[*1]
| People v Fritze |
| 2010 NY Slip Op 51413(U) [28 Misc 3d 1220(A)] |
| Decided on August 12, 2010 |
| District Court Of Nassau County, First District |
| Engel, J. |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
District Court of Nassau County, First District
The People of the State
of New York,
against
Michael Fritze, Defendant.
|
2010NA009192
Hon. Kathleen Rice, Nassau County District Attorney
Attorneys for Defendant: Devane & Groder
Andrew M. Engel, J.
The Defendant is charged with overdriving, torturing, injuring and failing to
provide proper sustenance to animals, abandonment of animals, failing to provide proper food
and drink to an impounded animal and official misconduct, in violation of Agriculture and
Markets Law §§ 353, 355 and 356, and Penal Law § 195.00(2), respectively.
The Defendant now moves for an order dismissing the accusatory instrument as
facially insufficient, pursuant to CPL §§ 170.30(1)(a) and 170.35(1)(a), or, in the
alternative, dismissing in the interests of justice, pursuant to CPL §170.30(1)(g). The
People oppose this motion.
FACIAL SUFFICIENCY
The
information herein will be found facially sufficient where, in conformity with CPL §§
100.15 and 100.40, it contains an accusatory part, designating the offenses charged, CPL §
100.15(2), setting forth every element thereof, People v. Hall, 48 NY2d 927, 425 NYS2d
56 (1979), and a factual part containing "a statement of the complainant alleging facts of an
evidentiary character supporting or tending to support the charges[,]" CPL § 100.15(3)
based upon either the complainant's personal knowledge or upon information and belief. CPL
§ 100.15(3) The factual part, taken together with any supporting depositions, must contain
non-hearsay allegations which, if true, establish every element of the offences charged, People v. Moore, 5 NY3d 725,
800 NYS2d 49 (2005); People v.
Thomas, 4 NY3d 143, 791 NYS2d 68 (2005) "provid[ing] reasonable cause to believe
that the defendant committed the offense[.]" People v. Alejandro, 70 NY2d 133, 517
NYS2d 927 (1987); CPL § 100.40(4)(b) " Reasonable cause to believe that a person has
committed an offense' 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 ordinary intelligence, judgment and experience that it is reasonably likely that such
offense was committed [*2]and that such person committed it."
CPL § 70.20
The factual allegations in the accusatory instrument and supporting depositions
should be viewed in a light most favorable to the People, People v. Martinez, 16 Misc 3d
1111(A), 847 NYS2d 898 (Table), (Dist.Ct. Nassau Co. 2007); People v. Delmonaco, 16 Misc 3d
526, 837 NYS2d 869 (Dist.Ct. Nassau Co. 2007); People v. Mendelson, 15 Misc 3d 925, 834 NYS2d 445 (Dist.Ct.
Nassau Co. 2007) and should not be given an overly restrictive or technical reading, People
v. Casey, 95 NY2d 354, 717 NYS2d 88 (2000); People v. Baumann & Sons Buses, Inc., 6 NY3d 404, 813 NYS2d
27 (2006). They must be sufficient to serve the purpose of providing the Defendant with notice
enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from
again being tried for the same offense. People v. McDermott, 69 NY2d 889, 515 NYS2d
225 (1987); People v. McGuire, 5 NY2d 523, 186 NYS2d 250 (1959) Such a showing is
not the same as the burden of proof beyond a reasonable doubt required at trial. People v.
Swamp, 84 NY2d 725, 622 NYS2d 472 (1995); People v. Porter, 75 AD2d 901, 428
NYS2d 63 (2nd Dept. 1980)
AGRICULTURE AND MARKETS LAW §
353
The information charging the Defendant with a violation of
Agriculture and Markets Law § 353 alleges, in sum and substance, that on February 14,
2010, at approximately 11:00 p.m., the Defendant, an Animal Control Officer for the City of
Long Beach, after taking possession of a cat "with a crushed stomach, mangled jaw, and blood
coming from its mouth[,]" placed the cat in a box, sealed the box and left the box in the
bathroom of the Freeport Animal Shelter, located at 2 Rider Place, Freeport, New York, which
was closed for the night, "without making any efforts to immediately notify shelter personnel or
obtain immediate care for the animal[,]" and failed to "provide a blanket, food, or water for the
cat[,]" "prolong[ing] the cat's suffering until it was found, still alive and severely injured, by
shelter personnel at approximately 9:00 am on February 15, 2010." These allegations are
accompanied by the supporting depositions of Stephanie Cieslik, John Curran, Elyse D'Agostino
and Hal Waldman.
