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Criminal Court, City of New York.

The PEOPLE of the State of New York, Plaintiff, v. Barbara GORDON, Defendant.


Decided: October 04, 2018

Eric Gonzalez, Kings County District Attorney, By ADA Daniel C. Davidson, 350 Jay Street, Brooklyn, NY 11201-2908, 718 250-2413 Tina Loungo, Esq., By Ragni Kidvai, Esq., The Legal Aid Society, Attorney for Defendant, 111 Livingston Street, Brooklyn, NY 11201, 718 243-6455

 Procedural History

Defendant was arraigned on February 23, 2018, charged with violating Agricultural and Markets Law (AML) § 353, Overdriving, Torturing and Injuring Animals or Failure to Provide Proper Sustenance for Animals, a class A misdemeanor. It is alleged that defendant neglected to provide a dog that was locked up in the yard of her residence, with food, water or proper shelter, permitting the dog to slowly starve, and become emaciated.

By Notice of Motion dated August 13, 2018, defendant moves to dismiss the accusatory instrument in the interest of justice pursuant to Criminal Procedure Law (CPL) 170.40. The People filed opposition to the motion on August 31, 2018.

For the reasons that follow, defendant's motion is denied.

The Parties' Contentions

In addressing the factors enumerated in CPL 170.40,1 defendant's primary argument is that, although the dog was harmed, she is not the owner of the dog, nor is she responsible for the dog. She asserts that the “dog belongs to her abusive and estranged husband, daughter and daughter's boyfriend, and is in the yard attached to their apartments ․” and that she “lives on the second floor and does not use the backyard” (Def. Aff., ¶ 6). She adds that when her husband went to Florida, he left the dog in the care of the daughter and the daughter's boyfriend, and placed the dog in the backyard attached to their ground floor apartment.

Defendant asserts that she has no prior involvement with the criminal justice system, and that she is a 54-year-old mother, and a law-abiding, hardworking, productive member of the community and an active member of her church. She explains that she has been and continues to be subjected to physical and emotional abuse by her estranged husband and does not interfere with the lives of her family members in an attempt to protect herself from ongoing violence. She adds that she is embroiled in a long family court domestic violence and custody battle, precipitated by her husband relocating to Florida with their son without her consent.

Defendant argues that the complaint should be dismissed in the interest of justice, that if she was convicted, she would lose the ability to continue working as a home health aide. She further argues that it would be a travesty to punish her, a victim and survivor of her abusive husband's actions. She also asserts that dismissal would have a positive effect on the community because she would be able to work and continue caring for her community, and it would bolster public confidence in the criminal justice system by not punishing her for her husband's behavior.

The People counter that the complaint should not be dismissed in the interest of justice. They point out that violation of AML § 353 is a class “A” misdemeanor, and that the failure to provide sustenance to an animal is serious. It is alleged that defendant permitted a dog to slowly starve, that the dog was less than 70% of its ideal body weight at the time of defendant's arrest, and that a lack of care caused this dog to suffer needlessly. The accusatory instrument indicates that defendant stated, in sum and substance, that she is the owner of the dog. They point out that defendant lives at the location, was aware of the dog's presence, and maintained custody and control over the dog. Furthermore, they assert that AML § 353 does not require proof of an ownership interest in the dog. Rather, a violation can be established upon proof that defendant was entrusted with care of an animal and failed to provide necessary sustenance.

The People also argue that it is important to hold defendant accountable for her inaction to deter both defendant and others from animal cruelty, and that the public has the right to expect that courts take animal torture, cruelty and abandonment seriously, and will enforce the laws where there has been a violation.

Legal Analysis

While neither party addressed the issue, defendant's motion is untimely. CPL 255.20 (1) requires that all pre-trial motions must be filed no later than 45 days after arraignment. This rule applies to all motions based on the provisions of CPL Article 170 (see People v. Field, 161 AD2d 660 [2d Dept 1990]; People v. Pittman, 228 AD2d 225 [1st Dept 1996] lv to appeal denied 93 NY2d 976 [1999]; People v. Madsen, 11 Misc 3d 1067 [A] [Crim Ct, Kings County 2006] ).

While CPL 255.20 (3) does permit the court to reach the merits of a pre-trial motion filed 45 days after arraignment where good cause has been shown by the defendant which would excuse defendant's lateness, the defendant has made no such showing, and indeed has failed to address the issue at all. Therefore, the defendant's motion for an order dismissing the accusatory instrument in the interest of justice is time-barred and as such is hereby denied (People v. Anderson, 201 AD2d 658 [2d Dept 1994]; People v. Madsen, supra ).

Even if the Court found that defendant's motion is not time-barred the motion would still be denied. Dismissal of an information in the interest of justice “is required as a matter of judicial discretion by the existence of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant ․ would constitute or result in injustice” (CPL 170.40 [1]; People v. Clayton, 41 AD2d 204 [2d Dept 1973] ). It is the defendant's burden to demonstrate by a preponderance of the credible evidence that dismissal in the interest of justice is warranted (People v. Watson, 182 Misc 2d 644, 650 [Crim Ct, Bronx County 1999] ). Where this burden is not met, the court may summarily deny the motion (id.; People v. Schlessel, 104 AD2d 501, 502 [2d Dept 1984] ).

