PEOPLE v. WENDOVER

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Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Respondent, v. Michael WENDOVER, Appellant.

Decided: September 25, 2006

Present:  RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ. Whalen & Whalen & Whalen, Dover Plains (Thomas J. Whalen of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie (Bridget Rahilly Steller of counsel), for respondent.

Appeal from a judgment of the Justice Court of the Town of Dover, Dutchess County (R. Wren Abrams, J.), rendered October 24, 2005.   The judgment convicted defendant, after a nonjury trial, of discharging a firearm within 500 feet of a dwelling.

Judgment of conviction affirmed.

Following an incident in which defendant killed a dog that had been attacking defendant's domestic goats, defendant was charged with inhumane destruction of a dog (Agriculture and Markets Law § 374[2][c] ), firing a weapon over a public roadway (Environmental Conservation Law § 11-0931[4][a][1] ), and discharging a weapon within 500 feet of a dwelling (Environmental Conservation Law § 11-0931 [4][a][2] ).   Defendant was acquitted of the first two charges but was convicted of the latter offense.

Agriculture and Markets Law § 121-a(2) provides that in certain circumstances, the owner or caretaker of a farm or domestic animal attacked by a dog “may destroy such dog, and no liability in damages or otherwise shall be incurred on account of such destruction.”   Contrary to defendant's contention, the criminal liability incurred by defendant herein was not “on account of such destruction” but on account of the method defendant employed, discharging a firearm within 500 feet of a neighbor's dwelling.   The People established beyond a reasonable doubt, and the court below, as trier of fact, properly found, that no circumstances existed in the case at bar to demonstrate justification (see Penal Law § 35.05[2] ) as a defense to the charge of discharging a weapon within 500 feet of a dwelling.   The facts established at trial indicated that the dog was leaving the premises, after attacking a domestic animal, when shot, and that defendant had pursued the dog to shoot it.   Thus, although defendant's action in killing the dog was found to be justifiable pursuant to Agriculture and Markets Law § 121-a(2) thereby establishing a defense to the Agriculture and Markets Law § 374(2)(c) charge of inhumane destruction of a dog, the People established that no “imminent ․ private injury [was] about to occur” that would support the Penal Law § 35.05 defense of justification to the charge of discharging a weapon within 500 feet of a dwelling (see People v. Bolton, 213 A.D.2d 660, 624 N.Y.S.2d 210 [1995] ).

RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ., concur.