PEOPLE v. GARCIA (2004)

On January 30, 2004, following a bench trial defendant was convicted of attempted assault in the second degree (PL §§ 110/120.05[1] ), assault in the third degree (PL § 120.00[1] ) (three counts), criminal possession of a weapon in the third degree (PL § 265.02[1] ), criminal mischief in the third degree (PL § 145.05), endangering the welfare of a child (PL § 260.10[1] ) (three counts), and aggravated cruelty to animals (Agriculture and Markets Law § 353-a).   Prior to the court's verdict, defendant moved to dismiss the charge of aggravated cruelty to animals on due process grounds, contending that the statute's definition of “companion animal” was unconstitutionally vague, both facially and as applied to him.   This written decision explains the court's oral decision of January 30, 2004, which denied defendant's motion in its entirety.

I. BACKGROUND

The evidence at trial established that on August 2, 2003, defendant Michael Garcia, wielding a gravity knife, assaulted Emalie Martinez in her home, and also committed various other crimes against Jesus Rabassa, who was her roommate at the time, and Ms. Martinez's three children, Juan Torres, age 9, Crystal Torres, age 8, and Emalie Ann Torres, age 4. Earlier on that day, defendant had picked up a ten-gallon fish tank containing three pet goldfish belonging to Ms. Martinez's three children and hurled it into a 47” television screen, smashing the television screen and the fish tank, and damaging other property items in the process.   Defendant then called nine year-old Juan into the room and, said, “Hey, Juan, want to see something cool?”   Defendant then proceeded to crush under the heel of his shoe one of the three goldfish then writhing on the floor.

II. DISCUSSION

A. Applicable Law1. The Vagueness Doctrine

 It is well-established that due process under both the federal and state constitutions requires a criminal statute to define an offense with sufficient clarity that a person of ordinary intelligence can understand what conduct is prohibited.  (Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 [1926];  International Harvester Co. v. Kentucky, 234 U.S. 216, 221, 34 S.Ct. 853, 58 L.Ed. 1284 [1914];  People v. Grogan, 260 N.Y. 138, 145-46, 183 N.E. 273 [1932] ).   A statute must also be written in a manner which precludes arbitrary and discriminatory enforcement by the police.  (Grayned v. City of Rockford, 408 U.S. 104, 108-9, 92 S.Ct. 2294, 33 L.Ed.2d 222 [1972];  People v. Nelson, 69 N.Y.2d 302, 306, 514 N.Y.S.2d 197, 506 N.E.2d 907 [1987] ).   Accordingly, a statute is unconstitutionally vague if a potential offender or a police officer cannot determine the conduct proscribed by the statute.   (People v. Stuart, 100 N.Y.2d 412, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003] ).   Where a question is raised as to the constitutionality of a statute, the party raising the challenge bears the burden of establishing that the provision is unconstitutional beyond a reasonable doubt.  (People v. Scalza, 76 N.Y.2d 604, 562 N.Y.S.2d 14, 563 N.E.2d 705 [1990] ).

 A party may challenge a statute as being unconstitutionally vague on its face or in its particular application.  (People v. Stuart, supra, 100 N.Y.2d at 421, 765 N.Y.S.2d 1, 797 N.E.2d 28).   Upon raising a facial vagueness argument, the challenger has the burden of demonstrating that the statute is impermissibly vague in all of its applications.  (United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 [1987] ).   That is, for a facial challenge to succeed, the moving party must show that the statute is permeated by vagueness to the point where “no standard of conduct is specified at all” (Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 [1971] ), or that the statute is so vague that it permits a police officer to exercise unfettered discretion in every single case (People v. Bright, 71 N.Y.2d 376, 383-84, 526 N.Y.S.2d 66, 520 N.E.2d 1355 [1988] ).   An “as-applied” challenge, by contrast, requires a court only to consider whether the statute can be constitutionally applied to the defendant under the particular facts of the case.  (Chapman v. United States, 500 U.S. 453, 467-68, 111 S.Ct. 1919, 114 L.Ed.2d 524 [1991];  People v. Parker, 41 N.Y.2d 21, 24, 390 N.Y.S.2d 837, 359 N.E.2d 348 [1976] ).

