| People v Facey |
| 2015 NY Slip Op 02810 [127 AD3d 1256] |
| April 2, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPaul T. Facey, Appellant. |
Mark Schneider, Plattsburgh, for appellant.
Kristy L. Sprague, District Attorney, Elizabethtown (Michele A. Bowen of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered October 13, 2013, upon a verdict convicting defendant of the crime ofaggravated cruelty to animals.
Following a jury trial, defendant was convicted, as charged, of aggravated cruelty toanimals stemming from the killing of a pit bull in July 2012. He was sentenced to sixmonths in jail plus five years of probation. Defendant appeals.
We first find that defendant's conviction was supported by legally sufficientevidence. As relevant here, a "person is guilty of aggravated cruelty to animals when,with no justifiable purpose, he or she intentionally kills . . . a companionanimal with aggravated cruelty," which is defined as conduct "intended to cause extremephysical pain . . . [or] done or carried out in an especially depraved orsadistic manner" (Agriculture and Markets Law § 353-a [1]; see People v Degiorgio, 36AD3d 1007, 1008 [2007], lv denied 8 NY3d 921 [2007], cert denied552 US 999 [2007]; People vGarcia, 29 AD3d 255, 259-260 [2006], lv denied 7 NY3d 789 [2006]).A companion animal "means any dog or cat" (Agriculture and Markets Law§ 350 [5]), which includes a pit bull (see People v Siplin, 66 AD3d 1416, 1417 [2009], lvdenied 13 NY3d 942 [2010]). Although he was admittedly present at the scene whilethe pit bull was still alive, defendant maintains that there is no evidence that he killed thedog and emphasizes no weapon was ever found. The neighbor testified that after hearingthe screech of a dog coming from the woods behind his yard, he went [*2]to investigate and encountered defendant, who was coveredin blood and crouched down with his hands on the dog. The dog was still alive, but itsthroat had been slashed. The neighbor testified that defendant was not comforting thedog, and had an expression of fear or panic when the neighbor inquired what hadhappened. Fearing for his own safety, the neighbor returned home and called the police.A state trooper responded to the scene and found defendant at home with a bandagedthumb, which defendant explained had been cut earlier that day at work. A veterinariantestified that there was a deep laceration in the dog's throat, which must have beenforcibly cut with a sharp object. She explained that the dog bled to death in no more than10 minutes. Although defendant maintains that, as he arrived, he saw two men incamouflage leaving the scene headed in the direction of the neighbor's house, theneighbor did not see anyone else in the area. Viewing this evidence in the light mostfavorable to the People, there was a valid line of reasoning and permissible inferences bywhich the jury could conclude that defendant committed this crime (see People v Augustine, 89AD3d 1238, 1242 [2011], affd 21 NY3d 949 [2013]; People vDegiorgio, 36 AD3d at 1009; People v Garcia, 29 AD3d at 261).
Next, defendant contends that County Court erred in rendering a supplemental juryinstruction that effectively shifted the burden of proof to defendant to prove his owninnocence. While defendant failed to preserve this issue through an appropriateobjection, given the nature of the challenged instruction, we exercise our interest ofjustice jurisdiction to take corrective action (see CPL 470.15 [3] [c]; People vThomas, 50 NY2d 467, 472 [1980]; see also People v Konigsberg, 137AD2d 142, 147 [1988], lv denied 72 NY2d 912 [1988]). Without question, thePeople bear the burden of proving a defendant's guilt beyond a reasonable doubt, andCounty Court so charged the jury twice before giving the instruction at issue. Afterreceiving a further note from the jury requesting definitions for certain terms, including"depraved" and "sadistic," the court determined that it would "be beneficial. . . to once again go over the definition of aggravated cruelty." In doing so,however, the court advised the jury: "Thus, if you find beyond a reasonable doubt thatthe defendant did not engage in conduct which caused the animal extreme pain or whichwas not done or carried out in an especially depraved or sadistic manner, you must findthe defendant not guilty." This charge impermissibly shifted the burden of proof bysuggesting that defendant needed to prove his innocence beyond a reasonable doubt.Compounding the problem, the charge was rendered shortly before the jury rendered theguilty verdict. In our view, this was a fundamental error, requiring the reversal of thejudgment and a new trial (see Sullivan v Louisiana, 508 US 275, 278 [1993];People v Antommarchi, 80 NY2d 247, 251-252 [1992]; People v Victor,62 NY2d 374, 377 [1984]).
To the extent not rendered academic, defendant's remaining contentions have beenreviewed and are without merit.
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the judgment is reversed,as a matter of discretion in the interest of justice, and matter remitted to the County Courtof Essex County for a new trial.