JURY INSTRUCTIONS ALLOWED DEFENDANT TO BE CONVICTED ON A THEORY THAT WAS NOT INCLUDED IN THE INDICTMENT, CONVICTION REVERSED IN THE INTEREST OF JUSTICE IN THIS ANIMAL CRUELTY CASE, NEW TRIAL ORDERED DESPITE DEFENDANT’S HAVING COMPLETED HIS SENTENCE (FIRST DEPT).

The First Department, reversing Supreme Court in the interest of justice, determined the jury instructions in this animal cruelty case allowed a conviction on a theory that was not included in the indictment. A new trial was ordered, despite defendant’s having served his sentence:

As the People essentially concede, the court’s jury charge constructively amended the indictment … . The indictment was limited to a theory that defendant personally mistreated his dog. However, the court read Agriculture & Markets Law § 353 to the jury almost in its entirety, including a provision that would allow the jury to convict defendant if he merely permitted another person to mistreat his dog. Unlike ordinary accessorial liability under Penal Law § 20.00, this theory of “permitting” is an entirely different way of committing the crime from personally mistreating the animal. This error was not harmless, because there was evidence from which a reasonable jury could have inferred that defendant took the blame for his dog’s condition to cover for his uncle, who lived with defendant and made inconsistent statements about whether he witnessed defendant beating the dog.

However, the fact that defendant has completed his sentence does not warrant dismissal of the indictment. That approach is suitable only in cases of “relatively minor crimes”  … , and this case involves “serious” allegations  …of abusing an animal. Accordingly, we remand for a new trial. People v Gentles, 2019 NY Slip Op 02623, First Dept 4-4-19