The People, Respondent,v.Curtis Basile, Appellant.BriefN.Y.June 2, 2015Queens County Information No. 2007QN068755 APL-2014-00038 Court of appeal( STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, —against- CURTIS BASILE, Respondent, Defendant-Appellant. BRIEF OF AMICUS CURIAE CIVIL RIGHTS RESEARCH CENTER Daniella P. Main Alston & Bird LLP 90 Park Avenue New York, New York 10016 Telephone: (212) 210-9400 Facsimile: (212) 922-3954 Counsel for Amicus Curiae Civil Rights Research Center Date Filed: May 7, 2015 CORPORATE DISCLOSURE STATEMENT OF CIVIL RIGHTS RESEARCH CENTER Pursuant to Section 500.1(f) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Civil Rights Research Center ("CRRC") certifies that CRRC is a non-profit organization that has no parent company and issues no stock. TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii INTEREST OF AMICUS CURIAE 1 SUMMARY OF ARGUMENT 2 ARGUMENT 7 I. The Mens Rea Requirement is a Fundamental Tenet of Criminal Law 7 II. Affirming the Appellate Court's Holding Would Set a Dangerous Precedent Within and Beyond the Animal Cruelty Context, Threatening Other Unsuspecting New Yorkers with Criminal Punishment 12 III. Despite the Strong Presumption Against Strict Liability, Its Application Persists in the Law 16 IV. Imposing Strict Criminal Liability Leaves Enforcement to the Discretion of Prosecutors and Has the Potential to Disproportionately Impact New York's Most Vulnerable Population 21 CONCLUSION 31 TABLE OF AUTHORITIES Cases Page(s) Bearden v. Georgia, 461 U.S. 660 (1983) 27 Bouie v. City of Columbia, 378 U.S. 347 (1964) 9 Liparota v. United States, 471 U.S. 419 (1985) 10 Morissette v. United States, 342 U.S. 246 (1952) 7, 9 Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) 27 People v. Basile, 22 N.Y.3d 1137 (2014) 11, 29 People v. Chesler, 50 N.Y.2d 203 (1980) 11 People v. Coe, 71 N.Y.2d 852 (1988) 11 People v. Ryan, 82 N.Y.2d 497 (1993) 11 People v. Williams, 81 N.Y.2d 303 (1993) 11 Smith v. Wade, 461 U.S. 30 (1983) 8 Staples v. United States, 511 U.S. 600 (1994) 7, 9 United States v. Santos, 553 U.S. 507 (2008) 10 ii Cases Page(s) United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) 9 Statutes N.Y. Penal Law 6, 10, 11, 21,30 N.Y. Penal Law §15.15 passim N.Y. Penal Law §15.15(2) 10 Agr. and Markets Law § 353 passim Other Authorities 1 J. Bishop, Criminal Law §§ 285-287 (5th ed. 1872) 8 Annmarie Fertoli, NYPD s Involvement Hikes Arrests for Animal Cruelty, WNYC (Aug. 4, 2014) 29 Bradley Hope, With the Public's Help, ASPCA Better Tackles Crime, The New York Sun (Jan. 5, 2007) 29 Brian W. Walsh & Tiffany M. Joslyn, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law (April 2010) 21 Darryl K. Brown, Criminal Law Reform and the Persistence of Strict Liability, 62 Duke L.J. 285 (2012)... 11 Darryl K. Brown, Criminal Law's Unfortunate Triumph Over Administrative Law, 7 J.L. Econ. & Pol'y 657 (2011) 18 iii Other Authorities Page(s) David Favre & Vivien Tsang, The Development of Anti-Cruelty Laws During the 1800's, 1993 Det. Coll. L. Rev. 1 (1993) 12 Democratic Views on Criminal Justice Reforms Raised Before the Over- Criminalization Task Force & the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, 113th Cong. (Dec. 16, 2014) 16, 20 Douglas L. Colbert, Prosecution Without Representation, 59 Buffalo L. Rev. 333 (April 2011) 25 Douglas L. Colbert, Ray Paternoster & Shawn Bushway, Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail, 23 Cardozo L. Rev. 1719 (May 2002) 25 Francis B. Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55 (1933) 8 Gary Fields & John R. Emshwiller, A Sewage Blunder Earns Engineer a Criminal Record, The Wall Street Journal, Dec. 12, 2011 14 Gary Fields & John R. Emshwiller, As Criminal Laws Proliferate, More Are Ensnared, The Wall Street Journal, July 23, 2011 17 Gary Fields & John R. Emshwiller, As Federal Crime List Grows, Threshold of Guilt Declines, The Wall Street Journal, Sept. 27, 2011 17 Harvey A. Silverglate, Three Felonies a Day: How the Feds Target the Innocent (2009) 22 Herbert Wechsler, The Challenge of a Model Penal Code, 65 Harv. L. Rev. 905 (1939) 7 James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1555. (1981) 24 iv Other Authorities Page(s) Jeffrey J. Pokorak, Probing the Capital Prosecutor 's Perspective: Race of the Discretionary Actors, 83 Cornell L. Rev. 1811 (1998) 24 John S. Baker, Jr. & William J. Haun, The "Mens Rea" Component Within The Issue of the Over-Federalization of Crime, J. of the Federalist Soc. for L. and Pub. Pol'y Studies (Vol. 14, Issue 2) (July 2013) 9 Katherine Schulten, Should You Go to Jail for Kicking a Cat?, The New York Times, Oct. 1, 2014 30 Laurie L. Levenson, Good Faith Defenses: Reshaping Strict Liability Crimes, 78 Cornell L. Rev. 401 (1993) 26 Making It a Federal Case: An Inside View of the Pressures to Federalize Crime, Heritage Found. L. Memo. No. 30, Aug. 29, 2008 28 Marc Mauer & Nazgol Ghandnoosh, The Sentencing Project, Policy Brief. Fewer Prisons, Less Crime: A Tale of Three States (July 2014) 16 Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law: Hearing Before the H. Comm. on the Judiciary, 113th Cong. (2013) 18 Mosi Secret, N.Y.C. Misdemeanor Defendants Lack Bail Money, The New York Times, Dec. 2, 2010 25 Norman Lefstein, ABA Standing Committee on Legal Aid and Indigent Defendants, Criminal Defense Services for the Poor—Methods and Programs for Providing Legal Representation and the Need for Adequate Financing (May 1982) 27 Over-criminalization of Conduct/Over-federalization of Criminal Law: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 111th Cong. (2009) 19 Paul J. Larkin, Jr., Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause, 37 Harv. J.L. & Pub. Pol'y 1065 (2014) 26 v Other Authorities Page(s) Press Release, AVMA Releases New Stats on Pet Ownership, Ranking Top/Bottom 10 States, Jan. 15, 2013 15 Press Release, Judiciary Committee, House Judiciary Committee Reauthorizes Bipartisan Over-Criminalization Task Force, Feb. 5, 2014 19 Reining in Overcriminalization: Assessing the Problems, Proposing Solutions: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 111th Cong. (2010) 19, 21 Richard Klein, The Emperor Gideon Has No Clothes: The Empty Promise of the Constitutional Right to Effective Assistance of Counsel, 13 Hastings Const. L.Q. 625, 675 (1986) 26 Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795 (2012) 23, 24 Sanford C. Gordon & Gregory A. Huber, The Political Economy of Prosecution, 5 Ann. Rev. L. & Soc. Sci. 135 (2009) 28 Stephen F. Smith, Overcoming Overcriminalization, 102 J. Crim. L. & Criminology 537 (2012) 18 Susan Pilcher, Ignorance, Discretion and the Fairness of Notice: Confronting "Apparent Innocence" in the Criminal Law, 33 Am. Crim. L. Rev. 1 (1995) 23 http://nationalpress.org/awards/winner/gary-fields-john-emshwiller/. 