Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Cherry

Supreme Court of New York, Second Department

August 25, 2017

The People of the State of New York, Respondent,
v.
Frankie Cherry, Appellant.

          Appellate Advocates (John B. Latella, Esq.), for appellant.

          Kings County District Attorney (Ruth E. Ross, Esq.), for respondent.

          PRESENT: MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ

         Appeal 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.

         ORDERED that the judgment of conviction is affirmed.

         Defendant was charged with violating Agriculture and Markets Law § 353. The pertinent part of the accusatory instrument states as follows:

"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."

         Defendant pleaded guilty to the charged offense, and the court imposed a sentence of a conditional discharge.

         On 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 responsibility attaches.

         Agriculture 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."

         In 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 [1988]; Matter of State of New York v Spencer D.,96 A.D.3d 768');">96 A.D.3d 768 [2012]; 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 [2003] [internal quotation marks omitted]) so that its enforcement is not arbitrary or discriminatory. "The Legislature must include in a penal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.