Criminal Court of the City of New York, New York County
November 6, 2013
The People of the State of New York, Plaintiff,
Peter Morin, Defendant.
Ann E. Scherzer, J.
Defendant is charged with violating Agricultural and Market Law (AML) § 353, based on allegations that he deprived his pet dog Tinkerbell, a black Shih Tzu, of medical treatment for various illnesses, thereby causing her to suffer. Defendant moves to dismiss the information on three separate grounds. First, defendant claims the information is facially insufficient. Second, he contends that the statute, as applied to the facts of his case, is void for vagueness, and thereby violates his Federal and State Due Process rights. Finally, defendant seeks dismissal in the interest of justice. Upon review of the facts, the moving papers and attachments submitted by both parties as well as the relevant statutes and caselaw, the defendant's motion is DENIED in its entirety, for the reasons stated below. 
The accusatory instrument in this case consists of a criminal court complaint signed by Deborah Ryan, a Special Agent with the American Society for the Prevention of Cruelty to Animals (ASPCA), which was later converted to an information by way of a supporting deposition from Dr. Robert Reisman. In the complaint, Ryan states that on December 17, 2012, she responded to a call from Canine Styles, a dog grooming shop located at 2231 Broadway in Manhattan, reporting a dog that was suffering from severe matting and overgrown nails. Upon arrival at Canine Styles, Ryan observed Tinkerbell, "suffering from severe matting and crusting around the eyes, ears and anus. Ryan also observed that the dog's nails were overgrown, the dog was very thin and that a strong smell of urine and feces emanated from the dog." Ryan spoke to the defendant who confirmed that he is Tinkerbell's owner, and told Ryan that he has not brought Tinkerbell to a veterinarian or a groomer for a year, because he lacked sufficient funds to pay for their services.
Ryan brought Tinkerbell to the Bergh Memorial Animal Hospital where she was treated by Dr. Reisman, a Doctor of Vetinary Medicine and the Medical Coordinator of Animal Cruelty Cases for that institution. Dr. Reisman reported to Ryan that Tinkerbell suffered from "excessive matting on the head, ears, all four legs and tail; an untreated infection in the right ear; overgrown claws; an untreated eye disease; untreated kidney disease; extreme dental disease and untreated skin disease." Based on his expertise, Dr. Reisman concluded that Tinkerbell "experienced distress and pain as a result of the untreated condiions as well as high blood pressure, and that signs of her painful condition ought to have been noticed by the defendant.
AML § 353 states that "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 engages in, 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."
"Cruelty" is defined by AML as any "act, omission, or neglect whereby unjustifiable physical pain, suffering or death is caused or permitted. Agricultural and Markets Law § 350(1).
MOTION TO DISMISS FOR FACIAL INSUFFICIENCY
Defendant argues that the information is facially insufficient, and should therefore be dismissed. More specifically, he asserts that a failure to provide medical treatment or grooming to an animal is not criminalized by this statute because the only affirmative duty imposed upon pet owners is to provide "necessary sustenance, food or drink." Defendant argues that medical treatment is not encompassed by the word "sustenance, " which is meant to include only food and drink. Therefore, absent allegations that defendant failed to provide Tinkerbell with those basics, the information is insufficient.
An information, together with any supporting depositions, must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. See CPL §100.40(1)(a)-(c). See also People v Dumas, 68 N.Y.2d 729 (1986); People v Alejandro, 70 N.Y.2d 133 (1988); People v McDermott, 69 N.Y.2d 889 (1987); People v Case, 42 N.Y.2d 98 (1977). Reasonable cause 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 and that such person committed it." Criminal Procedure Law § 70.10(2). The court must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from the allegations in the light most favorable to the People. (CPL §§ 100.40, 100.15; People v Alejandro, 70 N.Y.2d 133 (1987); People v Henderson, 92 N.Y.2d 677 (1999); Casey, Supra). This does not require that the accusatory instrument state facts that would prove defendant's guilt beyond a reasonable doubt but rather that it contain allegations of fact that "give an accused sufficient notice to prepare a defense and be adequately detailed to prevent a defendant from being tried twice for the same offense". People v Casey, 95 N.Y.2d 354, 360, 740 N.E.2d 233, 236, 717 N.Y.S.2d 88, 91 (2000).
Judged by these standards, the court finds this complaint to be facially sufficient because in addition to mandating that pet owners provide sustenance to their animals, the statute proscribes any act of cruelty toward an animal. Failure to provide medical care to a pet who is suffering from multiple conditions and in obvious distress would, in this court's view, constitute cruelty as defined by the AML; an omission that causes or permits the animal to experience physical pain or suffering. The complaint alleges that defendant failed to provide medical care to Tinkerbell for a period of one year, and that by the time she was treated by Dr. Reisman, Tinkerbell was suffering from several diseases which would cause her to exhibit signs of pain. These allegations provide sufficient support for the People's theory that defendant engaged in an act of cruelty, as defined by the AML.
Because the court finds there is reasonable cause to believe that defendant engaged in an act of cruelty toward Tinkerbell in violation of AML § 353, there is no need to resolve the question of whether or not medical care is included in the statute's definition of sustenance. 
