| People v Moors |
| 2016 NY Slip Op 04259 [140 AD3d 1207] |
| June 2, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDavid Moors, Appellant. |
Mischel & Horn, PC, New York City (Cynthia Feathers, Glens Falls, ofcounsel), for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered January 15, 2015, convicting defendant following a nonjury trialof the crime of aggravated cruelty to animals.
While on a hunting trip on his sister's property, defendant used a bow and arrow toshoot and kill Clara, the neighbors' family dog.[FN1] As a result, defendant was chargedwith, among other things, aggravated cruelty to animals. Following a nonjury trial,County Court convicted defendant of aggravated cruelty to animals, sentenced him to sixmonths in jail and five years of probation—requiring defendant to complete 250hours of community service and surrender his weapons and his New York huntinglicense as conditions of the probation—and ordered defendant to pay $2,363 inrestitution. Defendant now appeals, and we affirm.
Defendant argues that the verdict was not supported by legally sufficientevidence[FN2] orwas against the weight of the evidence because he did not kill Clara in a depraved orsadistic manner. We disagree. As relevant here, a defendant is guilty of aggravatedcruelty to animals if "he or she intentionally kills . . . a companion animalwith aggravated cruelty" and with no justifiable purpose (Agriculture and Markets Law§ 353-a [1]; seePeople v Facey, 127 AD3d 1256, 1256-1257 [2015]). Aggravated cruelty isdefined as conduct which is either "(i) . . . intended to cause extremephysical pain; or (ii) is done or carried out in an especially depraved or sadistic manner"(Agriculture and Markets Law § 353-a [1]).[FN3]
A police officer who interviewed defendant after the killing testified that defendantadmitted that he knew he should not have shot Clara. A veterinarian who had attemptedto treat Clara explained that she had been shot in the left abdomen and had died as aresult of the wound and related internal bleeding. According to defendant, while he wasin his hunting blind, he observed Clara with his binoculars, replaced the broadhead arrowthat was in his bow with a field tip arrow and then shot Clara. Defendant conceded thathe knew Clara was not a coyote and that "everything about her appearance" wasconsistent with that of a domesticated dog. Further proof was introduced that supported areasonable inference that Clara was facing away from defendant when he shot her andthat defendant's choice in replacing a larger broadhead arrow with a smaller field tiparrow was likely to save defendant money while risking a longer and more painful deathfor Clara. Additional proof established that Clara suffered for at least 20 minutes aftershe was [*2]shot, and that period began with her"screeching" and "flopping" on the ground and ended with her "choking and. . . gurgling" in the back end of her owners' vehicle as she was rushed to ananimal hospital. Given the foregoing, we find adequate proof to support the conclusionthat defendant carried out his killing of Clara in an especially depraved or sadisticmanner by shooting her in the abdomen with an arrow that was likely to prolong hersuffering (see Agriculture and Markets Law § 353-a [1]; see generally People vDegiorgio, 36 AD3d 1007, 1009 [2007], lv denied 8 NY3d 921 [2007],cert denied 552 US 999 [2007]). Further, we defer to County Court'sdetermination to credit the aforementioned evidence rather than other self-servingtestimony that defendant provided, and therefore we conclude that the verdict is notagainst the weight of the evidence (see People v Augustine, 89 AD3d 1238, 1242 [2011],affd 21 NY3d 949 [2013]; People v Degiorgio, 36 AD3d at 1009).Finally, we perceive no abuse of discretion or extraordinary circumstances that wouldwarrant any reduction in defendant's sentence, which included a jail term less than thepresumptive statutory minimum (see Penal Law § 70.00 [2] [e]; [3][b]; [4]; People v Lohnes,112 AD3d 1148, 1150 [2013]).
Egan Jr., Lynch, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed, and matter remitted to the County Court of Ulster County for furtherproceedings pursuant to CPL 460.50 (5).
Footnote 1:Clara was a 38-poundAustralian Shepard mix.
Footnote 2:Although this argumentis unpreserved based upon defendant's general trial order of dismissal, we necessarilyaddress the adequacy of the evidence as to the elements of the crime in our weight of theevidence review (see People vDanielson, 9 NY3d 342, 349 [2007]; People v Cruz, 131 AD3d 724, 725 [2015], lvdenied 26 NY3d 1087 [2015]).
Footnote 3:At trial, defendantconceded that the proof established that he intended to kill Clara and that she was acompanion animal. Otherwise, in reaching its verdict, County Court explicitly found thatthe proof did not support defendant's conviction on a theory that he acted withaggravated cruelty by intending to cause Clara extreme physical pain.