuming as the defendant alleged that he was indeed unable financially to provide a minimally sustainable diet for his dog, it was not reasonable, right, defensible, unavoidable or excusable for him not to avail himself of these resources and instead to prolong the dog's suffering to the point that had the dog not been rescued he most likely would have died of starvation. The proposition that fmancial hardship is a justifiable or reasonable basis for neglect of an animal appears to be a so-mewhat novel position in this State, but such a proposition has been put forth in other states in which applicable law required a showing that the defendant acted unjustifiably or unreasonably. Such a defense has uniformly been unsuccessful, including in at least one case with compellingly sympathetic facts for the defendant. Although not binding on this Court, these cases are instructive as to how the term "unjustifiable," assuming it is 1 In addition to the ASPCA, which ultimately took Levy in and restored him to health, there are several other rescue organizations in the New York City area that accept owner-surrendered pets. These include the Humane Society ofNew York (http://www.humanesocietyny.org/), Animal Haven (http://www.animalhavenshelter.org/s ite/PageServer), Bide A Wee (http://www.bideawee.org/), North Shore Animal League (http://www.animalleague.org/), and Might Mutts (www.mightymutts.org/). 13 relevant, should be interpreted in this case: that the defendant's feeding chicken bones and other human food waste to his dog in lieu of what the dog required to live, and his half-hearted, ineffectual inquiries about giving the dog away or surrendering him, in no way made justifiable the defendant's retaining the dog and subjecting him to prolonged and almost fatal hunger. A. ANY ERROR IN THE TRIAL JUDGE'S CHARGE AS TO THE DEFINITION OF "UNJUSTIFIABLY" WAS IRRELEVANT BECAUSE "UNJUSTIFIABLY" IS NOT A PREDICATE TO THE OFFENSE OF "DEPRIV[ING] ANY ANIMAL OF NECESSARY SUSTENANCE" AND THE JURY'S VERDICT NECESSARILY INVOLVED SUCH A FINDING The conduct of the defendant which gave rise to the seizure of the dog Levy and the defendant's subsequent arrest and prosecution under Agric. & Mkt. Law § 353 was that he failed to feed the dog at a sustainable level. By the time the dog was seized, the veterinarian who examined him scored him a "one," the lowest possible score for a still living animal, and testified at trial that the dog was "one step away from being dead." (Proceedings: A 158.)2 This conduct fell squarely under§ 353 's proscription of"depriv[ing] any animal of necessary sustenance, food, or drink .... " It is clear from the trial record, as pointed out by the State in its brief,3 that this was the legal basis for the prosecution's case, and it was so understood by the defense. The sole defense offered at trial- that the defendant 2 Numbers preceded by "A" refer to the Defendant-Appellant's Appendix. 3 See State's App. Brief at 28, n. 8. 14 could not afford dog food and so fed Levy scraps from his own food-was an attempt to justify his depriving Levy of sustenance; it was irrelevant to separate indicia of neglect which came out at the trial: bites on the dog's ears from exposure to the elements that resulted in open sores, flea infestation, overgrown toenails from lack of exercise, and borderline dehydration. It is thus unquestionable that the offense for which the defendant was convicted was that which was presented and argued to the jury, and unsuccessfully defended by the defendant: that in allowing the dog to become emaciated for lack of food, the defendant had deprived the dog of necessary sustenance. As the appellate court below correctly held (People v. Basile, 40 Misc. 3d 44, 46 (Sup. Ct App. Term 2013)), this offense contains no qualification that the act must be performed "unjustifiably." See also People v. Richardson ~Wary), 15 Misc. 3d 138(A), 2007 N.Y. Slip Op. 50933(U) (Sup. Ct App. Term 2007), rev'd on other grounds, 21 Misc. 3d 138(A) (2008) (Failure to provide sustenance is shown "upon proof that a defendant was entrusted with care of an animal and is cognizant of the fact that the animal was not being provided with necessary sustenance, food or drink."); People v. Arcidicono, 79 Misc. 2d 242 (Sup. Ct App. Term 1974) ("It was clearly established that defendant [custodian non-owner, who fed a horse per owner's instructions even though he knew diet supplied was inadequate] was in charge of feeding the gelding for three months prior to its demise, that he was 15 aware of its loss of weight, and that he gave it back to its owners in such a state of malnutrition that it was mercifully destroyed."). Grammatically the statute cannot be read to impose such a requirement.4 In addition, there are sound policy reasons for the legislature to impose an "unjustifiably" requirement on offenses involving the active infliction of bodily harm to an animal, but not on depriving an animal of necessary sustenance. As was noted in People v. Arroyo, 3 Misc. 3d 668, 676 (Crim. Ct, Kings Cnty 2004), a number of entirely legal activities involve the infliction of harm to an animal- hunting, slaughtering for food or fur, medical research, and defense of oneself or others against a vicious animal come readily to mind. However, there is nothing analogous to these activities that excus.es starving a companion animal which is utterly dependent on its owner or custodian for food. Thus the legislature rightly determined that the offense of depriving of necessary sustenance calls for no "unjustifiably" qualification; the act is per se unjustifiable. The defendant appears not to argue to the contrary. Rather, the basis for his claim that the concept of "unjustifiably" has some relevance to this case is that "the 4 § 353 reads in relevant part: "A person who overdrives, tortures, or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal ... or deprives any animal of necessary sustenance . . . is guilty of a class A misdemeanor .... " (Emphasis supplied.) The word "unjustifiably" modifies "injures, maims, mutilates or kills any animal." In order for "unjustifiably" to modify also "deprives any animal of necessary sustenance," the word would need to be repeated after the last "or." It is not. The word "'unjustifiable" is separately incorporated into the concepts of"torture" and "cruelty" through the statutory definitions of those terms found in Agric. & Mkt. Law § 350, but those likewise have no bearing on the separate offense of depriving of sustenance. 16 trial court's instruction also allowed the jury to convict ... if it found that Mr. Basile 'unjustifiably injured the dog,"' and the jury could have convicted on this basis rather than on failure to provide necessary sustenance. (Defendant- Appellant's Brief, filed June 6, 2014 ('4Def. 's App. Brief'), at 41.) It is true that the trial judge's charge was broader than required by the facts of the case. After reciting almost the entirety of§ 353, and defming "animal," "torture or cruelty," "permit," and "unjustified," he stated that in order to convict the jury must find the following "element": "That . . . the defendant ... tortured, or unjustifiably injured any animal, ... or deprived any animal of necessary sustenance, food or drink, or caused, or permitted any animal to be tortured, or unjustifiably injured, or to be deprived of necessary food or drink, or instigated, engaged in, or in any way further [sic] any act of cruelty to any animal." (Proceedings: A 238.) If the jury found that the People had proved this "element," the trial judge went on in his charge, "you must find the defendant guilty of torturing and injuring an animal; failure to provide proper sustenance in the only count." (!d.) If, on the other hand, the jury found that this element had not been proved, "you must fmd the defendant not guilty of torturing, injuring animal; and failure to provide proper sustenance as charged in the only count." (!d.) Theoretically, then, this charge, read as broadly as possible, permitted the jury to find guilt lbased on the defendant's torturing Levy, unjustifiably injuring Levy, permitting Levy to be tortured or unjustifiably injured, or instigating, 17 engaging in, or furthering an act of cruelty on Levy. However, even in the exceedingly unlikely event that the jury focused on any of these offenses and ignored the offense of depriving of necessary sustenance, despite the trial judge's referring twice to this offense in his conclusion, in finding that the defendant had injured or tortured the dog within the meaning of the statute the jury of necessity, implicitly if somehow not consciously, had to find that the defendant had deprived Levy of necessary sustenance because failure to feed was the heart of the case. That was the sole conduct that could be characterized as injury or torture that was presented to the jury. The defendant did not kick or beat Levy or actively harm him in any way. Rather he allowed the dog to endure severe and prolonged hunger on his watch.5 Allowing a dog to approach starvation is by definition "depriv[ing] of necessary sustenance," an offense for which there is no "unjustifiably" qualification. Whether it is also torturing or unjustifiably injuring the dog within the meaning of§ 353 is irrelevant, as is whether the jury so found. B. EVEN IF THE CONCEPT OF "UNJUSTIFIABLY" WERE RELEVANT, THE DEFENDANT'S CONDUCT WOULD NOT HAVE BEEN JUSTIFIABLE UNDER THE DEFINITION OF THE TERM PUT FORTH BY THE DEFENDANT 5 No argument was made that the other indicia of failure to provide care which came out at trial-failure to exercise, failure to provide shelter, and indifference to hydration-by themselves gave rise to criminal culpability. These facts were relevant rather as showing an overall pattern ofneglect independent ofthe defendant's financial resources, thus undercutting the defendant's argument that he had done the best he could in the circumstances. 18 The defendant, relying on Arroyo, 3 Misc. 3d at 678, argues that "unjustifiable" as used in§ 353 means "what is not reasonable, defensible, right, unavoidable or excusable," and that the jury could have found the defendant's conduct justifiable under that standard. As the State points out in its brief (see State's App. Brief at 66-70), the defendant, having asked for the very definition of the term that the trial judge gave, and not having objected to it at the time, cannot be heard now to complain on this score. Even if the issue could be properly raised at this time, however, and the meaning of"unjustifiably" were relevant, and one were to accept the definition now proposed by the defendant,6 no reasonable jury could have found that the fmancial hardship put forward by the defendant as his sole defense was a reasonable, defensible, right, unavoidable or excusable ground for letting Levy go hungry to the point of starvation. 6 Contrary to the defendant's statement that there is a "general consensus" as to the meaning of ''unjustifiable" under § 353 (Def. 's App. Brief at 38), the cases cited by the defendant in connection with this proposition reveal no such thing. People v. Voelker, decided by the same court which later decided Arroyo, in fact supports the definjtion contained in the judge's charge. 