Legal Aid Society, Brooklyn (
Clinton Hughes of counsel), for defendant.
Charles J. Hynes, District Attorney (Anita Channapati of counsel), for plaintiff.
OPINION OF THE COURT
MARGARITA LOPEZ TORRES, J. This case presents the court with a novel question: Does a pet owner commit an act of cruelty, for which he or she could be prosecuted criminally, by not providing an ill pet (in this case, terminally ill) with medical care? To answer this question the court must review not only the statute forbidding cruelty against animals, but also constitutional due process principles requiring fair notice of conduct that is criminally proscribed, as well as our current standards of morality with respect to pet owners' duty to provide medical care for their animals. Defendant is charged with overdriving, torturing and injuring animals and failure to provide proper sustenance (Agriculture and Markets Law § 353). Defendant has moved for dismissal of the information on the ground that the statute is unconstitutionally vague.
Relevant Facts
The factual part of the information in this case states as follows: "Deponent [a special investigator of the ASPCA] states that, at the above time and place, the deponent observed a dog sitting behind a fence at the above-mentioned location and that said dog did have difficulty walking due to large tumor hanging from said dog's stomach and that said tumor was bleeding. "The deponent is further informed by the defendant's own statements that the defendant resides at the above-mentioned location and that the defendant is the owner of the dog and that the defendant owned the dog for approximately six years, he knew that she had a tumor and was in pain, he decided not to provide medical treatment for the dog because it was to [sic] expensive. "The deponent is informed by Doctor Bunni Tan of the APCA that the informant did examine the above-mentioned dog, and that said dog did have a very large mammory [sic] gland tumor on the lower stomach area, and that the surface of said tumor had several ulcerations that leaked fluid causing a chronic medical condition, which was neglected to the point where her tumor was uncomfortable and painful for the dog, and that the tumor was approximately the size of a large grapfruit [sic] and that said tumor required a painful and extensive surgery and that said dogs [sic] condition is terminal." The parties' submissions present the following additional facts for the court's consideration: On February 11, 2003, American Society for the Prevention of Cruelty to Animals (ASPCA) special investigator Anne-Marie Lucas visited defendant's house in Brooklyn in response to an anonymous call concerning a dog with a large tumor hanging from its stomach. Once there, Ms. Lucas found four dogs inside a fenced-in yard. One of the dogs had a large bleeding tumor. Ms. Lucas spoke with a man who identified himself as someone who was taking care of the dogs while their owner was on vacation. He identified defendant as the owner of the dogs. Ms. Lucas took the dog with her and transported it to the ASPCA hospital in Manhattan where the dog eventually had surgery and was diagnosed with terminal cancer. Upon his return from vacation, at Ms. Lucas' request, defendant went to the ASPCA offices to meet with her. The minutes of a hearing held before another judge of this court, pursuant to People v Huntley (15 NY2d 72 [1965]), reveal that during that meeting, defendant acknowledged to Ms. Lucas that he was the owner of the dog, that he knew the dog had a tumor, and that he had not provided medical care to the dog because of his limited finances. Defendant added that he was familiar with cancer because a relative had had cancer and painful chemotherapy and stated that he believed that the dog should live out her life without intervention. Ms. Lucas then arrested defendant.
The Parties' Contentions
In support of his motion, defendant argues that Agriculture and Markets Law § 353 is vague because the terms "necessary sustenance" and "unjustifiable physical pain" (this latter one included in the definition of "torture" and "cruelty" of Agriculture and Markets Law § 350 [2]) are not specific enough to provide notice that an owner must provide medical care to a terminally ill animal. In opposition, the People argue that Agriculture and Markets Law § 353 is not so vague as to violate due process standards and that the statute gave enough notice to defendant that he was required to get veterinary care for his dog. In particular, the People argue that "[t]he intent of the legislature and wording of the applicable statute" make it clear that the term sustenance means more than food and drink. The People also argue that the statute's failure to define the term "unjustifiable" does not make the statute vague because that term has "an extremely common" meaning in the vernacular.
The Statutes in Question
Section 353 of the Agriculture and Markets Law provides:
"A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another, or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, or who wilfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a misdemeanor, punishable by imprisonment for not more than one year, or by a fine of not more than one thousand dollars, or by both."