Stephanie Cieslik alleges, inter alia, that she is the Director and Treasurer of
the Freeport Animal Shelter ("the Shelter") and that she works as the "principal liaison between
the shelter, animal control officers and law enforcement agencies, and emergency veterinary
centers." Ms. Cieslik further avers that the Shelter's regular business hours are 11:00 a.m. to 5:00
p.m., on Sundays through Tuesdays, and 11:00 a.m. to 7:00 p.m., on Wednesdays through
Fridays. According to Ms. Cieslik, there is no staff at the Shelter after closing, but she remains
on call twenty-four hours a day, seven days a week. Ms. Cieslik alleges that in the summer of
2009 she personally advised the Defendant how to file a report with the Shelter, where to log
intake forms, where to place incoming animals and advised him of "the emergency contact
procedures for after hours emergency situations involving injured animals." Ms. Cieslik further
alleges that prior to February 14, 2010 she had received several calls from the Defendant in
accordance with the Shelter's police providing for a "Long Beach Animal Control Officer to call
[her] personally on [her] cellular phone whenever an injured animal is recovered (at any time of
day) and then make a determination whether to bring the animal to the shelter or directly to an
emergency veterinarian for immediate care or to be humanely euthanized[;]" but, she did not
receive any such call from him on February 14 or February 15, 2010. Finally, Ms. Cieslik alleges
that on February 18, 2010 she listened to a voicemail left on the Shelter's voicemail system on
February 15, 2010 at approximately 12:30 a.m. by an individual who identified himself as the
Defendant, and whose voice Ms. Cieslik recognized as the Defendant's, in which the Defendant
"states that he had left a cat in the shelter bathroom that was apparently hit by a car and barely
breathing and that he had left paperwork on the desk."
[*3]
The supporting deposition of John Curren, who
is employed as a kennel worker at the Shelter, alleges, inter alia, that on February 15,
2010, at approximately 9:00 a.m., he went into the bathroom at the Shelter and "saw a white
Petco' box, which is the type of box that the Freeport Animal Shelter gives to Long Beach
Animal Control Officers to collect small animals, sitting on the floor in the middle of the
bathroom. The lid on the box was closed and folded shut in such a way that the box was sealed."
Mr. Curren claims that he opened the box and saw a cat inside, "in obvious distress; it wasn't
moving, but it was breathing ... its mouth was completely smashed-up with several teeth crushed.
There was blood coming from its nose and mouth, ... [i]t was wheezing and couldn't take normal
breaths. There was nothing else inside the box: no food, water, blanket, or anything like that. It
was obvious that the cat needed immediate medical care." Mr. Curren further alleges that he took
the cat to be examined by Dr. Hal Waldman, arriving at Dr. Waldman's office at approximately
9:20 a.m. During Dr. Waldman's examination of the cat, Mr. Curren observed that the cat's right
side was crushed-in and saw the cat urinate on the examination table. Finally, Mr. Curren alleges
that on February 18, 2010 he listened to the same voicemail discussed hereinabove and that he
too recognized the voice on the message to be that of the Defendant.
Elyse D'Agostino, another kennel worker at the Shelter, alleges in her supporting
deposition, inter alia, that on February 15, 2010, at approximately 9:00 a.m. she saw a
white "Petco" box in the Shelter's public bathroom with a long-haired brownish cat inside. Ms.
D'Agostino further alleges that she observed the cat "was still breathing, but it appeared to be in
distress. Its jaw appeared to be unhinged, its front paws were twitching, and it obviously needed
some immediate medical treatment ... there was no food, water, blanket, or anything else inside
the box besides the injured cat." Ms. D'Agostino also alleges that she listened to the above
discussed voicemail on February 16, 2010 and that she too recognized the call to be the
Defendant.
Hal Waldman's supporting deposition alleges, inter alia, that he is a doctor
of veterinary medicine; that he is veterinarian for the Shelter and that he is available to them as
an on-call veterinarian for any emergencies. Dr. Waldman further alleges that on February 15,
2010 he was met at the Baldwin Harbor Animal Hospital by representatives of the Shelter who
brought in a cat with "its eyes closed, blood coming from its mouth, with a low heart rate and
cold body temperature. The cat was unconscious but breathing. The cat's face was distorted."