172 Misc. 2d 564, 568 (Crim. Ct, Kings Cnty 1997) ("It is clear that the justification for killing or torturing the animals must be of the type necessary to preserve the safety of property or to overcome danger or injury to the property, or the type of legal justification specifically authorized by statute (See Penal Law§ 35.05-.)."). In the same vein, People ex rel. Freel v. Downs, an early case relied on by the Voelker court, speaks of what is justifiable pain and suffering as that which is "temporary, unavoidable without criminal intent, and necessary to preserve the safety of the property involved and to overcome any danger or injury to such property." 136 N.Y.S. 440, 444 (N.Y. City Ct 19 11) (emphasis supplied). By comparison, People v. Rogers, 183 Misc. 2d 538, 540 (Watertown City Ct 2000) states that what is "unjustified" under § 353 is intended "to set a verbal boundary between acceptable infliction of physical pain, suffering or death and/or the maiming or mutilation of an animal and when a person's conduct exceeds such boundary." People v. O 'Rourke, 83 Misc. 2d 175 (Crim. Ct, N.Y. Cnty 1975), and People v. Sitars, 12 Misc. 3d 928 (Schoharie Cnty Ct 2006), contain no discussion ofthe meaning ofthe term. 19 Acquiring a companion animal is a voluntary act, to which responsibilities attach. The most fundamental of these is to provide the animal with sustenance; without food and water an otherwise perfectly healthy animal will die a slow and horrible death. Providing sustenance is not optional. If for financial or any other reasons an owner cannot do so, to allow the animal to starve is contrary to the social and moral standards ofbehavior that are accepted in this State and throughout this country: letting the animal go hungry over a prolonged period of time, to the point of starvation, is not reasonable, defensible, right, unavoidable or excusable. The obligation of an owner who cannot adequately provide food for a companion animal is rather to give the animal up to someone who can or to one of the many shelters available for this precise purpose.7 Even if the animal is eventually euthanized it will have met a far kinder fate than the starvation that Levy faced in this case. The defendant's conduct was grossly inadequate by any standard. Not surprisingly, given the lack of an "unjustifiably" qualification in§ 353 for the offense of failing to provide necessary sustenance, we have been unable to locate any reported case in New York involving this offense in which the term has been raised or its meaning discussed-a fact which highlights the irrelevance of the concept in this case. In addition, the particular defense raised here, that of 7 In this case in particular, the ASPCA, or any of the other organizations listed at note 1 above, could have been availed ofmonths earlier. 20 financial hardship, appears to have been little used in other prosecutions under§ 353; we have found it noted in just two cases, both involving the denial of medical care as part of an overall pattern of neglect, which were prosecuted as involving unjustifiable injury, torture or cruelty.8 See People v. Morin, 41 Misc. 3d 1230(A), 2013 N.Y. Slip Op. 51936(U) (Crim. Ct, N.Y. Cnty 2013); People v. Walsh, 19 Misc. 3d 1105(A), 2008 N.Y. Slip Op. 50556(U) (Crim. Ct, N.Y. Cnty 2008). Although both Morin and Walsh are decisions on pretrial issues rather than on the merits, it is telling that in each the trial judge gave short shrift to fmancial hardship as a potential justification for the suffering endured by the animal, in Morin noting that "defendant proffered no moral or philosophical explanation for his failure to provide medical care to [the dog], but simply said he could not afford to take her to the veterinarian," and in Walsh noting that "[i]fthe defendant was unable to care further for the animal, for financial or any other reason, he could have surrendered the animal to the Society for the Prevention of Cruelty to Animals .... " Morin, 41 Misc. 3d at *4; Walsh, 19 Misc. 3d at *4. 8 There is a disagreement among the lower courts in New York as to whether the term "sustenance" as used in§ 353 includes the provision of medical care. Compare People v. Arroyo, supra, holding it does not, and People v. Mahoney, 9 Misc. 3d 101 (App. Term 91h and lOth Jud. Dist. 2005), lv. den. 5 N.Y.3d 854 (2005), ho lding that it does. 21 C. CASE LAW IN OTHER JURISDICTIONS IS DEVOID OF AN INSTANCE IN WHICH FINANCIAL HARDSHIP HAS SUCCESSFULLY BEEN USED AS A DEFENSE AGAINST A CHARGE OF UNJUSTIFIABLY INJURING OR TORTURING AN ANIMAL AND THUS OFFERS PERSUASIVE AUTHORITY THAT FINANCIAL HARDSHIP SUCH AS ALLEGED IN THIS CASE CANNOT BE A JUSTIFIABLE BASIS FOR SUBJECTING AN ANIMAL TO PROLONGED AND SEVERE HUNGER Given the scant authority in New York on the availability of financial hardship as a defense against neglect of an animal giving rise to prolonged suffering, it is useful to look at how this defense has fared in other states in which "unjustifiable" or similar conduct must be shown. The results of such a review are stark: there appear to be no reported cases in which such a defense has been successful. Although not binding on this Court, these cases strongly suggest a consensus that financial hardship is not a justifiable basis for subjecting an animal to needless suffering, whether by failing to provide medical treatment for a readily treatable disease or failing to comply with minimal standards of care. We cannot conceive of a reason why fmancial hardship should be treated as a justifiable basis for needless suffering arising from hunger. The most striking example of the futility of this defense is Martinez v. State, in which the Texas Court of Appeals affirmed the defendant's conviction for failure to properly care for a dog with a severe skin condition (parasitic sarcoptic mange) as a matter in which the jury had no choice, despite facts "offer[ing] compelling mitigation" and the expressed view of a concurring justice that as a 22 matter ofprosecutorial discretion the case should not have been brought. 48 S.W.3d 273, 277 (Tex. App. 2001). The defendant was an 83-year-old woman living on Social Security of $400/month who rescued and cared for stray dogs. She was charged with "intentionally and knowingly 'failing unreasonably to provide necessary food, care, or shelter for an animal in [her] custody. ' See Tex. Pen. Code Ann. § 42.09(a)(2) (Vernon Supp. 2000)." !d. at 276. All her dogs were well cared for except the one infected dog, which the defendant had tried to treat herself; the dog was too big for her to put in a car and she had been unable to find help to take the dog to a veterinarian. The defendant knew the dog was not well but thought he would recover because he continued to eat and run. 9 Despite this array of mitigating facts, the Court of Appeals held: "The jury, faced with the evidence discussed above, had no choice but to find Martinez [the defendant] guilty. She should not have accepted the dog or kept it without treatment for so long .... Failure to provide necessary care is cruelty to animals and a criminal offense, even though the record in this case reveals neglect arising out of a lack of resources rather than outright cruelty." !d. at 2 77, n.l. As for the statutory requirement that the defendant's conduct be "unreasonable," a term similar to "unjustifiable" as the defendant would define it in this case, the Appeals Court stated: 9 The dog was in fact euthanized after he was taken by animal control and examined by a veterinarian. 23 "The evidence demonstrates that an animal in Martinez's custody did not receive the medical treatment it needed to survive. The decision to euthanize the animal upon its arrival at the shelter shows the unreasonableness of failing to treat the animal." ld. 10 Similarly in this case, the evidence demonstrates that Levy, an animal in the defendant's custody, did not receive the food he needed to survive. The fact that Levy was fortunate enough to be rescued while he could still be brought back to health through the simple remedy of food and water in no way lessens the unreasonableness of the defendant's conduct and indeed underscores the defendant's failure to provide necessary sustenance. The Ohio Court of Appeals, in State v. Peters, 2002 Ohio 6094 (Oh. App. Ct ih Dist. 2002), like the Texas Court of Appeals, rejected fmancial hardship as a justification for failure to provide necessary medical treatment for a dog. In Peters, the dog, named Noah, died of heartworm, having never been taken to a veterinarian. !d. at~ 29. The defendant was convicted of"torturing" the dog, which under applicable law (Ohio R.C. 170l.Ol(B)) was defined as "an act by which unnecessary or unjustifiable suffering is caused, permitted, or allowed to continue." !d. The defendant testified that she could not afford veterinary care and 10 The Appeals Court also found that the jury could properly have inferred the statutory intent requirement: "Here, the evidence indicates obvious and severe illness, and a long-neglected need for treatment." 48 SW3d at 276. 24 that euthanasia was prohibitively expensive. 11 The Court of Appeals affirmed the defendant's conviction, holding in particular that her actions were unjustifiable: "Animal cruelty does not consist solely of active cruelty, but also includes passive cruelty or neglect. Such is the case before us. Appellant's actions, or lack thereof, were unjustifiable .. .. Appellant may not have had the finances to provide Noah with the best veterinary care available. However, when she decided to own a dog she acquired certain responsibilities, one of which was to see to it that the dog did not suffer unnecessarily due to her needless indifference for his health. Clearly, appellant's omissions and/or neglect caused Noah unnecessary or unjustifiable pain and/or suffering, which she allowed to continue when there were several reasonable remedies she could have pursued.~' !d. at~ 30 (internal citation omitted). So also in this case, as noted above, the defendant's most fundamental responsibility as a dog owner was to provide necessary sustenance to Levy so that he would not starve, thus suffering unnecessarily. The defendant's failure to do so was unjustifiable. 12 In State v. Criswell, the Supreme Court of Montana held that the evidence supported a finding that the defendants, appealing their conviction for aggravated 11 The Court of Appeals noted in its opinion that the local animal shelter would have euthanized the dog for $3.50. !d. at~ 29. 12 An earlier decision ofthe Ohio Court of Appeals on an appeal of a conviction under the same statute for failure to obtain treatment for a dog with hookworm contains strikingly similar language about the responsibilities a dog owner necessarily undertakes, although a defense of fmancial hardshiP, was not specifically raised. State v. Dresbach, 122 Ohio App. 3d 647, 653 (Oh. App. Ct 1011 Dist. 1997) ("This dog was emaciated and obviously sick. While defendant's initial intentions towards this dog appeared charitable, given the circumstances in which he acquired the dog [he took on care of the dog after the owner was arrested in a drug raid], having undertaken the responsibility for this dog's care, defendant was required by law to make reasonable efforts to prevent the dog from suffering needlessly due to a readily curable condition."). Severe hunger gives rise to every bit as much suffering as disease, and is the ultimate readily curable condition. 