14 vi INTEREST OF AMICUS CURIAE The Civil Rights Research Center ("CRRC") is a non-profit policy organization focused on, among other issues, the effects of criminal law on society and on securing due process and equal protection for every person accused of a crime, thereby helping to safeguard their fundamental civil rights and liberties. CRRC was founded by its president Brian W. Walsh, who has extensive experience in policy issues related to criminal law, particularly in the area of overcriminalization and the proliferation of flawed criminal offenses that are vague, overbroad, or lack mens rea requirements to adequately protect the innocent from unjust prosecution and punishment. In addition to publishing numerous articles, reports, and similar works on criminal law and justice, Mr. Walsh's scholarship on these issues has included expert testimony before committees of the U.S. House of Representatives and U.S. Senate. CRRC is concerned about what it considers to be the dangerous use of strict liability to improperly ease the government's burden of proof in prosecuting criminal charges contrary to the strong and well-established presumption against strict liability in American criminal law. Accordingly, CRRC writes to provide this Court with further information regarding the potential impact that the New York courts' application of strict liability in criminal prosecutions like Mr. Basile's would have both within and outside the animal cruelty context, as well as the 1 reasons why subjecting individuals to criminal punishment only for inherently wrongful (malum in se) conduct, or for malum prohibitum conduct they knew was illegal or otherwise wrongful, is of critical importance both to ensuring the fair administration of justice in the modern republic, and to preserving the core principles and protections upon which the American system of justice is founded. SUMMARY OF ARGUMENT Nothing is more essential to protecting innocent New Yorkers against unjust criminal conviction and punishment than ensuring that every criminal offense includes an adequate mens rea requirement. No person should be convicted of a crime without the government having proved that he acted with a guilty mind— that is, that he intended to violate the law or knew that his conduct was unlawful or sufficiently wrongful so as to put him on notice of possible criminal liability. Curtis Basile's conviction should be reversed because the trial court did not require the government to prove Mr. Basile acted with a guilty mind and because the jury was not instructed that it should acquit him if the government failed to prove this. Criminal conviction and punishment (and their collateral consequences) are the greatest powers that a just and civilized government uses against its own people. Notwithstanding twentieth-century innovations that opened the door to imposing criminal punishment without proof of mens rea for certain so-called "public welfare offenses," American law generally—and New York law 2 specifically—retain their strong and long-established presumptions against convicting and punishing any individual who did not act with a guilty mind. The U.S. Supreme Court has never departed from its commitment to mens rea as a "universal and persistent" feature of any modern criminal justice system—one that hinges on a cogent understanding of human nature and a mentally sound individual's ability to choose between good and evil. An express, clear, and adequate mens rea requirement is particularly essential in criminal offenses punishing conduct that is not inherently wrongful. Where conduct is wrongful only because it is prohibited by law (malum prohibitum), an individual should not be presumed to know that his conduct was unlawful or sufficiently wrongful so as to put him on notice of possible criminal liability. Because the number, scope, and complexity of malum prohibitum criminal offenses have multiplied in recent decades, criminal-law experts increasingly agree that today "a person can reasonably be mistaken about the law." This makes adequate mens rea requirements more important than ever to protect innocent laypersons such as Curtis Basile from unjust punishment. As a matter of New York statutory and case law, strict liability should not have been imposed here. Indeed, New York courts are statutorily obligated under N.Y. Penal Law Section 15.15 ("Section 15.15") to presume against applying strict criminal liability absent a clear legislative intent to do away with mens rea. Yet 3 there is no clear legislative intent to dispense with a mens rea requirement under Agriculture and Markets Law Section 353 ("Section 353"), the statute at issue here. This Court has a long and consistent history of rejecting improper insinuations of strict liability into statutes that lack the clear legislative intent that Section 15.15 of the Penal Law requires. Moreover, there is nothing inherently wrongful about being indigent and unable to afford to adequately feed your dog. Yet this is precisely the dire situation that led Curtis Basile, an indigent 19-year- old, to be arrested and found guilty of a crime under Section 353, and sentenced to three years' probation and 45 days of community service. Mr. Basile is now deemed to be a criminal, a status with serious collateral consequences that could follow this young man for the rest of his life. To be sure, actual animal abuse and cruelty constitute wrongful conduct that, when accompanied by mens rea, warrant criminal punishment. However, under the lower courts' interpretation in this case, there is nothing in Section 353 to limit its application to such deserving circumstances. Unless reversed here, the lower courts' interpretation can be extended to criminalize innocent and socially beneficial conduct, including farming, in which no actual harm to an animal even results. Mr. Basile's case is part of a larger and dangerous trend of overcriminalization in the American justice system. Prosecutions under criminal 4 statutes with vague, weak or non-existent mens rea requirements are proliferating to make criminals out of well-intentioned individuals doing their best to remain law-abiding. This problem has earned the attention and rightful concern of criminal justice organizations and experts spanning the political spectrum and elected officials on both sides of the aisle. Strict liability criminal offenses and related problems of "overcriminalization" have been the subject of task forces and numerous bipartisan hearings before the U.S. House of Representatives. Section 353 presents the same potential pitfalls, and poses the same potential danger, as the laws that were the subject of those congressional hearings. This Court should take action to protect the innocent from such unjust prosecution and punishment here. The criminal law should be written so that anyone who wants to obey it can do so. If you do not engage in inherently wrongful conduct and do not have any idea that your conduct is unlawful, the rule of law means you should have no fear of imprisonment or other criminal punishment. By contrast, strict liability subjects innocent individuals to virtually unfettered prosecutorial discretion at every stage of the criminal process. This in turn creates a danger that defendants will be targeted based on improper factors such as bias, public pressure, or politics. Dispensing with mens rea in a statute like Section 353 also has the potential to disproportionately