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.
People v Curcio (Charles)
Decided on March 15, 2013
Appellate Term, Second Department
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ
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 ). 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.
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 ). 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 ; 100.40  [c]; People v Dumas, 68 NY2d 729, 731 ). 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 ; People v Kalin, 12 NY3d 225, 231-232 ; People v Casey, 95 NY2d 354, 366 ). Consequently, the Criminal Court properly determined that the 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 ; People v Merrill, 87 NY2d 948 ; People v Lopez, 84 NY2d 425, 428 ). 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 ...