DOGS – New York Appellate Digest

Proof of the Dog’s Emaciated Condition Supported Defendant’s Conviction of the Violation of Agriculture and Markets Law 353

CurlyHost — Wed, 01 Jul 2015 04:00:00 +0000

The Court of Appeals determined the proof of the emaciated condition of defendant’s dog supported the defendant’s conviction for a violation of Agriculture and Markets Law 353 which prohibits depriving an animal of necessary sustenance. On appeal the defendant argued the trial court erred in refusing to instruct the jury that a conviction required proof of a mens rea, i.e., that defendant knowingly deprived or neglected the dog. The Court of Appeals did not address the defendant’s argument, finding that the proof of the dog’s condition alone supported the conviction. People v Basile, 2015 NY Slip Op 05623, CtApp 7-1-15

Jury Instruction Reversed Burden of Proof—New Trial Ordered

CurlyHost — Thu, 02 Apr 2015 04:00:00 +0000

The Third Department determined defendant’s conviction must be reversed because the trial court’s instruction to the jury reversed the burden of proof. The defendant was accused of killing a pit bull in violation of Agriculture and Markets Law 353(a)(1):

….[D]efendant contends that County Court erred in rendering a supplemental jury instruction that effectively shifted the burden of proof to defendant to prove his own innocence. While defendant failed to preserve this issue through an appropriate objection, given the nature of the challenged instruction, we exercise our interest of justice jurisdiction to take corrective action … . Without question, the People bear the burden of proving a defendant’s guilt beyond a reasonable doubt, and County Court so charged the jury twice before giving the instruction at issue. After receiving a further note from the jury requesting definitions for certain terms, including “depraved” and “sadistic,” the court determined that it would “be beneficial . . . to once again go over the definition of aggravated cruelty.” In doing so, however, the court advised the jury: “Thus, if you find beyond a reasonable doubt that the defendant did not engage in conduct which caused the animal extreme pain or which was not done or carried out in an especially depraved or sadistic manner, you must find the defendant not guilty.” This charge impermissibly shifted the burden of proof by suggesting that defendant needed to prove his innocence beyond a reasonable doubt. Compounding the problem, the charge was rendered shortly before the jury rendered the guilty verdict. In our view, this was a fundamental error, requiring the reversal of the judgment and a new trial … . People v Facey, 2015 NY Slip Op 02810, 3rd Dept 4-2-15

Therapeutic Dog Allowed In Court to Support Alleged Child Victim of Sexual Offenses During Trial Testimony

Bruce Freeman — Wed, 10 Jul 2013 13:54:58 +0000

The Second Department, in a full-fledged opinion by Justice Sgroi, determined that the “courts of this State should permit the presence of a therapeutic ‘comfort dog’ in a trial setting when the court determines that the animal may provide emotional support for a testifying crime victim.” The defendant was charged with predatory sexual assault against a child. The alleged victim was his daughter who 15 years old at the time of trial. It was alleged that the victim twice became pregnant by the defendant and the defendant arranged for abortions in both instances. The Second Department found support for its determination in Executive Law section 642-a (procedures making the judicial process less threatening to child victims). The Second Department rejected defendant’s arguments that the presence of the dog violated his right to due process of law and right of confrontation. People v Tohom, 2013 NY Slip Op 05234, 2nd Dept 7-10-13