After a brief examination, Dr. Waldman euthanized the cat. Finally, Dr. Waldman alleges that he
did not receive any emergency calls on February 14, 2010 or during the overnight period into
February 15, 2010 from any member of the Long Beach Animal Control or the Shelter.
In seeking dismissal of this count, the Defendant argues that "[n]owhere in the
accusatory instrument is (sic) alleged that the defendant affirmatively injured the
subject." (Groder Affirmation 5/21/10, p. 5) As a consequence thereof, the Defendant
posits, that the portion of the statute which provides for the criminal responsibility of one 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"cannot
possibly apply to the alleged conduct of the Defendant. As to the provisions of the statute which
provide that one may be criminally responsible for "depriv[ing] any animal of necessary
sustenance, food or drink, or neglect[ing] or refus[ing] to furnish it such sustenance or drink," the
Defendant argues that the allegations set forth in the information and the accompanying
supporting depositions do not "establish that any sustenance, food or drink would have been of
benefit to this particular animal." (Groder Affirmation 5/21/10, p. 6) Specifically, the
Defendant argues that "[w]hile the introduction of food or water to this cat may have been a
compassionate gesture it was certainly not necessary under these circumstances." [*4](Groder Affirmation 5/21/10, p. 7) The Defendant further
argues that the cat's "suffering would appear to be irrelevant[;]" (Groder Affirmation
5/21/10, p. 8) and, in any event, the information and the accompanying supporting depositions
do not demonstrate, in evidentiary form, that the cat suffered.
In opposition, the People argue that the term "sustenance," as used in the statute,
includes veterinary care and adequate shelter, in addition to food and drink. The People further
argue that the non-hearsay allegations of the information and supporting depositions properly
demonstrate the extent of the cat's condition, the cat's need for emergency medical care, the
Defendant's knowledge of how to obtain proper medical care, and the Defendant's knowing
failure to obtain necessary medical care and to provide food, water or a blanket for the cat,
sufficient to support the charge under this section.
There are numerous acts and/or knowing omissions which could lead to criminal
responsibility under Agriculture and Markets Law § 353. While the accusatory portion of
the information charging the Defendant with same reiterates every provision of the statute, some
of the prohibited acts or omissions are wholly unsupported by the factual allegations contained in
the information and supporting depositions. Eliminating those provisions which are obviously
irrelevant, or unsupported by the allegations herein, the statute provides:
A person who ... tortures ... 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, ... or permits any
animal to be ... tortured, ... or to be deprived of necessary food or drink, ... or in any way furthers
any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a class A
misdemeanor ....
As indicated hereinabove, the parties focus their arguments on those provisions
addressing the deprivation of "necessary sustenance, food or drink." The question presented then
is whether the information charging the Defendant with a violation of Agriculture and Markets
Law § 353 sufficiently alleges that the Defendant deprived this cat of such sustenance, food
or drink.
It is not disputed that the accusatory instrument sufficiently alleges that the
Defendant did not provide the cat with food or water when he left it at the Shelter. While
Agriculture and Markets Law § 353 requires more than the mere deprivation of food or
water before criminal responsibility will attach, requiring the deprivation of "necessary" food
and water, whether or not such food and water was necessary under the circumstances presented
is a question of fact to be resolved at trial, not as a matter of pleading.
The above notwithstanding, there is no question that the information alleges that the
Defendant deprived the cat necessary medical attention. While there is a difference of opinion
among the few reported cases addressing whether or not "sustenance" includes medical care,
see: People v. O'Rourke, 83 Misc 2d 175, 369 NYS2d 335 (Crim.Ct. NY Co.
1975)["permitting a horse which is limping to continue to work without supplying necessary
medical attention constitutes neglect under the statute."]; People v. Walsh, 19 Misc 3d
1105(A), 859 NYS2d 906 (Crim.Ct. NY Co. 2008) ["the failure to provide an animal with
medical care is not encompassed in the phrase "necessary sustenance."]; People v. Arroyo, 3 Misc 3d 668,
777 NYS2d 836 (Crim.Ct.Kings Co. 2004) ["The court finds that the plain meaning of the term
"sustenance" in the statute does not include medical care."], the issue has been resolved here in
the Tenth Judicial District.
