People v. Bunt

• Decision Date: 14 April 1983
• Citation: 118 Misc.2d 904,462 N.Y.S.2d 142
• Parties: The PEOPLE of the State of New York v. Bruce BUNT, Defendant.
• Court: New York Justice Court

Page 142

462 N.Y.S.2d 142

118 Misc.2d 904

The PEOPLE of the State of New York v. Bruce BUNT, Defendant.

Justice Court, Town of Rhinebeck Dutchess County.

April 14, 1983.

John R. King, Dist. Atty. (Peter M. Forman, Poughkeepsie, of counsel), for the People.

John McDonald, Rhinebeck, for defendant.

HERMAN H. TIETJEN, Justice.

Defendant moves this Court for a judgment declaring New York's Agriculture and Markets Law sec. 353 to be unconstitutional. This motion is being made pursuant to CPL 170.35 1(c). The primary question presented here is: Whether Agriculture and Markets Law sec. 353 is unconstitutional on the ground that the statute is too vague for the ordinary person to know what conduct is proscribed by the statute? The Court holds that the statute in question is not unconstitutional.

Defendant is charged in an information filed in this Court, that without provocation, and not in self defense, he brutally beat a dog with a baseball bat on February 23, 1983. The supporting deposition attached to the information by a witness who observed the event states that she heard what sounded to be a dog fight. She looked out the window toward defendant's residence and saw defendant come out of his house with a baseball bat. He "raised the bat above his head and hit Spunky in the back ... Spunky tried to run away but got caught in Shana's (female dog in heat owned by defendant and tied outside) chain." Defendant "continued hitting Spunky with the bat. I couldn't believe it and I opened my window and leaned out and screaming at him to stop but he kept hitting Spunky. Even after Spunky was lying on the ground not moving, Bruce (the defendant) repeatedly hit him in the head and body with the baseball bat. He finally stopped hitting Spunky and he walked into the house."

The statute which is the subject of this motion reads in part as follows:

"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 causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, ... or who willfully 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..."

In his application defendant sets forth three arguments: (1) That the statute is irreconcilable with the due process requirement since the series of acts specified in the introductory lines are not qualified while subsequent thereto they are qualified by the adverb "unjustifiably." (2) That by virtue of the words "willfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal..." absent the adverb qualifier unjustifiably "prohibits virtually any and all human conduct" towards animals. (3) "That the legislature did not know what the word 'animal' means ... how is anyone to guess which animals are to be included?"

New York's cruelty to animals law had its genesis as sec. 185 in the Penal Law of 1909. Prior to that, it apparently was found in the Penal Code of 1881 as sec. 655. The constitutional challenge presented by the defendant appears to be a question of first impression. This writer is not able to find any written decision in New York which sustained the constitutionality of the statute, therefore it shall be necessary to study the decisions of some of our sister states regarding their judicial interpretations of similar statutes. At common law no protection was afford to animals against the cruelty of man, seePeople v. O'Rourke, 83 Misc.2d 175, 369 N.Y.S.2d 335 (Cr.Ct., NYC 1975), 3 N.Y.Jur.2d, ANIMALS, Sec. 26, p. 600 4 Am.Jur.2d, ANIMALS, Sec. 27, p. 275. With the advent of the industrial revolution and heightened public concern for the welfare of animals, America's laws were probably patterned after the English Cruelty to Animals Act, 1849. Stat. 12 & 13 Vict. c. 92, see State v. Buford, 65 N.M. 51, 331 P.2d 1110, 82 A.L.R.2d 787 (1958).