 Every statute is presumed to be constitutional.  (Brady v. State of New York, 80 N.Y.2d 596, 602, 592 N.Y.S.2d 955, 607 N.E.2d 1060 [1992] ).   Accordingly, with the exception (not relevant here) of a First Amendment context, when a statute is challenged as being vague both facially and as applied, a court must first consider whether the statute is vague as applied to the party making the challenge.  (People v. Stuart, supra, 100 N.Y.2d at 423, 765 N.Y.S.2d 1, 797 N.E.2d 28;  Ulster Home Care v. Vacco, 96 N.Y.2d 505, 510, 731 N.Y.S.2d 910, 757 N.E.2d 764 [2001] ). If the statute provides the defendant with adequate notice and the police with clear criteria, that will be the end of the inquiry, as a court “will not strain to imagine marginal situations in which the application of the statute is not so clear.”  (People v. Nelson, supra, 69 N.Y.2d at 308, 514 N.Y.S.2d 197, 506 N.E.2d 907).   Accordingly, should a defendant's as-applied challenge fail, the court will have found that there is at least one person, the defendant, to whom the statute may be applied constitutionally, and, therefore, the statute would necessarily be valid on its face and not unconstitutionally vague.  (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 [1982];  People v. Stuart, supra, 100 N.Y.2d at 423, 765 N.Y.S.2d 1, 797 N.E.2d 28).

2. Agriculture and Markets Law § 353-a

Popularly known as “Buster's Law,” Agriculture and Markets Law § 353-a was enacted by the Legislature in 1999 after a Schenectady cat named “Buster” was doused with kerosene and set on fire.   The law was enacted to “increase the penalty for intentionally and without just cause seriously injuring or killing ․ dogs, cats and other domesticated animals.”  (N.Y. Assembly Memo in Support of L. 1999, ch. 118, 1999 McKinney's Session Laws of N.Y. [N.Y. Assembly Memo] at 1584-85).   Governor Pataki, when signing the legislation, stated that making such conduct a felony will send a “clear message that such cowardly and despicable acts of violence will not be tolerated.”  (Executive Memo, L. 1999, ch. 136, 1999, McKinney's Session Laws of N.Y. at 1469).   Finally, the Legislature acknowledged that “[t]he connection between animal abusers and violence towards humans shows that virtually every serial killer had a history of abusing animals before turning their attention to people.”   (N.Y. Assembly Memo at 1585).

Specifically, Agriculture and Markets Law § 353-a provides:

A person is guilty of aggravated cruelty to animals when, with no justifiable purpose, he or she intentionally kills or intentionally causes serious physical injury to a companion animal with aggravated cruelty.   For purposes of this section, “aggravated cruelty” shall mean conduct which:  (i) is intended to cause extreme physical pain;  or (ii) is done or carried out in an especially depraved or sadistic manner.

The statute further states, in pertinent part:

A “companion animal” or “pet” means any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal.

(McKinney's Cons. Laws of N.Y. Annotated, Book 2B, Agriculture and Markets Law, § 350[5] at 124 [2003] ).

“Animal,” in turn, is defined in the statute as “every living creature except a human being.”  (McKinney's Cons. Laws of N.Y. Annotated, Book 2B, Agriculture and Markets Law § 350[1] ).

B. Parties' Contentions

Defendant contends that the definition of “companion animal” fails to provide adequate warning as to which animals Agriculture and Markets Law § 353-a protects, rendering the statute vague on its face and violative of due process.   In addition, defendant contends, the statute is vague as applied to him in this case, as a goldfish cannot be considered a companion animal, and, therefore, is not within the terms of the statute.   A goldfish, defendant argues, is not a companion animal because:  1) a “domesticated animal” must be a mammal;  2) a “domesticated animal,” must breathe air in order to live among humans;  3) a fish does not feel pain;  4) people eat fish;  5) a fish cannot be trained;  6) an owner cannot interact with a fish;  and 7) a fish cannot provide company to an owner.   Defendant concludes by arguing that a fish maintained in a household is, at best, an “ornament.”

The People contend that the statute is neither vague on its face nor vague as applied to defendant, as it provides adequate notice of the proscribed conduct.   The People argue that by expanding the definition of companion animal beyond cats and dogs to include other domesticated animals, the Legislature intended the statute to be read broadly and to include animals other than mammals.   Finally, the People contend, the statute's requirement that the unlawful conduct be for “no justifiable purpose” eliminates any concern that the killing and eating of fish at home would be prohibited under the statute.

C. Analysis

Only one reported decision has addressed the constitutionality of the aggravated cruelty to animals statute.   In People v. Knowles, 184 Misc.2d 474, 709 N.Y.S.2d 916 (Rensselaer County Court 2000), the court upheld the constitutionality of the statute against several challenges,¹ but did not address whether or not the definition of “companion animal” rendered the statute void for vagueness.