In People v. Mahoney,
9 Misc 3d 101, 804 NYS2d 535 (App.Term 9th & 10th Jud. Dists. 2005) lv. den. 5
NY3d 854, 806 NYS2d 173 (2005) the Appellate Term affirmed the [*5]defendant's conviction under the Agriculture and Markets Law
§ 353 and upheld the trial court's jury instruction to the effect that sustenance "meant the
provision of veterinary care and shelter adequate to maintain health and comfort.'" In People
v. Richardson, 15 Misc 3d 138(A), 841 NYS2d 221 (App.Term 9th & 10th Jud. Dists. 2007)
the court reiterated that "[t]he term sustenance,' as set forth in the statute, has been held to be
distinguishable from the term food or drink' and to include veterinary care and shelter adequate
to maintain the animal's health and comfort (citations omitted)." Whether or not this court agrees
with this interpretation of the statute, it is constrained to follow these holdings.
There is no question that the allegations sufficiently set forth that this cat was
seriously injured. There is also no question that the non-hearsay allegations, including the first
hand observations of those providing supporting depositions and the voicemail identified as
having been left by the Defendant, set forth that the Defendant was aware of the cat's condition
and did not bring the cat for emergency medical care, choosing instead to leave the cat overnight
at the closed Shelter. Under these circumstances, whether or not the cat would have benefitted
from medical care, or such care was necessary, at this point, is a question to be resolved by the
trier of fact. For pleading purposes, it is sufficient.
Additionally, the Defendant overlooks that portion of the statute which provides that
criminal responsibility will attach if it is found that the Defendant "tortured, ... or in any way
further[ed] any act of cruelty ... or any act tending to produce such cruelty[.]"Agriculture and
Markets Law § 353
Agriculture and Markets Law § 350(2) defines "torture" and "cruelty" as "every
act, omission, or neglect, whereby unjustifiable physical pain, suffering or death is caused or
permitted." See: People v.
Sitors, 12 Misc 3d 928, 815 NYS2d 393 (Co.Ct. Schohari Co. 2006) "The test of cruelty
is the justifiability of the act or omission (Vol. 3A, C.J.S. Animals s 101, p. 587)." People v.
O'Rourke, supra . As demonstrated in People v. Walsh, supra ., the failure to provide
medial care to an animal in one's possession or control may constitute torture or cruelty
sufficient to support the charge of a violation of Agriculture and Markets Law § 353.
See also: People v. Curcio,
22 Misc 3d 907, 874 NYS2d 723 (Crim.Ct.Kings Co. 2008)
The Defendant's intent may be established by the Defendant's cognizance of the cat's
condition and his failure to obtain medical care for the cat. See: People v.
Richardson, supra .; People v. O'Rourke, supra .
While the Defendant is correct that "what we know about human consciousness does
not permit us to know about whether suffering occurs in unconsciousness or coma and it
certainly does not allow us into the mind of a cat to know if it is suffering when it is in the state
in which this animal was discovered[,]"(Groder Affirmation 5/21/10, p. 10) viewing the
allegations in a light most favorable to the People, taking into account the cat's bleeding from its
nose and mouth, labored breathing, wheezing and twitching it would not be unreasonable to find
that the cat was suffering pain. Similarly, the issue of whether or not the Defendant was justified
in leaving the cat in the closed Shelter over night in this condition, knowing that there was an
emergency procedure in place to allow this cat to have received immediate medical attention, "is
one left more appropriately for trial." People v. Walsh, supra . "As the matters alleged in
the [information] constitute an omission or neglect' permitting unjustifiable pain or suffering,
[the court] find[s] the [information] to be facially sufficient." People v. Curcio, supra .
Accordingly, that branch of the Defendant's motion seeking to dismiss Count One,
charging a violation of Agriculture and Markets Law § 353, is denied.
[*6]AGRICULTURE AND MARKETS LAW
§ 355
Relying on the same supporting depositions and the allegations contained
therein, Count Two charges the Defendant with a violation of Agriculture and Markets Law
§ 355. Specifically, the information alleges that the Defendant "did abandon said cat
without making proper provisions for its future care."
In relevant part, Agriculture and Markets Law § 355 provides that "A person
being the ... possessor, or having charge or custody of an animal, who abandons such animal, ...
is guilty of a misdemeanor...." The court notes that the statute does not contain the language,
"without making proper provisions for its future care[,]" which the People now seek to graft onto
the statute.
