[Dean's World] Ron Coleman: Law and Order: Special Victims Unit

[notify at powerblogs.com]

Posted by Ron Coleman:
Law and Order:  Special Victims Unit
http://www.deanesmay.com/posts/1144183631.shtml


     The defendant argues that his "stomping of young Juan's pet
     goldfish" is a misdemeanor pursuant to Agriculture and Markets Law
     §353 (unjustifiable killing of any animal, whether wild or tame),
     and not a felony because a fish is not a "companion animal" and his
     "stomping" did not constitute "aggravated cruelty" within the
     meaning of the statute.

     Agriculture and Markets Law §353-a(1) 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 term "companion animal" is defined in §350(5):

     "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. "Pet" or "companion animal" shall not include
     a "farm animal" as defined in this section.

     The defendant contends that a fish is not a companion animal
     because it is not domesticated and because there is no reciprocity
     or mutuality of feeling between a fish and its owner, such as there
     is between a dog or a cat and its owner.

     In the absence of a definition in the statute, the defendant,
     citing 4 Am. Jur. 2d, Animals §2, p. 346, Lawyers Cooperative
     Publishing (1995), defines "domesticated animals" as those that "no
     longer possess the disposition or inclination to escape," and
     claims that "if dropped in a pond and offered the opportunity to
     swim away, a goldfish will do so without any hesitation and not
     look back". He maintains that the statute's reference to "any
     other" domesticated animal limits "companion animals" to those that
     are similar to dogs or cats, that is, those with a degree of
     sentience sufficiently elevated to enable them to enter into a
     relationship of mutual affection with a human being. Furthermore,
     "[b]eloved household pets (fish) may be, but 'companion animals' in
     the same vein as dogs or cats they are not".

     The defendant's contention that all household pets are equal but
     some are more equal than others is manifestly not derived from the
     statute. The Legislature simply did not require a reciprocity of
     affection in the definition of "companion animal." To the contrary,
     the statutory language is consistent with the People's contention
     that, "domesticated" is commonly understood to mean "to adapt (an
     animal or plant) to life in intimate association with and to the
     advantage of humans". Thus, a goldfish such as the one herein is a
     domesticated rather than a wild animal within the common meaning of
     the term. Moreover, the goldfish was, as the statute requires,
     "normally maintained in or near the household of the owner or
     person who cares for [them]." Indeed, acknowledging that the
     goldfish is one of the most common household pets, defense counsel
     stipulated at trial that there are "millions of fish owners
     throughout the country".

     The defendant's argument that goldfish are not domesticated animals
     because given the opportunity they would leave home is without
     merit. While this trait arguably distinguishes fish from dogs and,
     probably to a lesser extent cats, it fails to take into account
     that many other animals commonly considered pets, such as hermit
     crabs, gerbils, hamsters, guinea pigs and rabbits, would depart for
     less confining venues and greener pastures if given the
     opportunity. Loyalty, if that is what it is, is merely another
     characteristic urged by defendant - but not included by the
     Legislature - as a defining feature of a companion animal.

     Moreover, Agriculture and Markets Law §353-a(2) provides that
     "[n]othing contained in this section shall be construed to prohibit
     or interfere in any way with anyone lawfully engaged in hunting,
     trapping, or fishing . . . ." (emphasis added). This provision
     would be superfluous if a fish could not be considered a companion
     animal.

     While the defendant maintains that the statute's definition of
     "companion animal" is unconstitutionally vague, we find, as did the
     trial court, the statute sufficiently clear to apprise a person of
     ordinary intelligence that the sort of conduct in which the
     defendant engaged, comes within the statute's prohibition. See
     United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98
     L.Ed. 989, 996 (1954).

   People, respondent v. Michael Garcia, defendant - appellant --
   APPELLATE DIVISION, FIRST DEPARTMENT, SUPREME COURT OF NEW YORK
   (Decided March 28, 2006)

   (Reported in the [1]New York Law Journal -- subscription required)

References

   1. http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1143812709801&pStyle=decision