The Court finds the accusatory instrument provides adequate information to enable defendant to prepare a defense and sufficient detail to prevent him from being tried twice for the same offense.
Accordingly, the motion to dismiss for facial insufficiency is denied.
VOID FOR VAGUENESS
In an argument related to and intertwined with his motion to dismiss for facial insufficiency, defendant asserts that the prohibition against cruelty to animals found in AML § 353 is constitutionally "void for vagueness"as applied to the facts alleged in this complaint and that therefore, this complaint must be dismissed. Defendant particularly objects is to the adjective "unjustifiable" in connection with "physical pain and suffering, " and he argues that the statute does not make clear what type of pain or suffering is "justifiable." In support of this argument, defendant relies heavily upon People v Arroyo, in which the Kings County Criminal Court found the precise language defendant attacks here to be void for vagueness. Arroyo, 3 Misc.3d 668. However, this Court finds critical factual distinctions between this case and Arroyo, which render the rationale of that case, inapplicable here.
Arroyo's case began when he was on vacation and an anonymous caller reported to the ASPCA that one of Arroyo's dogs had a large, bleeding tumor protruding from her stomach. The ASPCA removed Arroyo's dog from a caretaker and brought her for medical treatment. The dog underwent surgery and was diagnosed as suffering from terminal cancer. When Arroyo returned from vacation, he met with the ASPCA investigator and explained that he was aware of the fact that his dog had cancer, but had not provided medical treatment to her both because of his limited resources, and because "he was familiar with cancer because a relative had had cancer and painful chemotherapy and stated that he believed that the dog should live out her life without intervention." Id. at 670. Charged with violating AML § 353, Arroyo challenged the sufficiency of the complaint arguing, inter alia, that the facts could not support the allegation that his failure to provide care for his dog resulted in "unjustifiable pain." Id.
A challenge for vagueness must be evaluated by a two-pronged test. "First, the statute must provide sufficient notice of what conduct is prohibited; second, the statute must not be written in such a manner as to permit or encourage arbitrary and discriminatory enforcement." People v Bright, 71 N.Y.2d 376, 382. In determining the sufficiency of notice under the first prong, the statute "must of necessity be examined in the light of the conduct with which the defendant is charged, not as applied to other hypothetical situations. Arroyo, 3 Misc.3d at 672 citing US v National Dairy Prods. Corp., 372 U.S. 29, 33 (1963); US v Powell, 423 U.S. 87, 92 (1975).
In considering Arroyo's challenge to AML § 353, the court was faced with a particular set of circumstances; the dog in question was suffering from terminal disease which, sadly, creates inevitable physical pain and suffering to all afflicted beings. The question of how to treat a human let alone a canine cancer patient with no hope of long-term recovery is highly debatable since the treatment often causes tremendous pain during the end of life. A human facing this choice can rationally consider the pros and cons of treatment and decide if the extension of life offered is worth the expense, both in terms of financial cost and physical pain. Reasonable minds can and do differ vastly. Whether or not to treat an animal suffering from terminal cancer carries a different set of considerations. An animal cannot understand any potential benefit of treatment and would only experience the pain without the salve of knowing its life might be slightly extended. One could as easily argue that providing, as withholding, treatment to a terminally ill dog is an act of cruelty, without a more specific definition of the term "unjustifiable."
The facts in this case are a far cry from those in Arroyo. Tinkerbell was not terminally ill and the treatment for her ailments was not controversial. Indeed, defendant proffered no moral or philosophical explanation for his failure to provide medical care to Tinkerbell, but simply said he could not afford to take her to a groomer or a veterinarian.  Whether defendant's failure to provide care under these circumstances was justified, or whether he should have surrendered Tinkerbell to the ASPCA, is a factual question that must be determined at trial. People v. Walsh, 19 Misc.3d 1105(A) (Crim Ct NY Co, 2008). The Court rejects the assertion that the term "unjustifiable pain" applied to these facts is unconstitutionally vague and finds the allegations sufficiently demonstrate reasonable cause to believe that the omission was unjustifiable.
MOTION TO DISMISS IN THE INTEREST OF JUSTICE
The Court must exercise its discretionary power to dismiss a pending criminal prosecution sparingly and only in that " rare' and unusual' case when it cries out for fundamental justice beyond the confines of conventional considerations'." People v. Insignares, 109 A.D.2d 221, 234, lv denied65 N.Y.2d 928 (1985), quoting People v. Belge, 41 N.Y.2d 60, 62-63 (1976), People v. Arbeiter, 169 Misc.2d 771 (1st Dept 1996); People v Harmon, 181 A.D.2d 34 (1st Dept 1992). Defendant has not identified any facts suggesting that justice requires the court to intervene and dismiss the information. Instead, his motions show that he has a viable defense to present at trial and competent counsel to do so on his behalf. It is up to the trier of fact to determine the sufficiency of the People's evidence. Accordingly, the defendants' motion to dismiss in furtherance of justice is denied.
This constitutes the decision and order of the court.