The Defendant argues that the allegations against him fail to demonstrate that he
intended to, or actually did, abandon the cat. To the contrary, the Defendant argues that,
accepting the allegations as true, "he ultimately transported [the cat] to the Freeport Animal
Shelter ... [with] the intention ... to hand over this grievously injured cat to someone who could
care for it." (Groder Affirmation 5/21/10, p. 10-11)
The People counter that "the ordinary meaning of the term [abandons] must be
ascribed to it." (Painter Affirmation 6/4/10, ¶ 24) The People suggest that "the
guilty party, at the moment of the crime, leaves an item with intent to permanently depart from
control over it."(Painter Affirmation 6/4/10, ¶ 24)
The sufficiency of this information will depend upon one's definition of "abandons, "
which is not defined in Agriculture and Markets Law § 355.[FN1] In such circumstances, the dictionary meaning
"may be useful as guideposts in determining the sense with which a word was used." Statutes
§ 234 Black's Law Dictionary, Revised Fourth Edition, West Publishing Co., St. Paul,
Minn. 1968, defines "abandon" as "To desert, surrender, forsake, or cede. To relinquish or give
up with intent of never again resuming one's right or interest." Similarly, The New Oxford
American Dictionary, Oxford University Press, 2001, defines "abandon" as "cease to support or
look after (someone); desert" and "condemn someone or something to (a specified fate) by
ceasing to take an interest in or look after them."
Whether or not the Defendant abandoned this cat or, as he suggests, left if for
someone who could care for it, is a question of fact. Viewing the non-hearsay allegations in a
light most favorable to the People, they set forth that the Defendant possessed, had custody and
control of the cat and deserted the animal in a building which he knew would be unattended
overnight, and ceased to take an interest in or look after the cat. See: People v.
Rogers, 184 Misc 2d 419, 708 NYS2d 795 (App. Term 2nd Dept. 2000)
Accordingly, that branch of the Defendant's motion seeking to dismiss Count One,
charging a violation of Agriculture and Markets Law § 355, is denied.
AGRICULTURE AND MARKETS LAW §
356
Once again, relying on the same supporting depositions and the
allegations contained therein, Count Three charges the Defendant with a violation of Agriculture
and Markets Law § 356. Specifically, the information alleges that the Defendant "having
impounded or confined any animal, did refuse or neglect to supply to such animal during its
confinement a sufficient supply of good and wholesome air, food, shelter and water[.]"
[*7]
The Defendant argues that "[a]n animal, even
one which is healthy, does not need to be fed immediately upon being delivered to an animal
shelter." (Groder Affirmation 5/21/10, p. 12) The Defendant further reiterates that "[o]ne
could scarcely imagine a situation where food or drink would be less helpful to an animal than to
this cat. This particular cat was in absolutely no condition to take nourishment under its own
power." (Groder Affirmation 5/21/10, p. 12)
The People argue that the accusatory instrument sufficiently alleges "through
non-hearsay allegations of fact, ... (a) the animal was confined in a sealed Petco box [and again
confined in a bathroom]; and (b) there was no food, water, or blanket in the box with the animal
during its confinement." (Painter Affirmation 6/4/2010, ¶ 29) The People further
argue that, the cat's condition notwithstanding, food and water could have been provided "by
hand, by bottle, or even intravenously during the course of [its] confinement, impoundment,
and/or treatment." (Painter Affirmation 6/4/2010, ¶ 29)
Once again, the viability of the Defendant's argued defenses will be determined by
the application of the law to the facts as found by the trier of facts. As a matter of pleading, the
allegations contained in the information and the supporting depositions provide " reasonable
cause to believe that the defendant committed the offense charged' (CPL 100.40 [1] [b]); and that
the [n]on-hearsay allegations [of the information and supporting depositions] establish,
if true, every element of the offense charged and the defendant's commission thereof'
(CPL 100.40 [1] [c]; see, CPL 100.15 [3])." People v. Casey, 95 NY2d 354,
717 NYS2d 88 (2000)
Accordingly, that branch of the Defendant's motion seeking to dismiss Count One, charging a
violation of Agriculture and Markets Law § 356, is denied.
