The opinion of the court was delivered by: Michael Gerstein, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Defendant is charged with the offense of Overdriving, Torturing and Injuring Animals and Failure to Provide Proper Sustenance for Animals (Agriculture and Markets Law, hereinafter "A.M.L" § 353), a class A misdemeanor, for allegedly refusing to provide medical care for his dog, Sophie, for a prominent mass protruding from her rear end, which subsequently required surgery and six days of intensive care. We hold the statute constitutional as applied, the complaint facially sufficient and that the interests of justice do not warrant dismissal.
Defendant challenges both the sufficiency of the Complaint and the statute. He moves, first, for dismissal for facial insufficiency pursuant to CPL §§ 170.30(1)(a), 170.35(1)(a)-(b), 100.15, and 100.40. Second, Defendant moves for dismissal pursuant to CPL § 170.30(1)(f), arguing that the regulation is unconstitutional because it is void for vagueness. Third, Defendant seeks dismissal in the interest of justice pursuant to CPL § 170.40, as a matter of public policy, as well as the weakness of the evidence against Defendant, doubts about the meaning of A.M.L § 353, and the factors set forth in CPL § 170.40. The People oppose Defendant's motion. For the following reasons, Defendant's motion is denied in its entirety.
Legal and Factual Background
The Complaint, signed by Humane Law Officer Deborah Koch of the ASPCA, states in relevant part:
Deponent states that, at the above time and place [on or about December 11, 2007 at approximately 3:23 PM], Deponent observed a female cane corso (canine) who appeared thin and had a mass like tumor coming from rear end.
Deponent further states that Deponent asked Defendant if Defendant owned the canine and wheather [sic] the canine had any medical conditions, to which the 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 above stated cane corso was a: 2 year old, female dog, had a prolapsed vagina and was underweight.
Deponent is further informed by Dr. Reisman that because the dog had not recieved [sic] medical attention, the medical treatment to save the dog's life required a surgery and six days of intensive care and that lack of care to the dog caused said dog to suffer needlessly.
The Defendant is charged on these allegations with one count of A.M.L § 353. In addition to the Complaint, the People have served and filed a supporting deposition signed by Dr. Robert Reisman, corroborating the allegations in the accusatory instrument.
Where a case may properly be determined on other grounds, a Court should refrain from considering challenges brought under the Federal or State Constitutions. Jean v. Nelson, 472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed. 2d 664 (1985); Syquia v. Board of Educ. of Harpursville Cent. School Dist., 80 NY2d 531, 606 NE2d 1387, 591 NYS2d 996 (1992). We therefore consider, as a threshold matter, the facial sufficiency of the Complaint.
Defendant's Motion to Dismiss the Complaint for Facial Insufficiency is Denied
In order to be sufficient on its face, an accusatory instrument must allege facts sufficient to provide reasonable cause to believe that the Defendant committed the offenses charged. CPL § 100.40(4)(b); People v. Dumas, 68 NY2d 729, 497 NE2d 686, 506 NYS2d 319 (1986). The allegations must be non-hearsay. CPL § 100.40(1)(c); People v. Alejandro, 70 NY2d 133, 511 NE2d 71, 517 NYS2d 927 (1987). Furthermore, the Court of Appeals in People v. Allen, 92 NY2d 378, 703 NE2d 1229, 681 NYS2d 216 (1998), held that at the ...