25 animal cruelty, acted "without justification" as required by the applicable statute, in their failure to provide basic care for over 100 cats, despite their lack .of funds. 370 Mont. 511 (2013) (discussing Mont. Code Ann.§ 45-8-211(1)(b), (l)(c)(i)). The defendants' predicament, the Supreme Court noted, was of their own making: "[T]he [Defendants, the Criswells] knew of the problems that can (and ultimately did) result from attempting to house and care for a large number of cats without adequate funding and facilities. The Criswells knew that confining multiple cats together in cramped quarters, and failing to provide them with proper food, water, and sanitation, stresses the cats and leads to medical issues. Yet, despite this knowledge, and despite their lack of money and food, the Criswells chose to confine over 100 cats together in two camper trailers, which were wholly inadequate to house this number of cats .... The unsanitary conditions of the trailers and the illnesses of the cats inside existed for weeks, perhaps even months, before the cats were rescued. Throughout this period, resources were available to help the Criswells and their cats .... " !d. at~ 38. This is not nearly so extreme a case. Nonetheless, there are similarities. The defendant had to have known that failure to feed Levy adequately for an extended period of time would lead to the dog's suffering and eventual death. He chose to do it anyway rather than avail himself of available resources. Finally, the Arkansas Supreme Court has rejected financial hardship as a defense to failure to provide minimally adequate care and sustenance for multiple animals. Norton v. State, 307 Ark. 336 (1991) (applying statute to goats and rabbits). The defendant appealed her conviction under Ark. Code§ 5-62-101 (1987) for "knowingly . . . subject[ing] any animal to cruel neglect" where the 26 then-applicable statute defmed "cruelty" as "every act, omission, or neglect in which unjustifiable physical pain, suffering or death is caused or permitted."13 Id. at 338-39. The defendant's "financial inability to care for [the animals]" was raised (and rejected) as a defense to the "knowingly" intent requirement of the statute. ld. at 339 ("The evidence was sufficient to show Ms. Norton must have been aware that she allowed the animals to reach a deplorable condition."). The defendant's financial circumstances were implicitly deemed by both the court and the defendant to be irrelevant to the existence of cruel neglect, i.e. causing unjustifiable pain or suffering. On that point the court simply recounted the testimony presented and photographs submitted, which showed cruel neglect "obviously displayed." ld. As in Norton, where the condition of the animals alone established that the animals had been subjected to unjustifiable pain or suffering, here, Levy's emaciated condition, coupled with other obvious indicia of neglect, establish that the defendant's conduct could not have been justifiable within the meaning argued by the defendant. 13 The applicable statute in Norton, Ark. Code § 5-62-1 1 0( a)(2) ( 1987), was repealed in 2009 (2009 Ark. ALS 33). The Arkansas animal cruelty statute is now found in Ark. Code§ 5-62- 103, which speaks of"cruel mistreatment," and "cruel mistreatment" is defmed in§ 5-62-102(8) in terms similar to those formerly found in § 5-62-11 0( a)(2). 27 CONCLUSION For the reasons stated above, the defendant's conviction should be affirmed. 28 49225505_3 Respectfully submitted, Vir ia F. Co~eman NY egistration No. 4230900 2 Berkeley Place Cambridge, Massachusetts 0213 8 T: (617) 547-4921 F: (503) 231- 1578 vfloodcoleman@gmail.com Attorney for Proposed Amici Curiae UNPUBLISHED CASES CITED IN BRIEF People v. Morin, 41 Misc. 3d 1230(A), 2013 N.Y. Slip Op. 51936(U) (Crim. Ct, N.Y. Cnty 2013) People v. Richardson (Mary), 15 Misc. 3d 138(A), 2007 N.Y. Slip Op. 50933(U) (Sup. Ct App. Term 2007), rev'd on other grounds, 21 Misc. 3d 138(A) (2008) People v. Walsh, 19 Misc. 3d 1105(A), 2008 N.Y. Slip Op. 50556(U) (Crim. Ct, N.Y. Cnty 2008) State v. Peters, 2002 Ohio 6094 (Oh. App. Ct 7th Dist. 2002) People v. Morin, 41 Misc.3d 1230(A) (2013) 981 N.Y.S.2d 637,2013 N.Y. Slip Op. 51936(U) Unreported Disposition 41 Misc.3d 1230(A), 981 N.Y.S.2d 637 (Table), 2013 WL 6170881 (N.Y. City Crim.Ct.), 2013 N.Y. Slip Op. 51936(U) This opinion is uncorrected and will not be published in the printed Official Reports. The People of the State of New York, Plaintiff, Animals V. Peter Morin, Defendant. 20 13NY 024503 Criminal Court of the City of New York, New York County Decided on November 6, 2013 CITE TITLE AS: People v Morin ABSTRACT Cruelty to Animals Definition of"cruelty" under Ag1iculture and Market Law§ 353 includes fai lure to prov:ide medical care that results in unjustifiable pain and suffering. Constitutiornal Law Validity of Statute Vagueness of Agriculture and Markets Law§ 353 People v Morin (PeteJ~, 2013 NY Slip Op 51936(U). Animals--Cruelty to Animals- Definition of"cmelty" under Agriculture and Market Law§ 353 includes failure to provide medical care that results in unjustifiable pain and suffering. Constitutiornal Law-Validity of Statute-Vagueness of Agriculture and Markets Law§ 353. Agriculture and Markets Law-§ 353 (Overdriving, torturing and injuring animals; failme to provide proper susteoance). (Crim Ct, NY County, Nov. 6, 2013, Scherzer, J.) OPINION OF THE COURT Ann E. Scherzer, J. Defendant is charged with violating Agricultural and Mat·ket Law (AML) § 353, based on allegations that he deprived his pet dog Tinkerbell, a black Shih Tzu, of medical treatment for various illnesses, thereby causing her to suffer. Defendant moves to dismiss the information on three separate grounds. First, defendant claims the information is facially insufficient. Second, he contends that the statute, as applied to the facts of his case, is void for vagueness, and thereby violates hjs Federal and State Due Process rights. Finally, defendant seeks dismissal in the interest of justice. Uporn review of the facts, the moving papers and attachments submitted by both parties as well as the relevant statutes and caselaw, the defendant's motion is DENIED in its entirety, for the reasons stated below. 1 FACTUAL BACKGROUND The accusatory instrument in this case consists of a criminal coUJt complaint signed by Deborah Ryan, a Special Agent with the American Society for the Prevention of Cruelty to Animals (ASPCA). which was later conve11ed to an information by way of a supp011ing deposition from Dr. Robe11 Reisman. In the complaint, Ryan states that on December 17, 2012, she responded to a call from Canine Styles, a dog grooming shop located at 2231 Broadway in Manhattan, reporting a dog that was suffering from severe matting and overgrown nails. Upon an·ival at Canine Styles, Ryan observed Tinkerbell, "suffering from severe matting and crusting *2 around the eyes, ears and anus. Ryan a lso observed that the dog's nails were overgrown, the dog was very thin and that a strong smell of urine and feces emanated from the dog." Ryan spoke to the defendant who confirmed that he is Tinkerbell's owner, and told Ryan that he has not brought Tinkerbell to a veterinarian or a ~:,>roomer for a year, because he lacked sufficient funds to pay for their services. Ryan brought Tinkerbell to the Bergh Memorial Animal Hospital where she was treated by Dr. Reisman, a Doctor of Vetinary Medicine and the Medical Coordinator of Animal Cruelty Cases for that institution. Dr. Reisman rep011ed to Ryan that Tinkerbe.ll suffered from "excessive matting on the head, ears, all four legs and tail; an untreated infection in the right ear; overgrown c laws; an untreated eye disease; untreated kidney disease; extreme dental disease and untreated skin disease." Based on his expe11ise, Dr. Reisman concluded that Tinkerbell "experienced distress and pain as a result of the untreated condiions as well as high blood pressure, and that signs of her painful condition ought to have been noticed by the defendant. VVestl" Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. People v. Morin, 41 Misc.3d 1230(A) (2013) 981 N.Y.S.2d 637,2013 N.Y. Slip Op. 51936(U) RELEVANT STATUTE AML § 353 states that "a person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another, or deprives any animal of 111ecessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or penn its any animal to be overdriven, overloaded, tortured, cruelly beaten, or engages in, or in any way fwthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a class A misdemeanor." "Cruelty" is defined by AML as any "act, omission, or neglect whereby unjustifiable physical pain, suffering or death is caused or permitted. Agricultural and Markets Law§ 350(1). MOTION TO DISMISS FOR FACIAL INSUFFICIENCY Defendant argues that the information is facially insufficient, and should therefore be dismissed. More specifically, he asserts that a failure to provide medical treatment or grooming to an animal is not criminalized by this statute because the only affinnative duty imposed upon pet owners is to provide "necessaty sustenance, food or drink." Defendant argues that medical h·eatment is not encompassed by the word "sustenance," which is meant to include only food and drink Therefore, absent allegations that defendant failed to provide Tinkerbell with those basics, the information is insufficient. An information, together with any supporting depositions, must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. See CPL §100.40( 1)(a)-(c). See also People v Dumas, 68 NY2d 729 ( 1986); People v Alejandro, 70 NY2d 133 ( 1988); People v Mc/Jermoll, 69 NY2d 889 (1987); People v Case, 42 NY2d 98 (1977). Reasonable cause exists when "evidence or information which appears reliable discloses facts or circumstances which .are collectively of such weight and persuasiveness as to convince a person of ordinruy intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." Crimina& Procedure Law § 70.1 0(2). The court must assume that the factual allegations ru·e true and must consider all reasonable inferences that may be drawn from the allegations in the light *3 most favorable to the People. (CP L §§ 100.40, I 00. 