PENAL LAW §
195.00(2)
Once again relying on the same supporting depositions and the
allegations contained therein, Count Four of the information charges the Defendant with Official
Misconduct, alleging that the Defendant "with intent to obtain a benefit or deprive another
person of a benefit he did knowingly refrain from performing a duty which was imposed upon
him by law or was clearly inherent in the nature of his office."
The Defendant argues that he following the policies and procedures of the Shelter is
not a duty imposed on him by law. The Defendant further argues that "[n]owhere in any of the
four corners of the accusatory instrument is there any hint of any benefit either being gained by
the defendant or a deprivation of same accruing to the detriment of anyone else." (Groder
Affirmation 5/21/10, p. 13)
The People argue that "the duty of rescuing and properly sheltering a distressed
animal is inherent in the nature of his role as a Long Beach Animal Control Officer." (Painter
Affirmation 6/4/2010, ¶ 33) The People also argue that the Defendant benefitted in
failing to follow the "directions of the shelter director and thus saving himself the hassle of
arranging for proper care for the animal." (Painter Affirmation 6/4/2010, ¶ 36) The
People further argue that the Defendant deprived the Shelter of the benefit of fulfilling its duty to
"effectively care for animals brought to it from the City of Long Beach[]" (Painter
Affirmation 6/4/2010, ¶ 36) and deprived "the anonymous Long Beach taxpayer who
owned this animal in question, paying City taxes to support the operation of the Long Beach
Animal Control and the Freeport Animal Shelter, [of] a reasonable expectation that, if its animal
became disabled or was ever collected by Animal Control, that such animal would have been
cared for appropriately." (Painter Affirmation 6/4/2010, ¶ 36)
While it may be arguable whether or not the Defendant refrained from performing a
duty either imposed upon him by law or clearly inherent in the nature of his office, there is no
[*8]question that the information fails to provide any evidentiary
allegation, direct, circumstantial or otherwise, that the Defendant's omission was with the intent
to benefit himself or deprive another of a benefit. The People's argument and prosecution of this
charge on this point borders on the frivolous. "The automatic imposition of criminal sanctions in
this case, based upon some ill-defined benefit ..., does not satisfy the statutory requirements."
People v. Esposito, 160 AD2d 378, 554 NYS2d 16 (1st Dept. 1990)
Accordingly, that branch of the Defendant's motion which seeks dismissal of Count
Four is granted; and, it is hereby
ORDERED, that Count Four is dismissed.
INTERSTS OF JUSTICE
CPL §
170.30(g) provides that, upon motion of a defendant, the court may dismiss in the interests of
justice, within the meaning of CPL § 170.40. This latter section provides, in pertinent part,
that such dismissal may be had:
when, even though there may be no basis for dismissal as a matter of law upon any
ground specified in paragraphs (a) through (f) of said subdivision one of section 170.30, such
dismissal is required as a matter of judicial discretion by the existence of some compelling
factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the
defendant upon such accusatory instrument or count would constitute or result in injustice.
The court's discretion in granting such an application "is neither absolute nor
uncontrolled." People v. Wingard, 33 NY2d 192, 351 NYS2d 385 (1973). See
also: People v. Kelley, 141 AD2d 764, 529 NYS2d 855 (2nd Dept.1988) "The Trial
Court's discretion to dismiss in the interests of justice, should be exercised sparingly' and only in
that rare' and unusual' case where it cries out for fundamental justice beyond the confines of
conventional considerations.' People v. Belge, 41 NY2d 60, 62-63, 390 NYS2d 867, 359
NE2d 377; People v. Belkota, 50 AD2d 118, 120, 377 NYS2d 321; People v. Kwok
Ming Chan, 45 AD2d 613, 615-616, 360 NYS2d 425 (1st Dept.)." People v.
Insignares, 109 AD2d 221, 491 NYS2d 166 (1st Dept.1985) The court must weigh the
competing interests of the Defendant, the complainant and the community at large. See:
People v. Richert, 58 NY2d 122, 459 NYS2d 734 (1983); People v. Schlessel,
104 AD2d 501, 479 NYS2d 249 (2nd Dept.1984); People v. Toback, 170 Misc 2d 1011,
652 NYS2d 946 (City Ct. Long Beach1996)
In this regard, CPL § 170.40(1) further provides:
In determining whether such compelling factor, consideration, or circumstance
exists, the court must, to the extent applicable, examine and consider, individually and
collectively, the following:
(a) the seriousness and circumstances of the offense;
(b) the
extent of harm caused by the offense;
(c) the evidence of guilt, whether admissible or inadmissible at trial;
[*9]
(d) the history, character and condition of the defendant;
(e) any exceptionally serious misconduct of law enforcement personnel in the investigation,
arrest and prosecution of the defendant;
(f) the purpose and effect of imposing upon the defendant a sentence authorized for the
offense;
(g) the impact of a dismissal on the safety or welfare of the community;
(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;
(i) where the court deems it appropriate, the attitude of the complainant or victim with
respect to the motion;
(j) any other relevant fact indicating that a judgment of conviction would serve no useful
purpose.