harm the most powerless and vulnerable members of New York's population, who inevitably encounter greater difficulties in providing 5 sustenance and medical attention to their pets than more well-off members of society. The need for statutory mens rea protection is particularly vital where, as here, the public perception of the primary purpose of the statute (preventing cruelty against animals) is widely seen as an unequivocal good. Any prosecution in which an animal is shown to have been undernourished or not given medical care naturally arouses a jury's sympathies. It is imperative that the jury be clearly instructed that it must find some kind of culpable mental state. Anything less would open the floodgates and allow an unacceptable degree of prosecutorial discretion. In sum, the lower courts' interpretation of Section 353 is contrary to the New York Penal Law's and this Court's strong presumption against strict liability criminal punishment. Allowing prosecution on a strict liability theory undermines the respect and confidence that the People and the state criminal justice system should always engender among New Yorkers. This Court should reject the lower courts' interpretation of Section 353 and reverse Mr. Basile's conviction. 6 ARGUMENT I. The Mens Rea Requirement is a Fundamental Tenet of Criminal Law. Nothing is more essential to protect innocent New Yorkers against unjust criminal conviction and punishment than ensuring that every criminal offense includes an adequate mens rea requirement. Criminal prosecution and punishment constitute the greatest power that government routinely uses against its own people,' and the fundamental insight that only those with a "guilty mind" should be convicted of a crime is part of the backbone of any modern society's criminal justice system. When the U.S. Supreme Court unanimously overturned Joseph Edward Morissette's conviction for stealing and converting federal property, former U.S. Attorney General and Nuremberg prosecutor Robert Jackson wrote for the Court: The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. Morissette v. United States, 342 U.S. 246, 250 (1952); Staples v. United States, 511 U.S. 600, 605 (1994) ("[The] existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence."); cf. I See Herbert Wechsler, The Challenge of a Model Penal Code, 65 Harv. L. Rev. 905, 908 (1939). 7 Smith v. Wade, 461 U.S. 30, 69 (1983) (Rehnquist, J., dissenting) ("There is only one criterion by which the guilt of men is to be tested. It is whether the mind is criminal. [...] It is therefore the principal of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it cannot exist.') (quoting 1 J. Bishop, Criminal Law §§ 285-287 (5th ed. 1872)). The need for an express, clear, and adequate mens rea requirement is even greater in criminal offenses punishing conduct that is not inherently wrongful. Where conduct is wrongful only because it is prohibited by law (malum prohibitum), an individual should not be presumed to know that his conduct was unlawful or sufficiently wrongful so as to put him on notice of possible criminal liability. As the distinguished criminal law expert Joshua Dressler has explained, due to the enormous proliferation of malum prohibitum criminal offenses in state and federal criminal law, "even a person with a clear moral compass is frequently unable to determine accurately whether particular conduct is prohibited." Joshua Dressler, Understanding Criminal Law 166 (3d ed. 2001). And, because so many criminal statutes are "exceedingly intricate," today a "person can reasonably be mistaken about the law." Id. Particularly when set against this legal backdrop, the notion that the government can "subject defendants entirely free from moral blameworthiness to the possibility of prison sentences is revolting to the community sense of justice." 8 Francis B. Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55, 72 (1933).2 Our society's correct instinct against imposing criminal punishment for conduct a person could not and does not know in advance is unlawful is so fundamental that "fair notice" has been recognized as a component of the U.S. Constitution's due process protections. See Bouie v. City of Columbia, 378 U.S. 347, 350 (1964) (emphasizing that constitutional due process requires that a "criminal statute give fair warning of the conduct which it prohibits"). Far from theoretical or academic, the bedrock notion that proving mens rea is essential before imposing criminal punishment is a matter of well-settled U.S. Supreme Court precedent. See, e.g., Morissette, supra, 342 U.S. at 250 (interpreting "knowingly" requirement in federal theft and conversion statute to require knowledge of the facts making the conversion of property unlawful); Staples, 511 U.S. at 605 (interpreting National Firearms Act's prohibition against receipt or possession of an automatic weapon as requiring proof that defendant knew of the features of the weapon that brought it within the scope of the Act); United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994) (interpreting "knowingly" requirement to apply to each phrase of the Protection of Children 2 Professor Sayre affirmed mens rea as a fundamental protection against unjust punishment even though other scholars have concluded that his law review article coined the term "public welfare offenses." See Dr. John S. Baker, Jr. & William J. Haun, The "Mens Rea" Component Within The Issue of the Over-Federalization of Crime, J. of the Federalist Soc. for L. and Pub. Pol'y Studies (Vol. 14, Issue 2) (July 2013). 9 Against Sexual Exploitation Act); Liparota v. United States, 471 U.S. 419, 426 (1985) (interpreting the mens rea term "knowingly" to require knowledge that one's conduct violated the law). So too is the notion that defendants facing liability under vague or overbroad criminal statutes are entitled to have such ambiguous laws interpreted in their favor. See, e.g., United States v. Santos, 553 U.S. 507, 514 (2008) ("This venerable rule [of lenity] vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed."). Fortunately for the people of New York, this State's law is decidedly in accord with the principle requiring proof of mens rea before imposing criminal punishment. Indeed, the New York Penal Law places an express obligation on the courts to presume against strict liability in interpreting criminal statutes like Section 353. As Section 15.15(2) of the Penal Law makes clear, a "statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability." (Emphasis added.) Section 15.15 expressly states that this presumption against strict liability "applies to offenses defined both in and outside" the Penal Law. Section 353 includes terms (such as "unjustifiably" and "willfully") that are, and that are very similar to, terms the criminal law commonly uses to require that a conviction be based on proof of mens rea. Further, even giving Section 353 the 10 strongest reasonable reading in favor of the Respondent here, it is at most ambiguous and unclear whether the New York legislature intended for Section 353 to be a strict liability crime. See Brief of