15; People v Alejandro, 70 NY2d 133 ( 1987); People v Henderson, 92 NY2d 677 (1999); Casey, Supra). This does not require that the accusatoty instrument state facts tbat would prove defendant's guilt beyond a reasonable doubt but rather that it contain allegations of fact that "give an accused suffic:ient notice to prepare a defense and be adequately detailed to prevent a defendant from being tried twice for the same offense" . People v Casey, 95 NY2d 354, 360, 740 NE2d 233, 236, 7 17 NYS2d 88, 9 1 (2000). Judged by these standards, the cowt fi nds this complaint to be facia lly sufficient because in addition to mandating that pet owners provide sustenance to their animals, the statute proscribes any act of cmelty toward an animal. Failw·e to provide medical care to a pet who is suffering from multiple conditions and in obvimts distress would., in this court's view, constitute cruelty as defined by the AML; an omission that causes or pennits the animal to experience physical pain or suffering. The complaint alleges that defendant failed to provide medical care to Tinkerbell for a period of one year, and that by the time she was treated by Dr. Reisman, Tinkerbell was suffering from several diseases which would cause her to exhibit signs of pain. These allegations provide sufficient suppott for the People's theoty that defendant engaged in an act of cmelty, as defined by the AML. Because the coutt finds there is reasonable cause to believe that defendant engaged in ru1 act of cruelty toward Tinkeribell in violation of AML § 353, there is no need to resolve the question of whether or not medical care is included in the statute's definition of sustenance. 2 The CoUJt finds the accusatory insttument provides adequate information to enable defendant to prepare a defense and sufficient detail to prevent him from being tt·ied twice for the same offense. Accordingly, the motion to dismiss for facial insufficiency is denied. VOID FOR VAGUENESS In an ru·gument related to and intertwined with his motion to dismiss for facial insufficiency, defendant asserts that the prohibition against cruelty to animals found in AML § 353 is constitutionally "void for vagueness"as applied to the facts alleged in tl1is complaint and that therefore, this complaint must be djsmissed. Defendant patticularly objects is to the adjective " unjustifiable" in connection with "physical pain and suffering," and he arb'ues that the statute does not make VVestl" Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 People v. Morin, 41 Misc.3d 1230(A) (2013) 981 N.Y.S.2d 637,2013 N.Y. Slip Op. 51936(U) clear what type of pain or suffering is "justifiable." In supp01t of this *4 argument, defendant relies heavily upon People v Arroyo, in which the Kings County Criminal Court found the precise language defendant attacks here to be void for vagueness. Arroyo, 3 Mise 3d 668. However, this Court finds critical factual distinctions between this case and Arroy o, which render the rationale of that case, inapplicable here. Arroyo's case began when he was on vacation and an anonymous caller rep01ted to the ASPCA that one of Arroyo's dogs had a large, bleeding tumor protruding from her stomach. The ASPCA removed AIToyo's dog from a caretaker and brought her for medical treatment. The dog underwent surgery and was diagnosed as suffering from terminal cancer. When ArToyo returned from vacation, he met with the ASPCA investigator and explained that he was aware of the fact that his dog had cancer, but had not provided medical treatment to her both because of his limited resources, and because "he was familiar with cancer because a relative had had cancer and painful chemotherapy and stated that he believed that the dog should Live out her life without intervention." Jd. at 670. Charged with violating AML § 353, Arroyo challenged the sufficiency of the complaint arguing, inter alia, that the facts could not support the allegation that his failure to provide care for his dog resulted in "unjustifiable pain." /d. A challenge for vagueness must be evaluated by a two- pronged test. " First, the statute must provi.de sufficient notice of what conduct is prohibited; second, the statute must not be written in such a manner as to permit or encourage arbitrary and discriminatory enforcement." People v Bright, 71 NY2d 376, 382. In detem1ining the sufficiency of notice under the first prong, the statute "must of necessity be examined in the light of the conduct with which the defendant is charged, not as applied to other hypothetical situations. Arroyo, 3 Mise 3d at 672 citing US v National Daily Prod.~. Corp., 372 US 29, 33 ( 1963); US v Powell, 423 US 87, 92 (1975). In considering Arroyo's challenge to AML § 353, the court was faced with a particular set of circumstances; the dog in question was suffering from terminal disease which, sad]y, creates inevitable physical pain and suffering to all afflicted beings. The question of how to treat a human let alone a canine cancer patient with no hope of long-tenn recovery is highly debatable since the treatment often causes tremendous pain during the end of life. A human facing this choice can rationally consider the pros and cons of treatment and decide if the extension of life offered is worth the expense, both in tem1s of fmancial cost and physical pain. Reasonable minds can and do differ vastly. Whether or not to treat an animal suffering from terminal cancer carries a djfferent set of considerations. An animal cannot understand any potential benefit of treatment and would only experience the pain without the salve of knowing its life might be slightly extended. One could as easily argue that providing, as witb.holding, treatment to a terminally ill dog is an act of cmelty, without a more specific definition of the term "unjustifiable." The facts in tb.is case are a far cty from those in Arroyo. Tinkerbell was not terminally ill and the treatment for her ailments was not controversia l. Indeed, defendant proffered no moral or philosophical explanation for his failure to provide medical care to Tinkerbell, but simply said he could not afford to take her to a groomer or a veterinaria11. 3 Whether dlefendant's failure to *5 provide care under these circumstances was justified, or whether he should have surrendered Tinkerbell to the ASPCA, is a factual question that must be determined at trial. People v. Walsh, 19 Mise 3d 1105(A) (Crim Ct NY Co, 2008). The Cowt rejects the assettion that the term " unjustifiable pain" applied to these facts is unconstitutionally vague and finds the allegations sufficiently demonstrate reasonable cause to believe that the omission was unjustifiable. MOTION TO DISMISS IN THE INTEREST OF JUSTlCE The CoUt1 must exercise its discretionary power to dismiss a pending cr iminal prosecution spa1ingly and only in that" rare' and unusual' case when it cries out for fundamental justice beyond tht! confines of conventional considerations'." Peuple v. Insignares, I 09 AD2d 221 , 234, lv denied 65 NY2d 928 (1985), quoting People v. Beige, 41 NY2d 60, 62-63 ( 1976), People v. Arbeiter, 169 Mise 2d 771 ( I st Dept 1996); People v HarmofT, 181 AD2d 34 ( I st Dept 1992). Defendant has not identified any facts suggesting that justice requires the cou11 to intervene and dismiss the information. instead, hjs motions show that he has a viable defense to present at trial and competent counsel to do so on his behalf. It is up to the trier of fact to determine the sufficiency of the People's evidence. Accordingly, the defendants' motion to dismiss in furtherance of justice is denied. This constitutes the decision and order of the comt. Dated: November 6, 2013 __________ _ 'Westl" Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 People v. Morin, 41 Misc.3d 1230(A) (2013) 981 N.Y.S.2d 637, 2013 N.Y. Slip Op. 51936(U) FOOTNOTES New York County, New YorkAnn E. Scherzer Judge of the Criminal Court Copr. (c) 2015, Secretary of State, State ofNew York Footnotes In addition to these arguments, defendant also objects to the use of the conjunctive "and" when designating the offense in the accusatory instrument arguing that this requires the People to make allegations showing that defendant violated the statute through every possible means. However, the People's recitation of the statute has no impact on the facial sufficiency of the information. He also argues that it is a legal impossibility to commit the charged offense at two separate addresses as noted in the information. This argument is without merit since a course of conduct crime, like the one charged, may be committed in more than one location. 2 Courts of concurrent jurisdiction have different views on this issue. See e.g. People v Walsh, 19 Mise 3d 11 05(A)(Crim Ct NY Cty, 2008) (stating that "a charge under AML § 353 for failure to provide medical care cannot be based solely on the term necessary sustenance since such care is not included in the ordinary meaning of the phrase."); People v Arroyo, 3 Mise 3d 668 (Grim Ct Kings Cty, 2004) (holding that "sustenance" does not include medical treatment within its definition); People v O'Rourke, 83 Mise 2d 175 (Crim Ct NY Cty, 1975)(holding that forcing a horse to work that has an obvious injury to its leg without providing necessary medical attention violates AML § 353.) Notably, the one appellate court that has addressed the definition of sustenance has held that it includes "the provision of veterinary care and shelter adequate to maintain health and comfort." People v Mahoney, 9 Mise 3d 101 (App Term 9th and 1Oth Jud Dists 2005). 3 Defendant incorrectly states that these cases are "almost identical" because both defendants cited financial reasons for their decision to withhold medical care (See, Defendant's Motion • paragraph 17). As described above, f inances were only one part of Arroyo's opting out of treatment his dog. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. VVestl" Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 People v Richardson, 15 Misc.3d 138(A) (2007) 841 N.Y.S.2d 221,2007 N.Y. Slip Op. 50933(U) Unreported Disposition 15 Misc.3d 138(A), 841 N.Y.S.2d 221 (Table), 2007 WL 1321128 (N.Y.Sup.App.Term), 2007 N.Y. Slip Op. 50933(U) This opinion is uncorrected and will not be published in the printed Official Reports. The People of the State of New York, Respondent, V. Harry A Richardson, Appellant. 