"When deciding a motion to dismiss in the interest of justice, it is not necessary to
engage in a point-by-point "catechistic" discussion of all ten factors ... Instead, the court is
required to consider the factors individually and collectively' ...." People v. Gragert, 1 Misc 3d 646,
765 NYS2d 471 (Crim.Ct. NY Co. 2003); See also: CPL § 170.40(1); People v.
Henriquez, 68 NY2d 679, 505 NYS2d 596 (1986); People v. Federman, 19 Misc 3d 478, 852 NYS2d 748
(Crim.Ct.NY Co. 2008)
Evaluating each of the factors set forth in CPL § 170.40(1), the court does not find the
matter sub judice to be an "unusual case that cries out for fundamental justice beyond the
confines of conventional considerations of legal or factual merits of the charge or even on the
guilt or innocence of the defendant' (citations omitted)." People v. Belge, 41 NY2d 60,
62-63, 390 NYS2d 867, 378 (1976) [concurring opn. by Fuchsberg, J.]; See also:
People v. Dawkins, 289 AD2d 589, 735 NYS2d 818 (2nd Dept. 2001); People v.
Hudson, 217 AD2d 53, 634 NYS2d 752 (2nd Dept.1995)
Contrary to the Defendant's wishes, the court does not under estimate the seriousness of the
charges brought against the Defendant. The conduct of which the Defendant is accused is
specifically proscribed by Agriculture and Markets Law §§ 353, 355 and 356 due to
the serious nature of such alleged torture, cruelty, abandonment and neglect. The seriousness of
these charges is compounded by the fact that they were allegedly committed by an individual
who is charged with the compassionate care of animals and who, it is alleged, was fully aware of
practices and procedures which could have alleviated this animal's suffering.
Similarly, the extent of the harm allegedly caused by the Defendant's alleged conduct is
readily apparent. There appears to be no question that the cat in the Defendant's charge was
seriously injured and in obvious distress. If the allegations are true, it would not be unreasonable
for a jury to infer that this cat was allowed to unnecessarily suffer for approximately ten hours.
As discussed at length hereinabove, if the allegations contained in the various supporting
depositions are true, at the very least, the evidence will establish a prima facie case of a
violation of the Agriculture and Markets Law, and possibly proof beyond a reasonable doubt.
The court does not find that there has been a demonstration of any police misconduct in this
matter.
Whatever sentence may be imposed upon the Defendant, should he be convicted of one or
more of the charges against him will be commensurate with the crimes committed and designed,
at that time, to meet serving the interests of all concerned. The range of potential sentences to be
imposed is not a reason to dismiss the charges at this time.
The court is of the opinion that a dismissal at this time would potentially have a [*10]negative impact on the community and the confidence of the
public in the criminal justice system. The community and the public have the right to expect that
courts take the issue of animal torture, cruelty, neglect and abandonment seriously and that the
laws addressing same shall be enforced where a violation of same occurs.
Other than the fact that the Defendant has no prior involvement with the criminal justice
system, the court can find no other factor which would argue in favor of a dismissal in the
interests of justice.
Based upon all of the foregoing, those branches of the Defendant's motion seeking to dismiss
Count One, Count Two and Count Three as being facially insufficient, or in the interests of
justice is denied. That branch of the Defendant's motion seeking to dismiss Count Four as being
facially insufficient is granted; and, it is hereby
ORDERED, that Count Four is dismissed.
This constitutes the decision and order of the court.
Dated: Hempstead, New York
August 12, 2010
___________________________
ANDREW M. ENGEL
J.D.C.
Footnotes
Footnote 1: The definition of "abandoned"
provided in Agriculture and Markets Law § 331 is inapplicable to Section 355.