"Torture" or "cruelty" is defined by section 350 (2) of the Agriculture and Markets Law as "includ[ing] every act, omission, or neglect, whereby unjustifiable physical pain, suffering or death is caused or permitted."
Discussion
The Void-for-Vagueness Doctrine
Consistent with the concept of basic fairness ingrained in our State and Federal Constitutions, due process requires that a penal statute be sufficiently definite by its terms so as to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden by the law. (People v Bright, 71 NY2d 376, 382-383 [1988].) This axiomatic principle has been a part of our country's jurisprudence for almost two centuries. (People v Stuart, 100 NY2d 412, 418 [2003].) "In a challenge to the constitutionality of a penal law on the grounds of vagueness, ... a two-pronged analysis is required. First, the statute must provide sufficient notice of what conduct is prohibited; second, the statute must not be written in such a manner as to permit or encourage arbitrary and discriminatory enforcement." (People v Bright, supra at 382.) With respect to the first prong, the rationale behind the requirement that a penal statute provide sufficient notice is the notion "that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." (Id. [internal quotation marks omitted], citing United States v Harriss, 347 US 612, 617 [1954].) For this reason the Legislature may not criminalize conduct that is inherently innocent merely "because such conduct is `sometimes attended by improper motives,' since to do so would not fairly inform the ordinary citizen that an otherwise innocent act is illegal." (People v Bright, supra at 383.) In determining the sufficiency of the notice, a statute that does not implicate First Amendment issues must of necessity be examined in the light of the conduct with which a defendant is charged. (United States v National Dairy Prods. Corp., 372 US 29, 33 [1963]; United States v Powell, 423 US 87, 92 [1975].) The issue that must be determined by the court is whether the statute provides an adequate warning as applied in a specific situation, i.e., the facts before the court. (Mitchell v Fischer, 300 AD2d 490 [2d Dept 2002]; People v Nelson, 69 NY2d 302 [1987].) The possibility that the statute may be vague as applied to other hypothetical situations will not be considered. (Mitchell v Fischer, supra ; People v Nelson, supra .) A statute is not vague merely because it fails to define a word or term. (People v Knowles, 184 Misc 2d 474, 477 [Rensselaer County Ct 2000].) Similarly, a statute does not need to designate every particular situation or circumstance that calls for the imposition of the penalty. (People v Bel from, 124 Misc 2d 185, 188-189 [Sup Ct, Queens County 1984].) The test is whether the language used "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." (United States v Petrillo, 332 US 1, 8 [1947].)
Necessary Sustenance
The court in this case must then determine whether Agriculture and Markets Law § 353 gives sufficient notice to a pet owner that not providing medical care to an ill animal is a crime. In particular, the court should determine whether the term "necessary sustenance" includes the provision of medical care to an animal, such that defendant should have been on notice of medical care, this court declines to follow it. "[S]atutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction." (McKinney's Cons Laws of NY, Book 1, Statutes § 94.) "[T]he language of an enactment should be given its plain meaning, or its everyday commonplace interpretation." (Id., Comment, at 194.) The Oxford English Dictionary (Oxford Univ Press [1971]) defines sustenance as, inter alia, "means of sustaining life; food, victuals"; "a kind of quantity of food"; "nourishment"; and "the action of sustaining life by food." These definitions comport with the popular meaning of the term as used in the vernacular, that is, that sustenance refers to food and nourishment, and the court will adopt this meaning in interpreting the statute. This court's holding that the term "sustenance" as used in the statute does not refer to the provision of medical care is consistent with the finding of the highest appellate court in the nation to interpret the meaning of the term. In Howell v State (180 Ga App 749, 350 SE2d 473 [1986]), the Court of Appeals of Georgia held, in the context of a statute proscribing cruelty to children, that denial of necessary medical care to a child "does not constitute a denial of `sustenance.'" (Id., 180 Ga App at 752, 350 SE2d at 476.) Citing the Georgia Supreme Court, the Howell court stated that "[n]ecessary sustenance" was "that which supports life; food; victuals; provisions ... that necessary food and drink which is sufficient to support life and maintain health." (Howell, 180 Ga App at 751, 350 SE2d at 476 [internal quotation marks omitted], quoting Caby v State, 249 Ga 32, 33, 287 SE2d 200, 201 [1982].) The primary consideration in interpreting a statute is to "ascertain and give effect to the intention of the Legislature," and the plain meaning of the statutory text is the best evidence of such intent. (Riley v County of Broome, 95 NY2d 455, 463 [2000].) The court finds that the plain meaning of the term "sustenance" in the statute does not include medical care. Therefore, the provision making it a violation of the statute to fail to provide necessary sustenance does not afford notice to a person of ordinary intelligence that not providing medical care for an animal is a violation of the statute.