2002-791 D CR. Supreme Court of the State of New York Appellate Term: 9th And 10th Judicial Districts Decided on May 7, 2007 CITE TITLE AS: People v Richardson ABSTRACT Appeal Records and Briefs on Appeal Reconstruction Hearing People v Richardson (Harry), 2007 NY S lip Op 50933(U). Appeal- Records and Briefs on Appeal- Reconstruction Hearing. {App Term, 2d Dept, May 7, 2007) PRESENT: RUDOLPH, P.J., LIPPMAN and OWEN, JJ Appeal from a judgment of the Justice Court of the Town of Red Hook, Dutchess County (Richard R. Griffiths, J .), rendered April 25, 2002. The judgment convicted defendant, upon a jury verdict, of 12 counts of dep•·iving an animal of necessary sustenance, food or drink. OPIN ION OF THE COURT Appeal held in abeyance and matter remanded to the Justice Court of the Town of Red Hook to conduct a reconstruction hearing to dete1mine whetiher defendant was present at sidebar and in camera conferences with prospective jurors and, if not, whether defendant voluntarily, knowingly amd intelligently waived said right and, in the event there was lilO such waiver, what transpired during the conferences. Defendant and his daughter, Mary Helen Richardson, were charged in a single accusatory instrument and, following a joint jury trial, convicted of 12 counts of violating former section 353 of the Agriculture and Markets Law in that on or about, and between, January I , 2001 and April 9, 2001 , they deprived 12 specified horses of necessary sustenance, food or drink. Defendant contends that the coutt erroneously denied his motion to set aside the verdict or conduct a hearing due to the People's failure to reveal exculpatmy information conceming the effmts made by the owner of the fatm at which the horses were kept to prohibit defendant from providing food and water to the animals. The exculpatory information, set fmth in the affidavit in suppmt of the motion, was to the effect that the affiant infmmed the People before trial that the owner stated that he had not brought an action against Hany Richardson for nonpayment of rent because it was easier to turn off the water and call the Dutchess County Society for the *2 Prevention of Cruelty to Animals. The prosecutor stated in her affirmation in opposition to the motion that she did not recall affiant having provided the infonnation to her. Post-conviction Brady claims (Brady v Maryland, 373 US 83 [ 1963]) are usually denied unless the putative exculpatmy information was "highly material to the defense" (People v Simmons, 36 NY2d 126, 132 [1975]), thereby depriving the defendant of an oppmtunity to cross-examine a witness on a trial issue, and depriving the defendant of due process (see People v Martin, 240 AD2d 5, 9 [ 1998], lv denied 92 NY2d 856 [1998]). Here, defendant was involved in a dispute with the owner and, therefore, fully aware of the owner's actions. In addition, since the owner was not called as a witness by the People, the statement could not be used for in1peachment purposes. P1ior to trial, the cowt conducted a Sandoval hearing (People v Sandoval, 34 NY2d 371 [ 1974]) at which defendant sought, inter alia, ito suppress the use of his prior conviction in New Jersey on Febmary 28,2001 of cruelty to animals, for failure to provide adequate food, water and illutrition. The court found that said conviction was admissible as it was relevant to defendant's credibility and established that defendant was knowledgeable of what should have been fed to horses. The cou1t conditioned the admission of said prior conviction UiPOn submission of proof prior to trial that the conviction was either a felony or misdemeanor and, during its charge to the jury, limited the use of said conviction to assist the jury in evaluating defendant's testimony. VVestl" Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. People v Richardson, 15 Misc.3d 138(A) (2007) 841 N.Y.S.2d 221,2007 N.Y. Slip Op. 50933(U) The nature and extent of cross-examination have always been subject to the sound discretion of the trial court (People v Sandoval, 34 NY2d at 374) . Here, the comt struck an appropriate balance between the probative value of defendant's conviction in New Jersey for cruelty to animals for impeachment purposes against the possible prejudice to defendant (see People v Doh/bender, 23 AD3d 493 [2005], lv denied 6 NY3d 832 [2006]; see also People v Myron, 28 AD3d 68 1 [2006]; People v Kinsler, 228 AD2d 452, 453 [1996], lv denied 88 NY2d 988 [ 1996]). Defendant failed to meet his burden of demonstrating that the prejudicial effect of the evidence of said conviction so outweighed the probative evidence that its exclusion was warranted (see People v Sandoval, 34 NY2d at 378; People v Springer, 13 AD3d 657 [2004], lv denied 4 NY3d 803 [2005]). The mere fact that the out-of-state conviction was similar to the charges herein, did not warrant its preclusion (see People 11 Doh/bender, 23 AD 3d 493, supra; see also People v Gray, 198 AD2d 3 [1993], affd 84 NY2d 709 [ 1995]). This is especially so, where, as here, the court limited the People's inquiry to mentioning that there was a previous conviction for cruelty to animals and the penalty imposed (see People v Smith, 217 AD2d 520 [ 1995], lv denied 87 NY2d I 025 [ 1996]). The potential prejudice to defendant was fwther mitigated by the trial COUlt's instruction to the jwy that it could only consider defendant's prior conviction in assisting it in evaluating defendant's credibility, thereby "ensuring that the jury did not employ the challenged evidence for an improper purpose" (People 11 Foster, 211 AD2d 640, 641 [ 1995], lv denied 85 NY2d 909 [ 1995]). It cannot be presumed that the jurors disregarded the trial cowt's instruction (see People v Davis, 58 NY2d 1102, 1104 [1983]). Even if it were en-or for the court to allow limited cross-examination as to said conviction, the en·or, if any, was hannless in view of the overwhelming evidence of defendant's guilt (see People v Bianchi, 34 AD3d 690 [2006]). A defendant has a fundamental right to be present at all material stages of the trial (see CPL 260.20; People v Turaine, 78 NY2d 87 1, 872 [1991]; see generally *3 People 11 Dokes, 79 NY2d 656, 659-660 [ 1992]), including the impaneling of thejmy (People v Velasco, 77 NY2d 469, 472 [1991] ; People 11 Mullen, 44 NY2d I, 4 [ 1978]). A defendant's right to be present during discussions relating to the qualifications of jurors or prospective jurors depends on the subject matter of the discussions. A defendant's right to be present is not violated where the discussions relate to juror qualifications such as physical impairment, family obligations or work commitments (see People v Camacho, 90 NY2d 558, 561 [1997]; People v Antommarchi, 80 NY2d 247, 250 [1992], rearg denied 81 NY2d 759 [1992]; People 11 Velasco, 77 NY2d at 472-473). The court may not conduct an interview that concerns a juror's background, bias or hostility, or ability to weigh the evidence objectively, unless defendant is present, as that would constitute a material stage of a trial (see People 11 Antommarchi, 80 NY2d at 250; see also People v Maher, 89 NY2d 318, 324 [ 1996]; People v Sloan, 79 NY2d 386, 392-393 [ 1992]). Although the right to be present during questioning of prospective jurors on matters of bias or prejudice may be waived by a voluntary, knowing and intelligent choice (People v Williams, 92 NY2d 993 [ 1998]; People v Vargas, 88 l\l'2d 363, 375-376 [1996]), a waiver by defendant's counsel outside of defendant's presence is ineffective (see People v Antommarchi, 80 NY2d at 250), and a waiver by defendant will not be inferred from a silent record (see People v Allen, 300 AD2d I 098 [2002] ;see also People 11 Lopez, 6 NY 3d 248, 255 [2006]; People v Callahan, 80 NY2d 273, 283 [ 1992]). Moreover, a defendant is not requiTed to object to htis exclusion in order to preserve a claim that he was denied the right to be present (see People v Antommarchi, 80 NY2d at 250; see also People v Dokes, 79 NY2d at 662; People v Mangan, 258 AD2d 819 [ 1999], tv denied 93 NY2d 927 [ 1999]). Notwithstanding the foregoing, there exists a distinction between those violations that require reversal and those that are hannless error. L1 instances where a prospective j uror is sworn as a juror, is peremptorily challenged by defense counsel, or is excused by consent of defense counsel, the violation will result in a reversal of defendant's conviction (see Peopfe v Davids·on, 89 NY2d 881, 883 [ 1996]; see also People v Allen, 300 AD2d 1098, supra). In such instances, the defendant may be deemed to have been dep1ived of the opportunity to provide valuable input regarding his attorney's decision (People 11 Davidson, 89 NY2d at 883; see People v Sloan, 79 NY2d at 392). However, where it appears from the record that a prospective juror was excused by the court based on a challenge for cause or a peremptmy challenge by the People, the violation of defendant's •·ight will be deemed harmless since any contribution by defendant would have been superfluous (see People 11 Maher, 89 NY2d at 325; see also People v Vargas, 88 NY2d at 378; People v Roman, 88 NY2d 18, 26-28 [ 1996]). VVestl" Next © 2015 Thomson Reuters. No claim to original U.S Government Works. 2 People v Richardson, 15 Misc.3d 138(A) (2007) 841 N.Y.S.2d 221,2007 N.Y. Slip Op. 50933(U) In the case at bar, there is nothing in the record from which this court can detennine whether defe11dant was present during sidebar and in camera. conferences with prospective jurors. Moreover, the record is silent as to whether defendant affmnatively waived his right to be present (see People v A /len, 300 AD2d I 098, supra; see also People v Cohen, 302 AD2d 904 [2003]). The record simply revea ls that said prospective jurors were questio11ed individually in the presence of counsel. Although some of the prospective j urors questioned served on the jmy, others were excused by the court on consent of the pat1ies. In addition, counsel for defendant Harry Richardson exercised peremptoty challenges as to three of *4 the prospective jurors and one peremptoty challenge of an a lternate prospective juror. Counsel also exercised a number of challenges for cause. However, it cannot be detetmined fi·om the record the nature of the discussions and the basis for the dispositions. In the absence End of Document of said information, defendant's claim cannot be resolved. Since the foregoing raises issues sufficient to rebut the presumption of regularity (see People v Velasquez, I NY3d 44 [2003]; see also People v Cahill, 2 NY3d 14 [2003]), this cow1 must reserve decision and remit the matter to the court below for a reconstruction hearing on said issues (see People v Allen, 300 AD2d I 098, S1tpra; People v Sand~. 280 AD2d 561 [200 I]; People v Ramos, 245 AD2d 314, 3 15 [ 1997]). The other issues raised by defendant on this appeal were considered and found to be without merit. Rudolph, P.J., Lippman and Owen, JJ., concur. Decision Date: May 7, 2007 Copr. (c) 20 15, Secretruy of State, State ofNew York © 2015 Thomson Reuters. No claim to original U.S. Government Works. VVestl" Next © 2015 Thomson Reuters. No claim to original U.S Government Works. 3 People v Walsh, 19 Misc.3d 1105(A) (2008) 859 N.Y.S.2d 906, 2008 N.Y. Slip Op. 50556(U) Unreported Disposition 19 Misc.3d uos(A), 859 N.Y.S.2d 906 (Table), 2008 WL 724724 (N.Y.City Crim.Ct.), 2008 N.Y. Slip Op. 50556(U) This opinion is uncorrected and will not be published in the printed Official Reports. The People of the State of New York, Plaintiff, Animals V. Martin Walsh, Defendant. 