| People v Bowe |
| 2009 NY Slip Op 02863 [61 AD3d 1185] |
| April 16, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert L.Bowe, Appellant. |
—[*1] Louis K. Sira, District Attorney, Johnstown (Michael V. Viscosi of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Fulton County (Hoye, J.),rendered December 14, 2007, convicting defendant upon his plea of guilty of 11 counts of thecrime of cruelty to animals.
Defendant was charged in a 15-count indictment with numerous misdemeanor violations ofAgriculture and Markets Law § 353 after State Police discovered 15 horses on his propertyin Fulton County, some of which were dead and others which were severely emaciated. Two ofthe horses were in such a debilitated state that they had to be euthanized after they were removedfrom defendant's property. Defendant moved to dismiss certain counts of the indictment on theground, among others, that the evidence before the grand jury was legally insufficient. CountyCourt granted the motion with respect to counts 10, 12, 13 and 15 of the indictment. Defendantalso moved to dismiss the indictment on the ground that Agriculture and Markets Law §353 was unconstitutionally vague. County Court denied this motion. Defendant ultimatelypleaded guilty to the remaining counts of the indictment, but reserved his right to appeal theconstitutionality of the statute. He was sentenced to three years of probation and he now appeals.
Agriculture and Markets Law § 353 provides, in pertinent part, that "[a] person who[*2]overdrives, overloads, tortures or cruelly beats orunjustifiably injures, maims, mutilates or kills any animal, whether wild or tame. . . or deprives any animal of necessary sustenance, food or drink, or neglects orrefuses to furnish it such sustenance or drink . . . is guilty of a class Amisdemeanor." Defendant asserts that the statute is unconstitutionally vague because it fails todefine the term "necessary sustenance" and County Court improperly construed it asencompassing more than the provision of food or drink in applying the statute to defendant.
Preliminarily, we note that "[u]nder established principles of judicial restraint. . . , courts should not address constitutional issues when a decision can be reachedon other grounds" (Matter of Syquia v Board of Educ. of Harpursville Cent. SchoolDist., 80 NY2d 531, 535 [1992]). Applying this principle, we affirm the judgment ofconviction without reaching defendant's constitutional claim. Significantly, the charges of theindictment to which defendant pleaded guilty alleged not only that he failed to provide the horseswith "necessary sustenance," but also that he failed to provide them with "sufficient food ordrink." Although the plea allocution was abbreviated, the indictment specifically referenced thedeprivation of food and drink as a manner in which defendant violated Agriculture and MarketsLaw § 353, and the evidence in the record established that he did so. The statutespecifically provides that the failure to provide an animal with "food or drink" constitutes aviolation thereof (see Agriculture and Markets Law § 353). Consequently, giventhat the specifications of the charges to which defendant pleaded guilty provided an independentbasis for finding a violation of the statute, irrespective of whether or not he failed to provide"necessary sustenance," we decline to consider whether the statute was unconstitutionally vagueas applied to him. As for defendant's assertion that County Court erroneously construedAgriculture and Markets Law § 353 as a strict liability statute, we reject this claim as it isnot substantiated by the record.
Cardona, P.J., Peters, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.