Unjustifiable Physical Pain
The court must also determine whether, when measured by common understanding and practice, as well as society's sense of morality, the language of the statute, and specifically, the transplants—will that level of treatment be required; will mental health treatment be required); and how would that standard be judged (what kind of expense is it mandated to be incurred to avoid prosecution)? It will also create ethical issues that are difficult to discern in the absence of a legislative pronouncement (when is extending a pet's life permissible; when is putting an animal to death mandated; up to what point do we respect the owners' choice to refuse invasive treatment for their pets and allow them to die at home in the company of their human and nonhuman companions, rather than in a strange and antiseptic environment). Finally, the court is very mindful that animals are living creatures that feel pain and experience suffering. If we, as a society, have arrived at the point where we feel that the provision of medical care to alleviate or avoid pain and suffering is a duty undertaken by pet owners toward their pets, and that failure to fulfill this duty should be a crime, it is incumbent upon our Legislature to enact a provision that clearly sets the standard for—and gives notice of—the proscribed conduct. The legislatures of other states have already done so. (See, e.g. 18 Pa Cons Stat Ann § 5511 [c] [Pennsylvania anticruelty statute] and Md Code [Crim Law] § 10-604 [Maryland statute], both providing that depriving an animal of veterinary care is a crime.) In fact, our own Legislature has deemed it appropriate to require pet dealers to provide appropriate and necessary veterinary care to animals in their custody and possession. (See, Agriculture and Markets Law § 401 [5].) But it has failed to impose the same duty on animal owners and, until it does, the court will not substitute its own sensibilities for those of the Legislature and is constrained to find that a pet owner may not be prosecuted under Agriculture and Markets Law § 353 for failing to provide an ill pet with medical care.
Conclusion
The court finds that Agriculture and Markets Law § 353 is unconstitutionally vague as applied to the facts of this case. In particular, the court finds that section 353 does not give notice to a person of ordinary intelligence that he or she is obligated to provide veterinary care to a terminally ill animal. Therefore, defendant's motion to dismiss is granted. [1] Even though the court has not been asked to, and will not, address the issue of the unconstitutional vagueness of section 353 on its face, it will point out that the language of the statute is not an example of precision and clarity (See, People v Bunt, 118 Misc 2d 904 [Just Ct, Dutchess County 1983] [noting that section 353 is constitutional but not well drafted].) The language in the current version of the statute was drafted in 1881 (see, section 655 of the Penal Code of 1881), and it has been incorporated, without major changes, into every anticruelty statute enacted since then. The statute's mandates appear extremely broad, if not infinite. For instance, the plain language of the statute seems to require the provision of sustenance to "any animal," whether "wild or tame." This provision could be read to make it a crime not to provide food or water to squirrels or birds in one's backyard or a park, as well as to animals in the wilderness. [2] The court was informed by a staff member of the New York State Legislative Library that in 1911 a fire in Albany destroyed a significant part of the State Library collection and that the legislative history documents pertaining to statutes passed prior to that year were lost as a result. [3] It should be noted that the statute that makes child neglect a crime, i.e., endangering the welfare of a child, specifically requires the provision of medical care to children. See, Penal Law § 260.10, which incorporates the definition of "neglected child" from section 1012 (f) (i) (A) of the Family Court Act. In addition, in order to charge a parent or guardian with endangering the welfare of a child as a result of child neglect, a showing must be made that the parent failed to supply medical care to the child "though financially able to do so or offered financial or other reasonable means to do so." (Family Ct Act § 1012 [f] [i] [A].) If, as reflected in this legislative pronouncement, society's standard of morality imposes a duty on parents to provide medical care for their children only if they are financially able to do so, imposing a duty on pet owners regardless of their financial ability would make certain acts a crime if committed toward an animal and yet not a crime if committed toward a child. The Legislature could not have intended to "hold a person to a higher standard of conduct with respect to an animal than toward a fellow human being." (People v Carr, 183 Misc 2d 94, 96 [Just Ct, Erie County 1999].)