1. Principles of Statutory Construction

If a statute is framed in language which is clear and unambiguous, any attempt to construe its language is superfluous.  (McKinney's Cons. Laws of N.Y. Annotated, Book 1, Statutes, § 75 at 168 [1971] ).   Only where a statute's language leaves its purpose and the legislative intent uncertain should a court make any attempt at statutory construction.  (Id. at 168-69).   Accordingly, a court's first duty is to examine the natural and obvious meaning of the words and language employed in a statute to determine the intent of the Legislature.  (Id. at 170-171;  McKinney's Cons. Laws of N.Y. Annotated, Book 1, Statutes, § 91 at 174 [1971];  McKinney's Cons. Laws of N.Y. Annotated, Book 1, Statutes, § 94 at 188-91 [1971] ).

A statute may utilize ordinary terms to express ideas which find adequate interpretation in common usage and understanding.  (People v. Byron, 17 N.Y.2d 64, 67, 268 N.Y.S.2d 24, 215 N.E.2d 345 [1966] ).   Thus, where a statutory term is not defined in the statute itself, the common meaning of the term is to be applied.  (McKinney's Cons. Laws of N.Y. Annotated, Book 1, Statutes, § 232 at 392 [1971] ).   Dictionary definitions of words, while not necessarily controlling, may be useful in determining the sense in which a word is used.  (McKinney's Cons. Laws of N.Y. Annotated, Book 1, Statutes, § 234 at 398 [1971] ).

If statutory language remains ambiguous after an examination of its plain and ordinary meaning and the legislative intent remains uncertain, a court may look to other sources to determine that intent.  (McKinney's Cons. Laws of N.Y. Annotated, Book 1, Statutes, § 92 at 182-183 [1971] ).   Accordingly, a court may attempt to glean legislative intent by considering the context of the statute and the mischief the statute seeks to remedy (McKinney's Cons. Laws of N.Y. Annotated, Book 1, Statutes, § 95 at 196-97 [1971] ), the legislative history of the statute (McKinney's Cons. Laws of N.Y. Annotated, Book 1, Statutes, § 125 at 257 [1971] ), and New York State public policy (McKinney's Cons. Laws of N.Y. Annotated, Book 1, Statutes, § 126 at 262 [1971] ).   Finally, a court should apply rules of statutory construction which lead to reasonable results and conform to common sense.  (McKinney's Cons. Laws of N.Y. Annotated, Book 1, Statutes, § 143 at 286-90 [1971] ).

 Applying these rules of statutory construction, I find that the definition of “animal” within the statute, “every living creature except a human being,” is plain and unambiguous.   There is nothing within this definition which suggests that an animal as so defined must be a mammal.   Indeed, while caselaw on the subject is rare, this definition of animal has been employed in similar statutory provisions for over 100 years, and courts have held “animal” to include such non-mammals as reptiles and birds.  (See People v. Downs, 136 N.Y.S. 440 [New York City Magistrates' Court 1911] [where statutory definition of animal included “every living creature except the human race,” holding a sea turtle to be an “animal”];  People v. Klock, 48 Hun. 275 [4th Dept. 1888] [where statutory definition of animal included every living creature except the human race, finding a game cock to be an “animal”] ).

Moreover, the Legislature's statutory definition of “animal” conforms with generally accepted definitions of this term.   Thus, an animal is “any living organism except a plant or bacterium, typically able to move about” (Webster's New World Dictionary at 23 [1984] ), “an organism of the kingdom Animilia ․ and being distinguished from typical plants” (Webster's Third New International Dictionary at 85 [1993] ), and “any living being typically differing from a plant in having the ability to move voluntarily” (The Random House Dictionary of the English Language at 53 [College Ed. 1969] ).   Accordingly, this court need not engage in any statutory construction in order to find that a goldfish is an animal.

The most complex word which is undefined within the definition of companion animal is “domesticated.”  “Domesticate” is ordinarily understood to mean “to adapt (an animal or plant) to life in intimate association with and to the advantage of [humans].”  (Webster's Third New International Dictionary at 671 [1993] ).  “Domesticated” is also commonly understood and used to mean “tame.” (Id.).  These are everyday words which a person of ordinary intelligence would have no difficulty in understanding.

The words which qualify “domesticated animal” in the statute, that is, “normally maintained in or near the household of the owner or person who cares for such other domesticated animal,” further amplify the statute's ordinary meaning.   Thus, an animal protected under the statute must be cared for and maintained by human beings in or near a human household.   Contrary to defendant's contention, the statute contains no requirement that the domesticated animal be a mammal.

Goldfish are small orange fish often bred by human beings to live in fish tanks.  (See The Random House Dictionary of the English Language at 566 [College Ed. 1969] ).   It is not uncommon to see this tiny member of the carp family (id.) as a child's pet, dutifully maintained and cared for by its young human owner.   A goldfish is almost always named and spoken to as any household pet might be.   Moreover, the demise of a goldfish, as with any pet, often causes its young owner much distress, requiring significant consolation, and necessitates a burial or other dignified disposition of the animal's remains.

