Appellate Advocates (John B. Latella, Esq.), for appellant.
County District Attorney (Ruth E. Ross, Esq.), for
PRESENT: MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID
from a judgment of the Criminal Court of the City of New
York, Kings County (Michael Gerstein, J.), rendered August
26, 2014. The judgment convicted defendant, upon his plea of
guilty, of failure to provide proper sustenance to an animal.
that the judgment of conviction is affirmed.
was charged with violating Agriculture and Markets Law §
353. The pertinent part of the accusatory instrument states
"THE DEPONENT STATES THAT, AT THE ABOVE TIME AND PLACE,
DEPONENT OBSERVED TWO PITBULLS IN THE BACKYARD OF
DEFENDANT'S RESIDENCE, THAT DEPONENT OBSERVED SAID DOGS
TO HAVE SORES ON THE PELVIC AREA, EXTREMELY EMACIATED,
PROMINENT RIBS, SPINE, PELVIC BONES, EXAGGERATED HOUR GLASS
TORSOS, AND FOOD AND WATER BOWLS TO BE EMPTY AND RUSTED.
DEPONENT IS FURTHER INFORMED BY DEFENDANT'S OWN STATEMENT
THAT DEFENDANT WAS TAKING CARE FOR SAID DOGS FOR ABOUT ONE
MONTH AND THAT DEFENDANT FED SAID DOGS TWICE A DAY.
DEPONENT IS FURTHER INFORMED BY, DR. ROBERT REISMAN, MEDICAL
COORDINATOR OF ANIMAL CRUELTY CASES AT BERGH MEMORIAL ANIMAL
HOSPITAL, THAT INFORMANT OBSERVED AND TREATED THE
ABOVE-MENTIONED DOGS FOR MALNUTRITION AND STARVATION."
pleaded guilty to the charged offense, and the court imposed
a sentence of a conditional discharge.
appeal, defendant contends that Agriculture and Markets Law
§ 353 is unconstitutionally vague as applied to him in
that the statute fails to define a point where his
and Markets Law § 353 provides in relevant part:
"A person who... 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... deprived of necessary food or drink, or
who wilfully... in any way furthers any act of cruelty to any
animal... is guilty of a misdemeanor."
addressing whether a statute is unconstitutionally vague as
applied, courts have developed a two-part test (see
People v Bright, 71 N.Y.2d 376, 382 ; Matter
of State of New York v Spencer D.,96 A.D.3d 768');">96 A.D.3d 768 ;
People v Romano,29 Misc.3d 9');">29 Misc.3d 9 [App Term, 1st Dept
2010]). The first part of the test is for the court to
"determine whether the statute in question is
sufficiently definite to give a person of ordinary
intelligence fair notice that his contemplated conduct is
forbidden by the statute" (Matter of State of New
York, 96 A.D.3d at 769 [internal quotation marks and
citations omitted]). "The rationale underlying the
requirement that a penal statute provide adequate notice is
the notion that no man shall be held criminally responsible
for conduct which he could not reasonably understand to be
proscribed" (Bright, 71 N.Y.2d at 382 [internal
quotation marks and citations omitted]). The second part of
the test requires that a "court  determine whether the
enactment provides officials with clear standards for
enforcement" (Matter of State of New York, 96
A.D.3d at 769, quoting People v Stuart, 100 N.Y.2d
412, 420  [internal quotation marks omitted]) so that
its enforcement is not arbitrary or discriminatory. "The
Legislature must include in a penal ...