Defendant-Appellant at 20-25, People v. Basile, lv. granted upon reconsideration, 22 N.Y.3d 1137 (2014) (APL-2014- 00038). Yet, the lower courts did not apply Section 15.15's presumption against strict criminal liability. This error alone is sufficient to decide this case in Mr. Basile's favor and reverse his conviction. Moreover, this Court has a long and consistent tradition of applying Section 15.15 to reject improper insinuations of strict liability into criminal statutes that, like Section 353, include no clear legislative intent to dispense with a mens rea requirement. See Brief of Defendant-Appellant, supra, at 18-19 (citing People v. Ryan, 82 N.Y.2d 497, 502 (1993) (possession of a controlled substance under N.Y. Penal Law); People v. Williams, 81 N.Y.2d 303, 316 (1993) (forcible rape under N.Y. Penal Law); People v. Coe, 71 N.Y.2d 852, 855 (1988) (elder abuse under public health statute); People v. Chesler, 50 N.Y.2d 203, 209 (1980) (misapplication of funds under the Lien Law)). Unsurprisingly, then, an extensive recent scholarly study of the impact of state culpability rules concluded that New York has a "strong record of inferring culpability requirements" into criminal statutes. See Darryl K. Brown, Criminal Law Reform and the Persistence of Strict Liability, 62 Duke L.J. 285, 320-21 (2012). 11 In short, New York statutory and case law are fully in accord with American law's strong and long-standing presumption that criminal punishment requires proof of mens rea. A man cannot—and should not—be found guilty of a "crime" unless he possesses the guilty mind required to actually commit one. While Section 15.15 allows the Legislature to make Mr. Basile's conduct criminal notwithstanding his lack of intent to harm the dog or violate any law, it requires the Legislature to "clearly indicate" its intent to do so. The Legislature has not done so in Section 353, so strict liability cannot apply. II. Affirming the Appellate Court's Holding Would Set a Dangerous Precedent Within and Beyond the Animal Cruelty Context, Threatening Other Unsuspecting New Yorkers with Criminal Punishment. As a matter of New York statute and case law, strict liability should not have been imposed here. There is nothing inherently wrongful about being indigent and unable to afford to adequately feed your dog. Nor is it inherently wrongful to feed your dog the only food left over after feeding yourself.3 And, there is no clear 3 As background, the conduct prohibited by Section 353 was made a crime after Henry Bergh petitioned the Legislature to make it one. See David Favre & Vivien Tsang, The Development of Anti-Cruelty Laws During the 1800's, 1993 Det. Coll. L. Rev. 1, 15-16 (1993). Bergh was the socially and politically well-connected New Yorker who founded the American Society for the Prevention of Cruelty to Animals ("ASPCA"). See id. at 13-14. Section 353 vests Mr. Bergh's private organization with the extraordinary authority to arrest alleged violators of the very law for which he successfully lobbied. Id. at 17. Using private agents tasked with a single mission to enforce the law creates an even greater risk that Section 353 will be over-enforced—or enforced in a way that disproportionately impacts New York's most vulnerable population—than would enforcement by general police agents subject to the normal checks and balances. The need for a mens rea requirement is therefore even more imperative under the circumstances presented here. 12 legislative intent to dispense with a mens rea requirement under Section 353. Convicting Mr. Basile of a crime and sentencing him to three years' probation and 45 days of community service, therefore, violated both the spirit and the letter of the law. In circumstances such as those presented in this case, imposing strict criminal liability levies a severe human toll. On top of having been indigent, Mr. Basile is now deemed to be a criminal, a status with serious collateral consequences that could follow this young man for the remainder of his life. Labeling individuals like Mr. Basile "criminals"—when they lack the mens rea to have even committed a "crime" in the first place—has destructive repercussions. An installment piece in an award-winning series on the effects of overcriminalization described the repercussions as follows: [M]isdemeanors[ ] typically carry jail terms of up to a year. Though less serious than felonies, the possible impact of a misdemeanor conviction on getting a job or a loan or other aspects of everyday life "can be quite grave," says Prof. Robert Boruchowitz of Seattle University law school, who has studied the issue. "You have a large community of people who are not considered criminals in the traditional sense," living with the consequences "for the rest of their lives," says Lisa Wayne, president of the National Association of Criminal Defense Lawyers. Applications for jobs, loans and occupational licenses—ranging from auctioneers to plumbers—ask about a person's criminal history. While a conviction is rarely an automatic disqualification, it can often tip the balance against an applicant, observers say. 13 A misdemeanor conviction can restrict international travel and make joining the military harder. It "can be disqualifying" for anyone seeking federal employment, "though the decision is made on a case- by-case basis depending upon a number of factors," says Angela Bailey of the U.S. Office of Personnel Management. Gary Fields & John R. Emshwiller, A Sewage Blunder Earns Engineer a Criminal Record, The Wall Street Journal, Dec. 12, 2011, at 4 (discussing overcriminalization and the erosion of mens rea requirements in federal law).4 To subject an individual to sanctions such as the above is a grave act, and one that should be undertaken only in circumstances that truly warrant such severity. When engaged in with mens rea, actual animal cruelty and abuse certainly warrant such severity. However, under the lower court's interpretation in this case, Section 353 is not so limited and does nothing to prevent conviction of a defendant whose conduct was not inherently wrongful and who neither intended to violate the law nor knew that his conduct was unlawful. Indeed, as with all strict liability offenses, the government need not prove the defendant knew anything at all. As such, a finding that Section 353 imposes strict criminal liability will not just affect individuals like Mr. Basile who, despite giving his dog insufficient nourishment, would very likely have been found not guilty under a statutory 4 The National Press Foundation awarded Messrs. Fields and Emshwiller its "Feddie" Award for Reporting on Federal Rules and Local Impact in 2011 for their "Federal Offenses" series concerning the overcriminalization of federal law. http://nationalpress.org/awards/winner/gary- fields-john-emshwiller/. This and the other Fields-Emshwiller articles cited herein are installments from that series. 