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THE ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH “FAILURE TO PROVIDE NECESSARY SUSTENANCE” FOR A DOG, AN A MISDEMEANOR, WAS NOT SUPPORTED BY NONHEARSAY FACTUAL ALLEGATIONS; INSTRUMENT DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the accusatory instrument charging defendant with “failure to provide necessary sustenance” for a dog was facially insufficient because no nonhearsay factual allegations supporting the charge were provided: The statute at issue is Agriculture and Markets Laws (AML) section 353:

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” … . We evaluate the accusatory instrument here under the standard applicable to a misdemeanor information. In accordance with CPL 100.40, “[a] misdemeanor information must set forth ‘nonhearsay allegations which, if true, establish every element of the offense charged’ ” … . This requirement is jurisdictional, and an accusatory instrument that falls short must be dismissed … . “[T]he test for whether a flaw in an accusatory instrument is jurisdictional is. . . whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” … . * * *

… [A]n accusatory instrument charging a violation of section 353 need not include documentation from a veterinarian, especially in those cases where the conditions are visible or palpable. The investigator did not allege any facts in support of [an alleged failure to provide veterinary care]. The investigator also failed to describe the conditions under which he first observed [the dog]—splayed in the middle of a traffic lane and barely able to move—which might have allowed for an inference that the dog was mistreated or neglected to the point of being in extremis.

In sum, the factual allegations and inferences to be drawn from the accusatory instrument are insufficient to “establish every element of the offense charged” … , that defendant deprived [the dog] of sustenance in violation of AML section 353. People v Farrell, 2025 NY Slip Op 02100 CtApp 4-10-25

Practice Point: Consult this opinion for some insight into the nature of the nonhearsay factual allegations which must be included in an accusatory instrument charging an A misdemeanor, here a violation of the Agriculture and Markets Law section 353 (failure to provide necessary sustenance for a dog).​

 

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