Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Robert D. Kalish, J., at suppression hearing; Dena E. Douglas, J. at trial and sentencing), rendered October 14, 2010. The judgment convicted defendant, upon a jury verdict, of animal cruelty.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with violating Agriculture and Markets Law § 353. At defendant's arraignment, the People filed a CPL 710. 30 notice of a statement they intended to introduce at trial and, subsequently, filed an amended notice that allegedly provided the "sum and substance" of the statement defendant had made to an ASPCA agent on December 11, 2008. Defendant moved to suppress the statement, and a Huntley hearing was held (see People v Huntley, 15 NY2d 72 [1965]). At the hearing, the agent testified as to additional statements that defendant had made to her on December 11th. At the conclusion of the hearing, defense counsel requested that all statements, including the unnoticed statements, be suppressed. The Criminal Court denied defendant's motion. Following a jury trial, defendant was convicted of the charged offense. [*2]

On appeal, defendant contends that his judgment of conviction should be reversed because the accusatory instrument was facially insufficient; that the People should have been precluded from offering those statements that had not been timely disclosed; that the evidence was legally insufficient and the verdict against the weight of the evidence; that he was deprived of a fair trial due to various evidentiary errors such as the admission of a veterinarian's report, comments by the prosecutor, and the content of the court's readback to the jury; that his motion for a mistrial should have been granted; and that Agriculture and Markets Law § 353 is void for vagueness, as applied to the facts of this case.

Section 353 of the Agriculture and Markets Law, "Overdriving, torturing and injuring animals; failure to provide proper sustenance," states as follows:

"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 furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, 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 cruelty."

The pertinent part of the accusatory instrument states as follows:

"Deponent observed a female cane corso (canine) who appeared thin and had a mass like tumor coming from rear end.

Deponent further states that . . . defendant stated in sum and substance that defendant owned said dog that defendant knew dog had a mass on dog's rear end and that defendant did not and would not take said dog to the vet for medical attention.

Deponent is further informed by Dr. Robert Reisman, doctor of veterinary medicine, that the . . . lack of care to the dog caused said dog to suffer needlessly."

Agriculture and Markets Law § 353 prohibits the furtherance of "any act of cruelty to any animal," and "cruelty" is defined as an "act, omission or neglect whereby unjustifiable physical pain, suffering or death is caused or permitted" (Agriculture and Markets Law § 350 [2]). The allegations contained in the factual portion of the information were of sufficient evidentiary character to establish, if true, that defendant had "engage[d] in, or in any way further[ed] any act of cruelty to any animal, or any act tending to produce such cruelty" by allowing the dog to needlessly suffer (see CPL 100.15 [3]; 100.40 [1] [c]; People v Dumas, 68 NY2d 729, 731 [1986]). The accusatory instrument also clearly supplied defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy (see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Kalin, 12 NY3d 225, 231-232 [2009]; People v Casey, 95 NY2d 354, 366 [2000]). Consequently, the Criminal Court properly determined that the [*3]accusatory instrument was not facially insufficient.

When the People intend to offer statements made by a defendant at trial, they must provide a notice of intent to the defendant specifying the "sum and substance" of the statements (see CPL 710.30). However, the notice requirement is excused when a defendant moves for the suppression of the statements (see CPL 710.30 [3]; People v Merrill, 87 NY2d 948 [1996]; People v Lopez, 84 NY2d 425, 428 [1994]). Since defendant moved to suppress the statements at issue, and received a full hearing on their admissibility, it is irrelevant that the CPL 710.30 notice served by the People failed to allege the "sum and substance" of all of the statements they intended to introduce at trial. An application to suppress a statement waives any preclusion argument (see People v Kirkland, 89 NY2d 903, 904 [1996]; People v Velazquez, 33 AD3d 352, 354 [2006]). Consequently, we find that the Criminal Court properly denied defendant's motion to preclude the statements.

The veterinarian report was improperly admitted into evidence because the report contained hearsay and the People failed to show that the report satisfied the business record exception to the hearsay rule (see CPLR 4518). However, since the veterinarian had already testified to so much of the report as was read to the jury, there is no significant probability that the error in admitting the report contributed to defendant's conviction (see People v Ortiz, 46 AD3d 580, 581 [2007]). Therefore, the admission of the report into evidence constituted harmless error (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).

As to the prosecutor's comment regarding defendant's failure to testify at trial, we find that the comment was harmless since it was "not of such character as would naturally and reasonably be interpreted by the jury as an adverse comment on defendant's failure to take the stand" (People v Burke, 72 NY2d 833, 836 [1988]). Moreover, we note that, in its instructions to the jury, the Criminal Court informed the jury that defendant had the right not to testify and the fact that defendant did not testify could not be held against him. A jury is presumed to have followed the legal instructions provided to it by the court (see People v Baker, 14 NY3d 266, 274 [2010]). Consequently, defendant's request for a mistrial due to this comment was properly denied.

Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish defendant's guilt beyond a reasonable doubt. Moreover, resolution of issues of credibility, as well as the weight to be accorded the evidence presented, is to be decided by the trier of fact, which had the opportunity to see and hear the witnesses (see People v Romero, 7 NY3d 633, 643-646 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]), and its determination should be given great deference and should not be disturbed unless it appears that the trier of fact failed to give the evidence the weight it should be accorded (see People v Mateo, 2 NY3d 383, 410 [2004]). Upon a review of the record (see CPL 470.15 [5]; People v Danielson, 9 NY3d 343, 348-349 [2007]), we find that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d at 643-646).

Furthermore, since defendant's conviction can be sustained upon a finding that the evidence proved, beyond a reasonable doubt, that defendant had "engage[d] in, or in any way further[ed] any act of cruelty to any animal, or any act tending to produce such cruelty" by allowing the dog to needlessly suffer (Agriculture and Markets Law § 353), defendant's [*4]contention regarding the constitutionality of Agriculture and Markets Law § 353 with respect to its use of the word "sustenance" will not be addressed by this court. Under the established principles of judicial restraint, where a case may properly be determined on other grounds, a court should refrain from considering challenges brought under the Federal or State Constitutions (see Matter of Syquia v Board of Educ. of Harpursville Cent. School Dist., 80 NY2d 531 [1992]; Matter of Shernise C. [Rhonda R.], 91 AD3d 26, 29 [2011]).

We have reviewed defendant's remaining contentions and find that they are either unpreserved or lack merit.

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: March 15, 2013