14 interpretation that considered mens rea. Rather, imposing strict liability under Section 353 has the potential to ensnare individuals engaged in the most socially beneficial conduct, including farming, in which no actual harm to an animal even results. To criminalize innocent and socially beneficial conduct violates the very principles on which this country's criminal justice system was founded, not to mention common sense. Yet, that is precisely the effect that imposing strict criminal liability under Section 353 will have on the citizens of this State. Given that an estimated 50.6% of New York households owned a pet in 2012, the theoretical coverage of a strict liability application of Section 353 is enormous and entirely unmanageable. See Press Release, AVMA Releases New Stats on Pet Ownership, Ranking Top/Bottom 10 States, Jan. 15, 2013 (highlighting key data in the American Veterinary Medical Association's 2012 U.S. Pet Ownership & Demographics Sourcebook).5 This Court should not endorse a statutory interpretation that criminalizes even innocent conduct and has the potential to affect one in every two households, and to send virtually every pet owner in the City of New York to Rikers Island. To do so would also run counter to this State's more than decade-long effort to reduce its prison population. See generally Marc 5 The American Veterinary Medical Association's survey, which is conducted every five years, is based on numbers as of December 31, 2011. 15 Mauer & Nazgol Ghandnoosh, The Sentencing Project, Policy Brief Fewer Prisons, Less Crime: A Tale of Three States, at 5-6 (July 2014) (discussing a few of the policy and practice changes that may have contributed to the 26 percent reduction in New York's prison population between 1999 and 2012); see also Democratic Members of Over-Criminalization Task Force, Democratic Views on Criminal Justice Reforms Raised Before the Over-Criminalization Task Force & the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, 113th Cong. at 90 (Dec. 16, 2014) (noting that by 2011, "New York reduced its prison population by 20% and saved its taxpayers $72 million in FY 2011 alone while its crime rate has remained low"). III. Despite the Strong Presumption Against Strict Liability, Its Application Persists in the Law. Notwithstanding the strong presumption against strict liability, modern courts often merely give lip service to the presumption before applying strict liability anyway—or, like the lower courts in Mr. Basile's case, they do not even acknowledge the presumption at all. Unfortunately, cases like Mr. Basile's are part of a larger, disturbing trend of overcriminalization in the American criminal justice system. The following cases are but a sampling of the ever-increasing list of individuals who have been prosecuted and, in many cases, spent time in prison, for committing acts which are not inherently wrongful, and which they did not know were prohibited by law: 16 • In 2008, commercial fisherman Robert Eldridge was convicted of a misdemeanor and fined $500 under the federal Endangered Species Act and Marine Mammal Protection Act for disentangling a humpback whale from his fishing-boat net instead of calling licensed rescue workers. While Mr. Eldridge was aware of the law, he thought he was doing the "right thing" by keeping the whale alive. Gary Fields & John R. Emshwiller, As Federal Crime List Grows, Threshold of Guilt Declines, The Wall Street Journal, Sept. 27, 2011, at 5-6; • In 2003, Wade Martin was convicted of a misdemeanor and given two years' probation and a $1,000 fine under the federal Marine Mammal Protection Act for selling sea-otters to a non-native Alaskan, despite believing that the buyer was in fact a native Alaskan, and that the transaction was therefore lawful. Id. at 1-2; and • In 1999, small business owner Abner Schoenwetter was convicted of multiple felonies and sentenced to 69 months of imprisonment all founded on a strict liability provision in the federal Lacey Act—which makes it a felony to import fish or wildlife if it violates any other nation's laws or regulations. The prosecution hinged on a Honduran regulation, which ostensibly prohibited importing the wrong kinds of lobsters and bulk packaging them in plastic, rather than separately in boxes. Mr. Schoenwetter was convicted despite having no knowledge that what he did was illegal and despite the Honduran government's having supported his defense and the Honduran regulations under which he was convicted being repealed or voided thereafter. Gary Fields & John R. Emshwiller, As Criminal Laws Proliferate, More Are Ensnared, The Wall Street Journal, July 23, 2011, at 6-7. To be clear, if the legislative authority makes a judgment that a criminal sanction is necessary to enforce a social or public welfare goal, and clearly announces that one or more elements of the offense do not require mens rea, then the courts would generally uphold the legislative prerogative to do so, at least where there is a clear public welfare component. The role of the courts, however, is two-fold: (1) to determine whether a statute is fairly classified as one of that minority of criminal 17 statutes that is enacted as a public welfare protection, and (2) that the language of the statute is absolutely clear that mens rea is dispensed with. The language of Section 353 under which Mr. Basile was charged can satisfy neither of these tests. The unjust criminal punishment of individuals under strict liability criminal laws has long been the subject of scholarly criticism.6 More recently, the proliferation and use of criminal statutes with vague, weak or non-existent mens rea requirements to make criminals out of well-intentioned individuals doing their best to remain law-abiding has earned the attention and rightful concern of criminal-justice organizations and experts spanning the political spectrum and elected officials on both sides of the aisle. Bipartisan congressional hearings on the detrimental effects of overcriminalization began being held before the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland 6 See, e.g., Stephen F. Smith, Overcoming Overcriminalization, 102 J. Crim. L. & Criminology 537, 539 (2012) ("Courts bear a large share of the blame for overcriminalization, given their penchant to construe ambiguous criminal statutes broadly in a misguided quest to ensure that morally blameworthy offenders will not escape conviction."); Darryl K. Brown, Criminal Law 's Unfortunate Triumph Over Administrative Law, 7 J.L. Econ. & Pol'y 657, 658 (2011) ("[N]early all [criminal-law scholars and policy advocates] agree: American criminal law is in some important respects too expansive according to two sorts of criteria: the kinds of conduct and harm that government ought properly to treat as criminal, and the requirements of crime definitions governments should use even when they address some activity that properly can be criminalized—meaning, most importantly, that crimes should nearly always include a mens rea requirement to avoid strict liability."); William J. Stuntz, The Collapse of American Criminal Justice 2-3 (Belknap Press 2013) (2011) (marshaling evidence that at the end of the twentieth century, the American criminal justice system "was the harshest in the history of democratic government"); see also Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law: Hearing Before the H Comm. on the Judiciary, 113th Cong. 12 (2013) (statement of Dr. John S. Baker). 