2007NY022001 Criminal Court of the City of New York, New York County Decided on January 3, 2008 CITE TITLE AS: People v Walsh ABSTRACT Cruelty to Animals People v Walsh (Martin), 2008 NY Slip Op 50556(U). Animals-Cruelty to Animals. Agriculture and Markets Law - § 353 (Overdriving, t01tming and injuring animals; failme to provide proper sustenance). (Crim Ct, NY County, Jan. 3, 2008, Simpson, J.) APPEARANCES OF COUNSEL FOR THE PEOPLE ROBERT M. MORGENTHAU, ESQ. DISTRICT ATTORNEY ONE HOGAN PLACE NEW YORK, NEW YORK I 0013 BY: ADA JENNIFER GlLHULY, ESQ. FOR THE DEFENDANT LAW OFFICES OF HENRY I. WElL HENRY I. WElL, ESQ. 277 BROADWAY, SUlTE LOL NEW YORK, NEW YORK 10007 OPINION OF THE COURT ShawnDya L. Simpson, J. INTRODUCTION The defendant is charged with one count of Overdriving, Torturing and Injuring Animals; Failure to Provide Proper Sustenance under Agriculture and Markets Law (hereinafter A. M. L.) 353. The defense bas brought a motion to dismiss on the grounds that the information fajls to state an offense and on facial deficiency. In the alternative, the defense seeks a bill of particulars; discovery; inspection; suppression of statements: or a Huntley hearing; and an adjoumment to prepare for trial. A response was filed by the People. For the forego·ing reasons, the defendant's motion to dismiss is denied. New York Agriculture and Markets Law 353 states, in pertinent part that:A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills 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 fumish it such sustenance or drink, or causes, procures or pe1mits any animal to be overdriven, overloaded, *2 tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, or who wilfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cr·uelty, is guilty of a class A misdemeanor and for ptu-poses of paragraph (b) of subdivision one of section 160.10 of the criminal procedure law, shall be treated as. a misdemeanor defined in the penal law. The accusatory instrument upon which the defendant rs arrajgned reads as follows: Deponent is informed by Dr. Robert Reisman, of the Bergh Memorial Animal Hospital, that at the above stated date and time infonnant observed one feline suffering from: (i) dehydration; (ii) emaciation/underweight; (iii) a swollen and bleeding front right paw and said paw has a tumor; (iv) bone loss in the digits of said paw due to said tumor that was left untreated; (v) a polyp in the nasal cavity which caused said feline to have breathing difficulty; (vi) an ingrown nail that grew back into said fel ine's front left paw; (vii) chronic liver and kidney disease; and (viii) advanced periodontal disease. Infonnant further informs deponent that said feline has been medically neglected. 'Westl" Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. People v Walsh, 19 Misc.3d 1105(A) (2008) 859 N.Y.S.2d 906, 2008 N.Y. Slip Op. 50556(U) Deponent states that she asked the defendant if the defendant owned the feline and whether the feline had any medical conditions to which the defendant stated in sum and substance: I NEVER TOOK THE CAT TO THE VET. I OWNED HTM FOR FfFTEEN )'EARS AND NEVER TOOK HIM TO THE VET. I NOTICED THE PAW WAS LIKE THAT. IT HAS BEEN LIKE THAT FOR A YEAR. The accusa tory instmment is signed and dated by the deponent and a corroborating statement from the infom1ant is included. BACKGROUND In its motion, the defense argues that the failure to provide medical care to an animal does not violate A. M. L. 353 because medical care is not "necessruy sustenance" pursuant to People v. Arroyo, 777 NYS2d 836 {3 Mise 3d 668} [Crim. Ct., Kings Co. 2004]. The defense also asse1ts that the infom1ation fails to show a causal connection between the defendant's alleged acts and the animal's medical condition. In response, the People assert that the statute is constitutional; the term "sustenance" covers more than food and drink; the requisite mental state is shown; and that People v. Arroyo, supra , is inapplicable to the instant case. That pru1 of A. M. L. 353 that deals with acts by omission imposes criminal liability where a defendant deprives an animal of oecessru)' sustenance or neglects or refuses to furnish such sustenance to an animal or where the animal is permitted to be to1tured or subjected to cruelty (see A. M. L. §§ 353 and 350 (2)). Although it is alleged that the animal was under weight and dehydrated, this allegation does not establish that the defendant d!eprived the animal of necessaJ)' sustenance, that is food or water, given the additional facts alleged herein. To this extent, the defense is correct in its asse11ions. However, the issue of unjustifiable physical pain is not addressed by the defense. Agriculture and Markets Law 350 (2) defines to1tme and cmelty as pennitting an animal to suffer unjustifiable physical pain. In this case, the allegations do provide a prima facie showing that the animal was pennitted to suffer unjustifiable physical pain. DISCUSSION A plain reading of the statute reveals that " necessary sustenance" is described within that *3 clause as "food or drink." The grammatical construction of the clause "or deprives any animal of oecessm)' sustenance, food or d1iok, or neglects or refuses to ftu·nish it such sustenance or dri11k" indicates that "necessaJ)' sustenance" is " food or drink" "[W]here phmses were meant to be separated, the statute delineates such separation by placement of a comma before the d isjunctive or"'(Annabi v. City Council, 235 N.Y.L.J. 106 [June 2, 2006]). Was the statute intended! to list three separate types of dep1ivation it would have read" ... sustenance, food, or drink .. . "(see, R. Lederer & J. Shore, Comma Sense, 29-30 (2005)). For example, in an author's dedication"to my parents, the Pope and Mother Theresa", the absence of a comma between "Pope" and "and" indicates that the author's parents ru·e the Pope and Mother Theresa and not that a separate dedjcation was being made to each of the three (!d. at p. 29). "Three or more items in a series should be separated by commas" (Elisabeth Chesla, Grammar Somce, 319 (2005)). Evidently, the clause " ... necessmy sustenance, food or drink, or ... " is not a series or a list 1 • FUJther, "[ w ]here a statute describes a pmticu1ar situation to which it applies, an inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (Annabi v. City Council, supra). The plain language of the law must be relied upon and in this instance, the meaning of"necessary sustenance" is reiterated in the statute as food or drink 2 . The statute also states that the law applies where the defendant " ... refuses to fumish it such sustenance or drink, or causes, . . .", omitting or replacing the tenn sustenance for food. The terms "sustenance" and " food" are used interchangeably in the statute and ru·e consequently one in the smne. "A central rule ofstatutOI)' construction is that when the statutOJ)' language is clear and unambiguous, the court should construe the language so as to give effect to the plain, ordinary meaning of the words used" (Annabi v. City Council, supra, citing People v. Finnegan, 85 NY2d 53 [1995]) 3 . Under the statute, "necessaJ)' sustenance" is defined by its ordinal)' *4 meaning as essential alimentations 4 . Therefore, the failure to provide an animal with medical care is not encompassed in the phrase " necessary sustenance." A charge under A. M. L. 353 for failure to provide medical care cam1ot be based solely on the term "necessary sustenance" since such care is not included in the ordinary meaning of the phrase. However, the failme to provide medical care alone may be chargeable based on section 350 of A. M. L. since tmture and cruelty are defined therein as eveJ)' act, omjssion, or neglect, that causes or permits an animal to suffer unjustifiable physical pain or death (A.M. L. 350 (2)). The test for tortme or cmelty is whether the act or omission is 'Westl" Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 People v Walsh, 19 Misc.3d 1105(A) (2008) 859N.Y.S.2d906,2008NY~.~~~ip~O~p~.5~0~55~6m(UTI)~~~~~~~~~~~~~~~~~~~~~~ unjustifiable (People v. Sito1~1·, 8 15 NYS2d 393 { 12 Mise 3d 928} [Co. Ct., Schoharie Co. 2006]). The instant allegations sufficiently demonstrate that the animal was subjected to unjustifiable physical pain and consequently, the charge may be maintained. The a llegations state that the animal was medically neglected. The allegations provide that the animal, a cat, was unable to use its right front paw because of a tumor. The animal is alleged to have had a tumor in its right fi·ont that was swollen, bleeding and incurred bone loss in the digits. The allegations describe a condition that was readily visible. The cat is also said to have had a nail growing back around into its left front paw. The cat is further alleged to have had a polyp in its nasal passage that caused it djfficulty breathing. The eat's periodontal, I iver and kidney diseases are also alleged to have been chronic. Although the animal is said to have been fifteen years old, it is a lso alleged that the defendant left it in the above described condition for over a year. Therefore, it is difficult to conclude at this stage that the physical condition the animal was allegedly pennitted to suffer was justifiable. Further, the issue of justifiability is one left more appropriately for trial. These allegations sufficiently demonstrate that the defendant permitted the animal to suffer unjustifiably. If the defendant was unable to care fi.trther for the animal, for financial or any other reason, he could have sun·endered the animal to the Society for the Prevention of Cruelty to Animals (ASPCA). A justification for the defendant's act of omission, that is permittjng the animal to suffer for over a year, is not apparent at this stage and none is asserted by the defense. The defendant may proffer the reason he believes he was justified in not providing medical care or surrendering the animal at trial. In this case, the allegations provide a prima facie showing that the defendant's failure to provide medical care to the animal was unjustifiable given the prolonged period the animal was left in the condition alleged. Further, the question of"unjustifiable physical pain" cannot be easi ly discerned in a motion to dismiss. Viewing the allegations in the light most favorable to the People (People v C'ontes, 60 NY2d 620,62 1 [1983]) the element of unjustifiable physical pain is sufficiently established herein. Additionally, the statute is constitutional where the defendant is shown to have overdriven, tortured, injured, or failed to provide proper sustenance to an animal, or permitted it to suffer unjustifiable pain as is the case in this proceeding (see People v. Bunt, 462 NYS2d { 118 M isc 2d 904} 142 [Justice Ct., Dutchess Co. 1983]; People v. Voelker, 172 Mise 2d 564 [Crim. Ct., Kings Co. 1997]; People v. Garcia, 777 NYS2d 846 {3 Mise 3d 699} [Sup. Ct., NY Co. 2004]; People v. Garcia, 8 12 NYS2d 66 {29 AD3d 255} (App. Div., I st Dept 2006]; but see, People v. Arroyo, supra , holding law inapplicable to defendant who failed to provide *5 medical care to a terminally ill animal). Ln People v. Temples, docket No. 2003KN066507 [Crim. Ct., Kings Co. June 4, 2004], the court, which also ruled in Arroyo, supra , stated that the proceeding in Arroyo, supra , was dismissed because those allegations failed to show a pattem of neglect. However, the allegations in this case sufficiently demonstrate a pattem of neglect that a reasonable person should have known could give cause for criminal liability. CONCLUSION As discussed above, the allegations SLLfficiently show that the defendant neglected the animal and permitted it to suffer unjustifiable physical pain. Consequently, the allegations are sufficient for the charge. Accordingly, the defendant's motion to dismiss is denied. The defendant's motion for discovery is granted to the extent required by Criminal Procedure Law 240.20. The defendant's motion for a bill of particulars is granted to the extent provided for in the voluntary disclosure form included a long with the People's response. The defendant's motion to suppress statements is granted to the extent that a Huntley hearing is ordered on the issue. The defendant's motion for an adjournment to prepare for trial is granted. This constitutes the decision, opinion and order of the Court. Dated:New York, New YorkJanuary 3, 2008 The Honorable ShawnDya L. SirnpsonJudge of the Criminal Court FOOTNOTES Copr. (c) 2015, Secretary of State, State ofNew York WesttawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works 3 People v Walsh, 19 Misc.3d 1105(A) (2008) 859 N.Y.S.2d 906, 2008 N.Y. Slip Op. 50556(U) Footnotes 1 Similarly, as the People discuss in their responsive papers, the term "mutilated or killed" expounds on the word "maimed." "Maimed" and "mutilated" are synonymous, just as "sustenance" and food are. This grammatical construction gives cause to conclude that this clause is not a series or list. 2 The words "food or drink" in this instance are what is known as Appositives since they serve to give additional information about the immediately preceding word, in this case "sustenance", and are set off from the rest of the clause with commas (see Rh Value Publishing, Webster's Grammar and Punctuation Handbook, 240 (2001 )). 