The court's discretion to dismiss an accusatory instrument in the interest of justice “is neither absolute nor uncontrolled, and is to be sparingly exercised [citations omitted]” (People v. Kelley, 141 AD2d 764, 765 [2d Dept 1988] ). In deciding the motion, the court “must examine and consider the merits of the defendant's application in light of the factors enumerated in CPL 170.40 (1) (a) through (j), and balance the interests of the defendant, the complainant and the community [citations omitted]” (Watson at 650-51).

The court need not engage in a point by point discussion of all ten (10) Clayton factors; rather, the court is required to consider the factors individually and collectively in making a value judgment that is based upon striking a sensitive balance between the interests of the individual and those of the State (People v. Harmon, 181 AD2d 34 [1st Dept 1992] ). Importantly, a motion to dismiss in the interest of justice is not intended to be a substitute for trial (People v. Prunty, 101 Misc 2d 163, 168 [Crim Ct, Queens County 1979]; see also People v. McConnell, 11 Misc 3d 57, 61-62 [App Term 2d Dept 2006] ). In the present case, while defendant claims that she is not the owner of the dog, nor is she responsible for the dog, a motion to dismiss in the interest of justice is not a substitute for the fact finding process. Rather, “[t]hat defense is more appropriately considered at trial” (People v. Khan, 15 Misc 3d 1131[A][Crim Ct, New York County 2007], citing People v. Litman, 99 AD2d 573, 574 [3rd Dept 1984] ).

Further, although defendant points out that she has had no prior involvement with the criminal justice system, defendant's “lack of a prior criminal record, standing alone, does not prevent prosecution and conviction on the current charge [ ] [citations omitted]” (People v. Vurckio, 162 Misc 2d 876, 882 [Crim Ct, Kings County 1994] ), nor is it in itself a sufficient reason to warrant dismissal in the interest of justice (Kelley at 765). Moreover, defendant's claim that she would lose her job as a home health care aide, which would impose a hardship on her, does warrant dismissal in the interest of justice (People v. Doe, 158 Misc 2d 863, 868 [Crim Ct, New York County 1993] ).

This Court also finds that defendant's contention that there is no complainant is likewise insufficient to warrant dismissal. To the contrary, the nature of the victim in the present case warrants special consideration of the seriousness and circumstances of the offense, the extent of harm caused by the offense, and the impact of dismissal upon the confidence of the public in the criminal justice system (CPL 170.40 [1] [a], [b] and [h] ). Even viewing animals as property, common sense dictates that failure to provide sustenance to the dog, caused the dog in this case to suffer needlessly (People v. Curcio, 22 Misc 3d 907, 915 [2008] ). “By enacting Agriculture and Markets Law § 353, our Legislature has made a societal determination that animals, including dogs, should be protected from abuse or neglect” (id.).

This view comports with an emerging awareness of the injustice of treating animals as “things,” and present efforts to change the status of non-human animals from “things” to legally recognized “persons,” for the purpose of habeas corpus protection. The Court of Appeals, in Matter of Nonhuman Rights Project, Inc. v. Lavery, 31 NY3d 1054 [2018], denied leave to appeal from the Appellate Division, First Department's denial of a writ of habeas corpus for two chimpanzees, on the grounds that primates did not meet the definition of a “person.” Justice Eugene M. Fahey, concurring, wrote, that:

The reliance on a paradigm that determines entitlement to a court decision based on whether the party is considered a “person” or related to the category of a “thing” amounts to a refusal to confront a manifest injustice. Whether a being has the right to seek [relief] through the writ of habeas corpus should not be treated as a simple either/or proposition ․

The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a “person,” there is no doubt that it is not merely a thing (id. at 1059).

Notwithstanding the issue whether or not animals are “persons” for the purpose of habeas corpus relief, the Court finds that their protection from abuse and neglect are very important considerations in the present case.

Although defendant addresses all of the points under CPL 170.40 (1) her arguments are not persuasive and do not rise to the level appropriate for a dismissal in the interest of justice.

Reservation of Rights

The portion of defendant's motion seeking the right to make further motions is granted to the extent provided for in CPL 255.20 (3).


In sum, defendant's motion to dismiss in the interest of justice is denied.

The foregoing constitutes the Decision and Order of the Court.


1.   CPL 170.40 (1) provides that the court must, to the extent applicable, examine and consider, individually and collectively, the following: The seriousness and circumstances of the offense; The extent of harm caused by the offense; The evidence of guilt, whether admissible or inadmissible at trial; The history, character and condition of the defendant; Any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; The purpose and effect of imposing upon the defendant a sentence authorized for the offense; The impact of a dismissal on the safety or welfare of the community; The impact of a dismissal upon the confidence of the public in the criminal justice system; Where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; Any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

Adam D. Perlmutter, J.