We turn to defendant's first objection which challenges the construction of the statute and questions whether it meets the due process requirements of the United States Constitution, Amend. 14 and New York Constitution Art. 1, sec. 6. Statutes enacted by the legislature are presumed to be constitutional, Wasmuth v. Allen, 14 N.Y.2d 391, 252 N.Y.S.2d 65, 200 N.E.2d 756 (1964) app. dism'd. 379 U.S. 11, 85 S.Ct. 86, 13 L.Ed.2d 23. There exists a presumption in favor of constitutionality and when attacked this strong presumption must be overcome, see Lerner v. Casey, 2 A.D.2d 1, 154 N.Y.S.2d 461, aff'd 2 N.Y.2d 355, 161 N.Y.S.2d 7, 141 N.E.2d 533 (1956) aff'd 357 U.S. 468, 78 S.Ct. 1311, 2 L.Ed.2d 1423, and courts of original jurisdiction should not set aside a statute as unconstitutional and unless the conclusion is inescapable, see People v. Pagnotta, 25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202 (1969), People v. Cornish, 104 Misc.2d 72, 427 N.Y.S.2d 564 (Sup.Ct., Kings Co., 1980), Crotty v. New Windsor, 103 Misc.2d 378, 425 N.Y.S.2d 378 (Sup.Ct Orange Co., 1980). Nonetheless, a court of the first instance should not foresake its responsibility to declare a statute unconstitutional if such declaration would prevent clear violations of the constitution by legislative enactment, People ex rel., Wogan v. Rafferty, 77 Misc. 258, 136 N.Y.S. 4, aff'd. 154 A.D. 767, 139 N.Y.S. 572, rev'd on other grounds 208 N.Y. 451, 102 N.E. 582 (1913).

New York's current animal cruelty statute is similar to that found in other states. The statute links together a series of prohibited actions against animals. As part of its enactment the legislature elsewhere in the same chapter defined its key terms. In King v. State, 75 Okl.Cr.Rep. 210, 130 P.2d 105 (1942) the Oklahoma Criminal Court of Appeals had an opportunity to pass on a statute strikingly similar to New York's law. The statute found in Okla Stat.Ann. Title 21, sec. 1685 is therein quoted as: "Any person who shall willfully or maliciously overdrive, overload, torture, destroy or kill, or cruelly beat or injure, maim or multilate, any animal in subjugation or captivity, whether wild or tame, and whether belonging to himself or to another...; or who shall cause, procure or permit any such animal to be so overdriven, overloaded, tortured, destroyed or killed, or cruelly beaten or injured, maimed or mutilated...; or who shall willfully set on foot, instigate, engage in or in any way further any act of cruelty to any animal, or any act tending to produce such cruelty..." In sustaining the statute the court noted that while the statute is loosely drawn, nevertheless it reveals its main purpose to punish those who are cruel to animals. The statute in KING, as here, sets forth numerous prohibited acts of cruelty, see also, Moore v. State, 183 Ind. 114, 107 N.E. 1 (1914).

Contained in the New York Statute, as well as the Oklahoma law, is the act of cruelly beating or torturing an animal. The information and supporting deposition of the witness informs the defendant the crime with which he is charged. Certainly the word "cruelty" is one commonly known to an average person and it would be for a jury to determine whether the defendant acted in a cruel manner. Furthermore, the New York statute defines in Agriculture and Markets Law sec. 350 (2) that "torture" or "cruelty" includes every act, omission, or neglect whereby unjustifiable physical pain, suffering or death is caused or permitted. "The test of cruelty is the justifiability of the act or omission", see People v. O'Rourke, supra, 83 Misc.2d at 178, 369 N.Y.S.2d 335, People v. Downs, 136 N.Y.S. 440, 441 (1911). Thus, a person of ordinary intelligence could certainly, from the facts when adequately described, determine whether defendant's act was prohibited and unjustified.

Indiana upheld the constitutionality of a statute similar to New York's in Moore v. State, 183 Ind. 114, 107 N.E. 1 (1914). That statute also contained the words "cruelly beaten" and was structured similar to the Oklahoma and New York Law by linking together various prohibited acts and situations of maltreatment. In approving the law the court noted its purpose was to provide a punishment for cruelty to animals and to make clear this general purpose it enumerated a series of acts or omissions which might...