3 See a/so, People v. Buckmire, 167 Mise 2d 581 [Crim. Ct., NY Co. 1995] holding that "[g]enerally, penal laws must be construed so as to give effect to their most natural and obvious meaning. A court is obligated to construe an unambiguous statute according to its plain meaning, even if the plain meaning seems unintended or inadvisable. Moreover, it is basic that a criminal statute is to be narrowly construed against the State and in favor of the accused. A strained or unnatural interpretation of a penal statute could potentially expand criminal liability and therefore courts must be scrupulous in insuring that penal responsibility is not extended beyond the fair scope of the statutory mandate." 4 Alimentation is a synonym of sustenance as provided in The American Heritage Dictionary of the English Language (4th ed. 2000 updated in 2003). End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. VVestl" Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 State v. Peters, Not Reported in N.E.2d (2002) 2002 -Ohio- 6094 2002 WL 31501264 CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY. Comt of Appeals of Ohio, Seventh District, Belmont County. STATE of Ohio, Plaintiff-Appellee, V. Heather PETERS, Defendant-Appellant. No. 01-BA-57. Decided Nov. 6, 2002. Defendant was convicted in the County Court, Belmont Cotmty, No .. OICRB612, of cruelty to an animal. Defendant appealed. The Court of Appeals, Belmont County, Donofrio, J ., held that conviction for cruelty to an animal was not against the manifest weight of the evidence. Affinned. West Headnotes (I) Ill Animals t- Protective and Anti-Cruelty Regulation in General Conviction for cruelty to an animal was not against manifest weight of the evidence; defendant, her husband, and defendant's father all realized that dog was sick, defendant did not take dog to a veterinarian for medical care, there was no evidence that defendant ever took dog to a veterinarian, and in the weeks before his death dog was acting lethargic, lost weight, lost hair, and had blood in his stool and in his vomit. R.C. §§959. 13(A)( I), 17 17.01, 2901.22(C). Cases that cite this headnote Criminal Appeal from County Court, Western Division, Case No. 01CRB612. Attorneys and Law Firms Frank Pierce, Prosecuting Attorney, Thomas M. Ryncarz, Assistant Prosecuting Attorney, St. Clairsville, OH, for plaintiff-appellee. Attorney Bany L. Koerber, Bamesville, OH, for defendant- appellant. Opinion DONOFRlO, J. *I { ~ I} Defendant-appellant, Heather Peters, appeals her conviction in the Belmont County Court, Western Division for cruelty to an animal following a bench trial. { ~ 2} On or about July 16,2001 , Vema Painter, a volunteer for the Belmont County Animal Shelter, received a call notifying ber of an animal that was in possible distress. As a result of the call Ms. Painter, along with Che1yl Demetrakis, the vice president of the Belmont County Animal Rescue League, went to the home of the allegedly distressed animal to see if a valid complaint existed. There they found an emaciated dog lying on his side with his bead down. The two women received pennission from appellant, the dog's owner, to take the dog, Noah, with them. They took Noah to Animal Urgent Care where the veterinarian detennined that Noah had end-stage heartworm disease and was near death. Therefore, the veterinarian euthanized Noah. { ~ 3} As a result, on July 23, 200 I, an abuse officer from the Belmont County Animal Rescue League filed a complaint against appellant alleging that she abused Noah in violation of R.C. 959.13(A)(1 ), a second-degree misdemeanor. Appellant proceeded to a bench trial on October 9, 200 I. The trial court found appellant guilty. It sentenced appellant to 90 days in jail, 60 days suspended; ordered her to pay a $250.00 fine; ordered that she pay restitution in the amount of$101.00; and placed her on supervised probation for two years. Appellant filed her timely notice of appeal on October 29, 2001. The trial court granted appellant a stay of execution pending this appeal. { ~ 4} Appellant raises one assignment of error, which states: { ~ 5} "DEFENDANT-APPELLANT'S GUTL TY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW." 'Westl" Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. State v. Peters, Not Reported in N.E.2d (2002) 2002 -Ohio- 6094 { ~ 6} Appellant argues that the evidence presented at trial does not support her conviction. She points out that Dr. Mike Sparling, the veterinarian who treated Noah, testified dogs that live in areas infested with heartworms should be on heartworm prevention medication. Appellant contends she was not aware that her geographic area was infested with heaitwoims; thus, her failw-e to give Noah herutwo1·m prevention medication was not unreasonable. Appellant also notes she testified that she gave Noah an over-the-counter wonn medication. She fwther notes that Dr. Sparling testified that it is a common misconception among lay people to think that an over-the-counter worm medication can help a heartwotm problem. Finally, appellant calls our attention to her testimony that Noah always lost weight in the summer and regained the weight in the fall. { ~ 7} In detem1ining whether a verdict is against the manifest weight of the evidence, an appellate cowt must review the entire record, weigh the evidence and all reasonable inferences and determine whether, in resolving conflicts in the evidence, the jwy clearly lost its way and created such a manifest miscaniage of justice that the conviction must be reversed and a new trial ordered. Stale v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. "Weight of the evidence concems ' the inclimation of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.'" ld. (Emphasis sic.) ln making its detennination, a reviewing court is not required to view the evidence in a light most favorable to the prosecution but may consider and weigh all of the evidence produced at trial. !d. at 390, 678 N .E.2d 541. *2 { ~ 8} Still, determinations of witness credibility, conflicting testimony, and evidence weight are piimaiily for the trier of the facts. S1a1e v. DeHass ( 1967), I 0 Ohio St.2d 230, 227 N .E.2d 212, paragraph one of the syllabus. { ~ 9} Appellant was convicted of violating R.C. 959. 13(A) ( I) . This statute provides: { ~ 10} "(A) No person shall : { ~ 11 } "(l) TOiture an animal, deprive one of necessary sustenance, unnecessarily or cruelly beat, needlessly mutilate or kill, or impound or confine an animal without supplyimg it during such confinement with a sufficient quantity of good wholesome food and water." R.C. 959. 13(A)( I). { ~ 12} ln order to sustain a conviction under R.C. 959.l3(A), the State must prove, beyond a reasonable doubt, the appet:lant acted recklessly. Stale v. Dresbach (1997), 122 Ohio App.3d 647, 652, 702 N.E.2d 51 3. R.C. 2901.22(C) defines the term "recklessly" as follows: { ~ 13} "A person acts recklessly when, with heedJess indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a ce1tain result or is likely to be of a ce1tain nature. A person is reckless with respect to <:ircumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist." !d. { ~ 14} Tihe trial cou1t found that appellant tortured Noah. The trial cowi, utilizing the reasoning of Dresbach, supra, applied the definition of"torture," found in R.C. 1717 .0 1. R.C. 1717.0 I provides in pe1tinent pa1t: { ~ 15} "As used in sections 1717.01 to 1717.14, inclusive, of the Revised Code, and in eve1y law relating to animals: {~ 16}"** * { ~ 17} "(B) 'Cmelty,' 'torment,' and 'torture' include eve1y act, omission, or neglect by which unnecessa1y or unjustifiable pain or suffering is caused, pem1itted, or allowed to continue, when there is a reasonable remedy or relief., { ~ 18} The Dresbach court also fou nd the definition of torture, as set fo1th in R.C. 1717.01(B), " is broad enough to include situations where an animal suffers needlessly because of the owner's failure to seek critically 111ecessary veterinary cru·e, if such cru·e represents a reasonable remedy." I d. at 651, 702 N.E.2d 513. Therefore, in order to sustain the convictioD, the evidence must support a finding that appellant acted with heedless indifference or disregarded a known risk which resulted in Noah suffering unnecessarily when a reasonable remedy was available. { ~ 19} The patties e licited the following testimony at trial. { ~ 20} Ms. Painter, one of the first women to see Noah, testified sbe learned ofNoab wbeD she received a call about an animal that was in possible distress. (Tr. 8). Ms. Painter called Ms. Demetrakis to accompany her to investigate the complaint (Tr. 9). The two traveled to Flushing Township in Belmont County, Ohio where they found Noah. (Tr. 9). They also spoke with appellant, Noah's owner. (Tr. 9). Wl1en 'Westl" Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 State v. Peters, Not Reported in N.E.2d (2002) 2002 -Ohio- 6094 asked to describe Noah's condition Ms. Painter explained, "Very, vety thin. Emaciated. Laying at the end of his chain on his side, all four legs out and his head was down." (T r. 1 0). Ms. Painter testified that Noah was not able to stand up and she had to carry him to her vehicle. (T r. 11 ). Ms. Painter testified that she bas been involved with the Animal Rescue League for approximately 28 years. (Tr. I 2). She stated that Noah's health appeared to be "horrible." (Tr. 12). Ms. Painter stated she had never seen a worse case of a dog suffering !Tom heartwonn infection during her entire time working in the field. (Tr. 12). She stated she heard appellant state that she did not have the money to get Noah medical care. (T r. 12). She opined that by the time she saw Noah, his disease was so advanced that he would have to be euthanized. (Tr. 12 13). Ms. Painter further testified that the cost of euthanizing a dog at the animal shelter was $3.50. (Tr. 13). When asked whether in her opinion appellant had intentionally harmed Noah, Ms. Painter stated that she believed appellant acted recklessly, irresponsibly, should have known better and did not care about Noah. (Tr. 15-16). Ms. Painter additionally testified about heartwOJm disease. She stated that the signs that indicate a dog is infected with the disease include a chronic cough, lethargy and listlessness. (Tr. 16). *3 { ~ 21} Next, Ms. Demetrakis testified. Ms. Demetrakis stated that when they an·ived at appellant's house she asked appellant about Noah's condition. (Tr. 22). Appellant informed Ms. Demetrakis that Noah had been sick for about a month and had been losing weight. (Tr .. 