18 Security in July 2009 and September 2010.7 In May 2013, the House Judiciary Committee unanimously created the bipartisan "Over-Criminalization Task Force of 2013" to study and conduct hearings on the problem of overcriminalization. See generally Press Release, Judiciary Committee, House Judiciary Committee Reauthorizes Bipartisan Over-Criminalization Task Force Feb. 5, 2014. Led by Crime Subcommittee Chair James Sensenbrenner (R-WI) and Ranking Member Robert Scott (D-VA), the bipartisan Task Force held ten congressional hearings over its one-year lifespan on topics ranging from the need for adequate mens rea requirements in federal criminal laws to the vast expansion of federal regulatory crimes. In addition, Democratic members of the Task Force released a report expressing their views on the Task Force's work and potential reform solutions. In summarizing those views, Ranking Member Scott described the far-reaching, detrimental effects that overcriminalization has had on some communities. All [that] the slogans and soundbites [like "three strikes and you're out" or "you do the adult crime, you do the adult time"] have achieved is the highest incarceration rate in the world[;] with 5% of the world population, the U.S. has 25% of its prisoners. And adding insult to injury, several recent studies have concluded that our incarceration rate is so high that it has a counterproductive effect—the slogans and soundbites are adding to crime, not preventing it. The 7 Over-criminalization of Conduct/Over-federalization of Criminal Law: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 111th Cong. (2009); Reining in Overcriminalization: Assessing the Problems, Proposing Solutions: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H Comm. on the Judiciary, 111th Cong. (2010). 19 situation is so acute in the minority community that the Children's Defense Fund labels our present incarceration problem as the "Cradle- to-Prison Pipeline." Democratic Members of Over-Criminalization Task Force, Democratic Views on Criminal Justice Reforms Raised Before the Over-Criminalization Task Force & the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, 113th Cong. at 2 (Dec. 16, 2014) (emphasis in original). The report also noted the significant financial costs associated with overcriminalization. Accordingly, the exponential growth in our federal prison population has caused a corresponding dramatic spike in correctional spending. Consequently, the federal prison budget has increased from $1.36 billion for fiscal year 1991 to well over $6 billion this year [2014]. Each dollar spent on federal corrections is a dollar that not only does not go to education, health care, national security, but is also one that deprives the DOJ [Department of Justice] of its funding for victim services, staffing, investigation, and prosecution. Id. at 15 (internal citations omitted). In addition to growing bipartisan recognition of the need for imposing adequate mens rea requirements, the congressional overcriminalization hearings were supported by such ideologically divergent organizations as the American Bar Association, the American Civil Liberties Union, Families Against Mandatory Minimums, the Heritage Foundation, the Manhattan Institute, the National Association of Criminal Defense Lawyers, and the National Federation of Independent Business. See, e.g., Reining in Overcriminalization: Assessing the Problems, Proposing Solutions: Hearing Before the S. Comm. on Crime, 20 Terrorism, and Homeland Sec., 111th Cong. 2 (Sept. 28, 2010) (statement of Brian W. Walsh, Senior Legal Research Fellow, the Heritage Foundation Center for Legal and Judicial Studies).8 A decision by this Court applying the New York Penal Law's strong presumption according to its terms and reversing Mr. Basile's conviction would reinforce the growing message that the rule of law exists not only to punish. The rule of law also protects. If you did not engage in inherently wrongful conduct, if you did not intend to violate the law, and if you did not even know that your conduct was unlawful, you should have nothing to fear from the criminal justice system. Accepting the lower courts' interpretation of Section 353 would only add to the unjustified and avoidable criminal punishment that exists today at the state and federal levels. IV. Imposing Strict Criminal Liability Leaves Enforcement to the Discretion of Prosecutors and Has the Potential to Disproportionately Impact New York's Most Vulnerable Population. To whatever extent this Court might affirm Mr. Basile's conviction and the lower courts' interpretation of Section 353, it would subject the liberty, livelihood, 8 A joint study and report submitted by the Heritage Foundation and the National Association of Criminal Defense Lawyers, which analyzed the effect of non-violent, non-drug criminal offenses in 203 pieces of legislation introduced during the course of the 109th Congress (2005-2006), served as the framework for the second congressional hearing before the U.S. House Subcommittee on Crime, Terrorism, and Homeland Security. See Brian W. Walsh & Tiffany M. Joslyn, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law (April 2010) (available at https://www.nacdl.org/withoutintent/). 21 families, and reputations of law-abiding New Yorkers to the laws of probability and the discretion of prosecutors.9 As discussed below, this is likely to work disproportionately against the most powerless and vulnerable members of New York's population. The vast majority of our nation's prosecutors are highly conscientious professionals committed to doing justice. This amicus assumes that those standards fully apply to every attorney representing the People in this case. Further, combatting actual animal cruelty and abuse is an important goal of the criminal law, a goal no doubt motivating the People here. Nevertheless, not only is Mr. Basile's conviction unjust, his is by no means the only case that will be affected by this Court's holding. Prosecutors are only human. All people—even conscientious professionals and even prosecutors—are capable of undervaluing or discounting crucial facts, forming and adhering to opinions that are not dispassionate, and making similar mistakes of judgment. The law should be written so anyone who wants to obey it can avoid being punished as a criminal. In the context of the criminal law, 9 As criminal defense and civil rights attorney Harvey Silverglate characterized the problem of overcriminalization under federal law, there are so many vague, overbroad criminal offenses in federal law that "it is only a slight exaggeration to say that the average busy professional in this country [is] ... unaware that he or she likely commit[s] several federal crimes [each] day." Harvey A. Silverglate, Three Felonies a Day: How the Feds Target the Innocent, xxx (2009). This Court should not countenance an interpretation of Section 353 that contributes to this epidemic on the state level. 