The statutory definition of “companion animal” uses ordinary terms to express ideas which find adequate interpretation in common usage and understanding.   (People v. Byron, supra, 17 N.Y.2d at 67, 268 N.Y.S.2d 24, 215 N.E.2d 345).   Both a potential offender of ordinary intelligence and a police officer would be adequately informed of the nature of the offense prohibited by the statute.   In this case, all three of the goldfish in the aquarium had names given to them by Juan Torres and his siblings.   In fact, the children anthropomorphically named their pet goldfish after themselves.   Both Juan Torres and his mother regularly cleaned the fish tank and fed the fish.   After defendant destroyed the aquarium, Juan's mother rushed to scoop the fish off the floor and place them into a bowl of water, but defendant killed the fish named “Junior” (Juan's nickname) before she could complete her task.   These facts clearly establish that the goldfish were household pets.   It is beyond cavil that a person of ordinary intelligence, including a police officer charged with enforcing the law, would know that the common household pet known as a goldfish is a companion animal intended to be protected under the statute, and that, in particular, Juan Torres' goldfish was such a companion animal.

Although the natural and obvious meaning of the statutory language makes clear the legislative intent to include goldfish within the protections of the statute, such intent is also demonstrated by New York's long-standing public policy, under both statutory and case law, to broadly protect all animals from unjustified abuse.   Thus, in 1888, a defendant was convicted under a statute prohibiting the use of a premises as a place where people could pay to see animals fight.  (People v. Klock, supra ).   The definition of animal in that statute, almost identical to the definition in Agriculture and Markets Law § 350(1), was held to protect game cocks.   Similarly, in 1911, a defendant was held to answer the charge of carrying an animal in a cruel manner by perforating the fins of 65 green sea turtles and stringing them together with a rope.  (People v. Downs, supra ).   In that case, too, a similar definition of animal was found to include turtles, notwithstanding the fact that the animals were being transported for commercial purposes and were not in any sense companion animals.   Accordingly, the plain meaning of the statutory language at issue in this case as well as New York public policy dating back to Klock and Downs, compels a finding that Juan Torres' goldfish was a companion animal protected under the statute.

Defendant's reasons to exclude goldfish from the definition of companion animal are without merit.   While no evidence was presented at trial on the issue of whether or not Junior, the goldfish, suffered pain when crushed and killed by the defendant, this court can find no requirement either in the statutory scheme of the Agriculture and Markets Law or in the public policy of our state as expressed in its Statutory and Common Law, indicating that the being which is the object of the statute's protection must necessarily experience pain in order to come within its purview.

Moreover, while humans can and do kill and eat fish on a regular basis, they do not do so if the fish at issue is a pet goldfish belonging to a young child.   The former is for a “justified purpose,” as the statute permits, while the latter is not.   People of ordinary intelligence understand that such goldfish are pets, beloved by their owners, and are not to be killed or eaten.   Also, the definition of companion animal does not require that the animal at issue be trained or provide company and interaction with a human.   Rather, the animal need only be cared for and maintained in or near the household of its human owner.   People of ordinary intelligence understand that a pet goldfish meets this definition.

Indeed, the actions defendant took against the goldfish in this case speak to defendant's understanding that he was killing a companion animal.   After awakening Emalie Martinez by threatening to smash the fish tank into her head, defendant hurled it into the family's entertainment center.   Defendant then made a point of summoning Juan into the room to witness defendant's sadistic and depraved act of destroying a family pet.   After piquing the boy's interest and gaining his attention, and in full view of Emalie Martinez, his mother, defendant then killed the goldfish under his shoe.   These actions clearly evince defendant's understanding and intention of inflicting emotional pain on both the boy and his mother.   Indeed, defendant's killing of Junior, the fish, under these circumstances could only have been undertaken for the purpose of destroying a creature the boy held dear, namely his pet.

As Agriculture and Markets Law § 353-a is not unconstitutionally vague as applied to defendant, there is at least one person to whom the statute is properly applied, and defendant's as-applied and facial challenge to the statute must fail.  (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra;  People v. Stuart, supra ).   Accordingly, defendant's motion is denied in its entirety.

CONCLUSION

For all of the foregoing reasons, defendant's motion is denied in its entirety.

This decision constitutes the decision and order of the court.

FOOTNOTES

1.   The defendant in Knowles claimed that the statutory definitions of “cruelty” and “aggravated cruelty,” and the lack of definitions for “extreme physical pain” and “especially depraved or sadistic manner,” rendered the statute facially vague.   The defendant also claimed that the statute was vague as applied to him, where he was accused of kicking an eight-month-old dog down a walkway, picking it up, and throwing it against a brick wall.

MARCY L. KAHN, J.