22). She told Ms. Demetrakis she had given Noah over-the-counter worm pills. (Tr. 22). She also told Ms. Demetrakis she had checked into euthanizing Noah, but it was cost prohibitive. (Tr. 23). Ms. Demetrakis next testified about Noah's condition. She stated that when she saw Noah, he appeared to be in the process of dying. (Tr. 23). She testified that Noah was lying on the ground, made no effot1 to stand, was having difficulty breathing rund his gums were yellow from jaundice. (T r. 23-24). When asked if Noah appeared to be in any pain, Ms. Demetrakis stated that when they tried to slide him onto a blanket to move him, he screamed. (Tr. 24). Ms. Demetrakis, who had been with the Animal Rescue League for 30 years, opined the humane thing to do for Noah was to take him to a veterinarian who could evaluate the situation and then have biro eutbanized. (Tr. 24). Sbe characterized appellant's lack of care for Noah as grossly neglectful. (Tr. 25). Ms. Demetrakis opined that Noah's condition had to have been deteriorating for several weeks to reach tbe point where she found him. (T r. 27-28). She testified that the treatment for heartworms is. a diagnostic blood test followed by medication. (Tr. 29). She also testified the animal shelter infonns people who call that if their animal is sick, the shelter will pay for a veterinarian's visit. (Tr. 30). { ~ 22} Dr. Sparling, the veterinarian from Animal Urgent Care, testified next. Dr. Sparling stated that he examined Noah and noted Noah was considerably thin, with all 1ibs as well as all bony protuberances of the pelvis and spine visible. (Tr. 32). Dr. Sparling testified Noah was weak and unable to stand, which was due to a low pax it and blood count and a heart problem. (Tr. 32-33). He also stated Noah had a jugular pulse present, which indicated regular heart failure; a wholly systolic mutmur; weak pulse; and jaundice. (Tr. 33). When asked about the appearance of Noah's coat and ears, Dr. Sparling testified that the other conditions he mentioned were so life tlu·eatening that he did not concern himself with anything else. (Tr. 33). Dr. Sparling testified Noah had the frame of a 50-pound dog; however, he only weighed 37.5 pounds. (T r. 33). Dr. Sparling stated Noal1 was near death. (Tr. 33). He also stated that Noah was semi-comatose, so he did not appear to be feeling pain. (Tr. 34). Dr. Sparling testified that Noah had end-stage heru1wOtm disease. (Tr. 34). Dr. Sparling stated Noah became vety weak because his heat1 was not working properly; however, he did not think Noah was in agonizing pain. (Tr. 35). Dr. Sparling testified that Noah should have been on heartworm prevention. (Tr. 46). Given his condition, he also opined that appellant should have had Noah euthanized. (Tr. 46). *4 { ~ 23} Additionally, Dr. Sparling testified dogs are usually tested once a year to check for heat1worms. (Tr. 34). He stated that once the animal's symptoms become clinically apparent, it is already on a slippery slope. (Tr. 34). Dr. Sparling testified that there exists a common misconception among lay people that an over-the-counter worm medication will treat heartwonns. (Tr. 35-36). When asked about what type of care appellant should have provided Noah, Dr. Sparling testified Noah should have been on hemtworm prevention, either in the fom1 of a monthly pill or a semi- annual shot. (Tr. 36). He also testified when a dog is first presented with heattworms, his norn1al cow·se of treatment would be to run some tests and then give the dog a drug to kill the heartworms. (Tr. 37). He further stated that in his professional opinion a dog in Noah's condition needed to be euthanized. (Tr. 38). Dr. Sparling testified that once the dog begins to lose weight, it has about a 50150 survival rate if treated; if left untreated, heartwonns are fatal. (Tr. 41 ). He also stated that the average cost to treat heartworms is approximately $300 to $500. (Tr. 41 ). Dr. Sparling testified 'Westl" Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 State v. Peters, Not Reported in N.E.2d (2002) 2002 -Ohio- 6094 that dogs with heartworms often feel as though they have a very bad flu. (Tr. 43). { ~ 24} Next, appellant testified in her own defense. Appellant testified that in the summer of 2001 she began to notice problems with Noah including weight loss and hair loss. (T r. 51). She stated there were some days when he would not eat. (Tr. 51). Appellant stated! that every summer Noah would lose some weight and then in the fall, he would gain it back. (Tr. 52). She attributed Noah's weight loss to heartw01ms. (Tr. 52). Appellant testified she attempted to treat Noah with pills, which she refen·ed to as hea1twonn piUs. (T r. 53). She introduced the pill box into ev idence. (Defendant's Exhibit A). Appellant admitted that when Ms. Painter and Ms. Demetrakis took Noah, he was unable to get up. (Tr. 55). She stated that she thought about euthanizing Noah but she thought he would perk back 11.1p in the fall . (Tr. 57). { ~ 25} On cross-examination, the State presented appellant with three photographs of Noah on his last day. (State's Exhibits I , 2 and 3). She testified the photographs were accw·ate representations of how Noah looked that day. These photographs speak for themselves. They show Noah lying on his side. His ribs are noticeably visible through his coat as are other bony protrusions. His belly is sunken in and he appears listless. The State also asked appellant to point out where on the box of medication it stated the pills were for heartw01ms. (Tr. 60). Appellant admitted that nowhere did the box state that the pills were for hea1twonns. (Tr. 60). The box states that it is for the "removal of the large roundworm." (Defendant's Exhibit A). Additionally, the box reads in capital letters, "DO NOT WORM PUPPIES OR DOGS THAT ARE SICK, * * *. CONSULT YOUR VETERINARIAN FOR ASSISTANCE IN THE DIAGNOSIS, TREATMENT AND CONTROL OF PARASITISM." (Defendant's Exhibit A). *5 { ~ 26} Appellant's husband, Stewart Peters, also testified in his wife's defense. He testified that Noah was unable to walk for about two days before the animal rescue people atTived. (Tr. 67). He also contradicted has wife's testim01ny stating that Noah did not have health problems evety summer. (Tr. 69). When shown the pictures of Noah on cross-exam, Mr. Peters stated Noah did not normally look that way; he only appeared that way after he became ill. (Tr. 70). He testified Noah did not become ill and looked that way evety summer. (Tr. 70). { ~ 27} Last to testify was appellant's father, Ronald Hickenbottom. Mr. Hickenbottom testified that Noah lost weight and did not eat and drink as much in the hot summer months. (Tr. 72). He stated that the summer of 200 I was not any different until about two weeks before the animal rescue people came for him. (Tr. 73). Mr. Hickenbottom testified that at this time Noah began having blood in his bowel movements and vomiting with blood in the vomit. (Tr. 73). He testified that he thought Noah was not going to survive so he offered to shoot him, but appellant refused. (Tr. 73). { ~ 28} It is clear from the evidence that appellant acted recklessly in failing to seek some sort of medical attention for Noah. Noah was clearly suffering during the weeks and days leading up to July 16. Appellant, her husband and her father all recognized that Noah was sick. Noah exhibited many symptoms including lethargy, weight loss, hair loss, blood in h is stool and vomiting blood. Appellant's father even reCO!,>nized that Noah was so sic!k that he shouldl be euthanized, yet appellant failed to seek veterinary care for Noah. Apparently, Noah was in such a decrepit, feeble state that an anonymous person believed he was in serious enough danger to wanant a call to the Animal Rescue League. { ~ 29} Failing to seek veterinaty care or even advice over the telephone from a veterinarian or animal care provider constituted " torture" as R.C. 1701.0 I (B) defines the term. It was an act by which unnecessary or unjustifiable pain or suffering was caused, petmitted, or allowed to continue, when there was a reasonable remedy or relief. First, appellant should have taken Noah to a veterinarian at some point in his life. Had she done so, presumably Noah would have been given preventive heartwonn medication. Appellant's father testified that he took Noah to a veterinarian once when he first got Noah, which would have been approximately fom years earlier. There is no evidence appellant ever took Noah to a veterinarian since she owned him. Even if it was reasonable that appellant never took Noah to a veterinarian while he was healthy, after he became noticeably ill, she should have taken him to a veterinarian to seek diagnosis and treatment for his condition. Had she done so, Noah could have been tested positive for heartworms and proceeded with medication. Even if Noah presented with symptoms at a point where it was too late to save his Life, appellant should have had Noah euthanized to end his suffering. The local animal shelter would have euthanized Noah for $3.50. *6 { ~ 30} Animal cruelty does not consist solely of active cruelty, but also includes passive cruelty or neglect. State v. Myers (1993), 87 Ohio App.3d 92, 96, 621 N.E.2d 88 1. Such is the case before us. Appellant's actions, or 'West!" Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 State v. Peters, Not Reported in N.E.2d (2002) 2002 -Ohio- 6094 lack thereof, were unjustifiable. The decision not to seek treatment from a veterinarian, or the local animal shelter, was inexcusable given the condition Noah was in on July 16. Appellant may not have had the finances to provide Noah with the best veterinary care available. However, when she decided to own a dog she acquired ce1tain responsibilities, one of which was to see to it that the dog did not suffer unnecessarily due to her heedless indifference for his health. Clearly, appellant's omissions and/or neglect caused Noah unnecessa1y or unjustifiable pain and/or suffering, which she allowed to continue, when there were several reasonable remedies she could have pursued. After a thorough review of the record, it is clear that the trial judge as finder of fact d!id End of Document not lose his way and cause a manifest miscaniage of justice. Accordingly, appellant's sole assignment of en·or is without merit { ~ 31 } For the reasons stated above, the decision of the trial cou1t is hereby affirmed. WAITE and DeGENARO, JJ., concur. ParaUel Citations 2002 -Ohio- 6094 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 'Westl" Next © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5