22 requiring prosecutors to present judge or jury with proof beyond a reasonable doubt of mens rea ensures that only those who have committed sufficiently culpable acts suffer society's greatest sanction and censure. See Susan Pilcher, Ignorance, Discretion and the Fairness of Notice: Confronting "Apparent Innocence" in the Criminal Law, 33 Am. Crim. L. Rev. 1, 5 (1995) (arguing that "in an era of rapidly expanding criminal liability ... existing mechanisms for discretionary application of the law (prosecutorial and sentencing discretion, jury nullification, executive clemency)" are no longer adequate "to ensure that enforcement is consistent with common notions of justice"). Strict liability criminal offenses subject citizens to prosecutorial discretion at virtually every stage of the criminal process. As explained by one commentator: From the arrest of a suspect to the sentencing of a defendant, consider the range of discretion-based decisions that prosecutors must make on a daily basis: Should an arrested citizen be charged with a crime? At what level should bail be recommended? Should bail be opposed? What crime or crimes will be charged? Should charges be dropped? Should a plea bargain be offered or negotiated? Which prosecuting attorney will prosecute which alleged crime? What will the trial strategy be? Will minority jurors be challenged for cause or with peremptory challenges? What sentence will be recommended? Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795, 796-97 (2012). The risk of a prosecutor misusing his or her discretion in any one case increases exponentially when he or she can gain a conviction without proving mens 23 rea for conduct that is not inherently wrongful, not intentional, and not generally considered to be wrongful. How many reasonable New Yorkers are likely to think that a jobless, indigent man can be convicted of animal abuse for being unable to adequately feed his dog? Where mens rea need not be proved, the power of prosecutorial discretion is amplified at every stage of the case. As one commentator noted, affording prosecutors such broad and almost unfettered discretion results in a situation where "society's most fundamental sanctions will be imposed arbitrarily and capriciously and ... the least favored members of the community—racial and ethnic minorities, social outcasts, [and] the poor—will be treated most harshly." James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1555 (1981).10 A strict liability reading of Section 353—even in the hands of the most well- intentioned prosecutors—has the potential to disproportionately harm New York's most vulnerable population. At the arrest stage, pet owners who are homeless or intermittently homeless, or whose pets spend a significant time outdoors, are likely to be targeted for violations of Section 353 at a higher rate than their counterparts '0 While there is no suggestion of bias in this case, the idea that some prosecutors "might be partially responsible for propagating inequality in the criminal justice system is far from new." Robert J. Smith and Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795, 796-97 (2012) (citing, inter alia, Jeffrey J. Pokorak, Probing the Capital Prosecutor's Perspective: Race of the Discretionary Actors, 83 Cornell L. Rev. 1811, 1819 (1998) (considering unconscious biases produced due to similarities between prosecutors and victims)). 24 with stable housing conditions. At the arraignment stage, individuals who cannot afford to post even meager bail are likely to be sent to jail, while their wealthier counterparts return home. See Mosi Secret, NY.C. Misdemeanor Defendants Lack Bail Money, The New York Times, Dec. 2, 2010, at 1 (discussing report examining bail conditions for people charged with non-felonies, which found that "the overwhelming majority of defendants in cases in which bail was set at $1,000 or less were unable to pay and were sent to jail, where they remained, on average, for more than two weeks"); cf. Douglas L. Colbert, Ray Paternoster & Shawn Bushway, Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail, 23 Cardozo L. Rev. 1719, 1763 (May 2002) (summarizing evidence that "[p]retrial detainees are more likely to be convicted and to receive a harsher sentence than people freed pending trial") (citations omitted). At the pre-trial stage, defendants who can afford an attorney and a financial bargaining position may be able to strike a plea bargain that avoids criminal conviction, while their counterparts without financial means are faced with only the prospect of trial. See Douglas L. Colbert, Prosecution Without Representation, 59 Buffalo L. Rev. 333, 346-47 (April 2011) ("Defendants without a lawyer are more likely to face bails they cannot afford and as a result, lose their liberty without having been found guilty. Some who maintain their innocence ultimately plead guilty to avoid further incarceration until trial.") (internal citations 25 omitted). Given the near-certainty of conviction under a strict liability standard and a likely inability to pay for prolonged legal representation, poor defendants may therefore end up pleading guilty to a crime they had no intention or awareness of committing, while their wealthier counterparts escape without conviction. See generally Paul J. Larkin, Jr., Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause, 37 Harv. J.L. & Pub. Pol'y 1065, 1068 (2014) ("As a procedural matter, strict liability offenses make charges remarkably easy to prosecute."); Laurie L. Levenson, Good Faith Defenses: Reshaping Strict Liability Crimes, 78 Cornell L. Rev. 401, 404 (1993) ("The strict liability doctrine affords both an efficient and nearly guaranteed way to convict defendants."). The disadvantage and greater injustice that strict liability crimes impose on powerless and indigent individuals continue even into the sentencing phase, where such individuals are significantly less likely to have highly effective counsel—and more likely to receive stricter sentences—than their more well-connected and affluent counterparts. See Richard Klein, The Emperor Gideon Has No Clothes: The Empty Promise of the Constitutional Right to Effective Assistance of Counsel, 13 Hastings Const. L.Q. 625, 675 (1986) ("The same caseload pressures on the [public] defender which inhibit effective investigations, case preparation, and consultations with the client, also inhibit counsel from attempting that which, albeit time- consuming, may be of great help to their clients at the time of sentencing.") 26 (citations omitted); Norman Lefstein, ABA Standing Committee on Legal Aid and Indigent Defendants, Criminal Defense Services for the Poor—Methods and Programs for Providing Legal Representation and the Need for Adequate Financing (May 1982) (compiling assessments of indigent defense services in various jurisdictions, which identified inadequate preparation for sentencing hearings including a failure to pursue alternative sentencing arrangements)). Simply requiring the prosecution to prove mens rea forecloses the possibility that individuals in these vulnerable populations who never intended to violate the law and did not even know their conduct was unlawful will receive these unequal sentences. Without a mens rea requirement, there is a risk that even the most well- intentioned of prosecutors will apply Section 353 in a way that effectively—and unjustly—punishes individuals for their status, and not their actions. Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972) (striking down vagrancy statute because it furnished the executive with "a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure [and] result[ed] in a regime in which the poor and the unpopular [we]re permitted to stand on a public sidewalk ... only at the whim of any police officer" in violation of their due process and equal protection rights) (internal citation and quotation omitted); Bearden v. 27 Georgia, 461 U.S. 660, 672-73 (1983) (holding it is "contrary to the fundamental fairness required by the Fourteenth Amendment" to "deprive [a person] of his ... freedom simply because, through no fault of his own, he cannot pay"). More broadly, strict liability crimes undermine respect for the justice system by opening the door to accusations of selective, vindictive, and politically motivated prosecutions. Where the People can point to strong evidence of mens rea, many such accusations lose their force. But where a prosecutor's discretion reigns, every decision that prosecutor makes along the way—such as whether to request bail, offer a plea, or even proceed with Section 353 charges against an individual in the first place—is at risk of being affected (or of being perceived as affected) by political motivations or public pressure to target the less powerful and less popular for alleged wrongdoing. This pressure can often be based on the media's attention or the public's perception. See Rachel Brand, Making It a Federal Case: An Inside View of the Pressures to Federalize Crime, Heritage Found. L. Memo. No. 30, Aug. 29, 2008, at 2-4 (noting author's observations when serving as Assistant U.S. Attorney General for Legal Policy of the effects of such pressure on federal law enforcement and Congress); see generally Sanford C. Gordon & Gregory A. Huber, The Political Economy of Prosecution, 5 Ann. Rev. L. & Soc. Sci. 135, 136 (2009) (noting the inevitable political pressures to "secure high conviction rates" facing prosecutors who must run for reelection). These 28 considerations have little or nothing to do with an individual's legal culpability or sound principles of justice. The People have indicated that such considerations exist with respect to cases they deem to be similar to Mr. Basile's. As stated in their opposition brief: "it is clear that the public views cases of animal cruelty as important to prosecute in light of the heightening publicizing of cases involving animal abuse." Brief of Respondent at 46, People v. Basile, lv. granted upon reconsideration, 22 N.Y.3d 1137 (2014) (APL-2014-00038). Of course, the existence of such considerations is virtually indisputable. According to the ASPCA, "70 arrests took place in the first six months of [2014]—more than twice the number ... over the same period last year." Annmarie Fertoli, NYPD's Involvement Hikes Arrests for Animal Cruelty, WNYC (Aug. 4, 2014); see also Bradley Hope, With the Public's Help, ASPCA Better Tackles Crime, The New York Sun (Jan. 5, 2007) ("A growing public perception of animal cruelty and new resources have led the law enforcement arm of the [ASPCA] to [a] more than 400% surge in arrests since 1999, the agency reported."). The increased public pressure to convict alleged animal abusers was also discussed in a recent article series in The New York Times, which noted that animal activists "have come to wield real power" in the fight against animal abuse by, inter alia, "offer[ing] rewards to potential witnesses to animal abuse; train[ing] prosecutors; and ma[king] inroads in pushing law enforcement across the country 29 to arrest, and seek jail time for, animal abusers." Katherine Schulten, Should You Go to Jail for Kicking a Cat?, The New York Times, Oct. 1, 2014, at 1-2. The need for statutory mens rea protection is particularly vital where, as here, the public perception of the primary purpose of the statute (preventing cruelty against animals) is widely seen as an unequivocal good. Any prosecution in which an animal is shown to have been undernourished or not given medical care later deemed by an expert to have been necessary naturally arouses a jury's sympathies. It is imperative that the jury be clearly instructed that it must find some kind of culpable mental state. Anything less would open the floodgates and allow an unacceptable degree of prosecutorial discretion. Promoting a statutory interpretation with the potential for that level of injustice turns this country's traditional values of criminal justice upside down. At bottom, the unfairness of selective prosecutions harms Americans in some vulnerable populations more than others. Strict liability criminal laws greatly undermine the respect and confidence that the People and the state criminal justice system should always engender among New Yorkers. In addition to being contrary to the New York Penal Law's and this Court's strong presumption against strict liability criminal punishment, the lower courts' interpretation of Section 353 creates excessive prosecutorial discretion and opens the door to persuasive 30 accusations of prosecutorial bias and other misconduct. Such an interpretation should not be countenanced. CONCLUSION For all of the foregoing reasons, and those stated by Defendant-Appellant Curtis Basile, the decision of the Appellate Term, Second Department, for the Second, Eleventh and Thirteenth Judicial Districts should be reversed. Respectfully submitted, Date: May 7, 2015 ALSTON & BIRD LLP By: Daniella P. Main Alston & Bird LLP 90 Park Avenue New York, New York 10016 (212) 210-9400 daniella.main@alston. corn Counsel for Amicus Curiae Civil Rights Research Center 31 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) SS: COUNTY OF NEW YORK ) Jeannine Grudzien, being duly sworn, deposes and says that: I am over the age of 18 and not a party to this action; I am an employee of Alston & Bird LLP, attorneys for Amicus Curiae Civil Rights Research Center and on May 7, 2015, I served three (3) true and correct copies of the Brief of Amicus Curiae Civil Rights Research Center by depositing the same with UPS Overnight Mail in a wrapper properly addressed. Said delivery was made prior to the latest time designated by the overnight delivery service for delivery on May 7, 2015 to the addresses indicated below: Richard A. Brown District Attorney Queens County 125-01 Queens Boulevard Kew Gardens, New York 11415 Attorney for Respondent David Crow The Legal Aid Society 199 Water Street, 5th Floor New York, New York 10038 Attorney for Defendant-Appellant Ben A. Schatz Cahill Gordon & Reindel LLP 80 Pine Street New York, New York 10005 Attorney for Defendant-Appellant 9,7‘11//ithe-t eannine G idzien Sworn to before me this -74--.< day of May, 2015 Notary Public MICHAEL J. MALLOY NOTARY PUBLIC, State of New York No 41 -4914497 Qualified in New York County /(-7 Commission Expires June 2, 20 3 LEGAL02/35539561v1