People v. Fritze

• Decision Date: 12 August 2010
• Docket Number: No. 2010NA009192.,2010NA009192.
• Citation: 957 N.Y.S.2d 638,2010 N.Y. Slip Op. 51413,28 Misc.3d 1220
• Parties: The PEOPLE of the State of New York, v. Michael FRITZE, Defendant.
• Court: New York District Court

28 Misc.3d 1220

957 N.Y.S.2d 638

2010 N.Y. Slip Op. 51413

The PEOPLE of the State of New York,

v.Michael FRITZE, Defendant.

No. 2010NA009192.

District Court, Nassau County, New York, First District.

Aug. 12, 2010.

OPINION TEXT STARTS HEREHon. Kathleen Rice, Nassau County District Attorney, Attorneys for Defendant, Devane & Groder.

ANDREW M. ENGEL, J.

The Defendant is charged with overdriving, torturing, injuring and failing to provide proper sustenance to animals, abandonment of animals, failing to provide proper food and drink to an impounded animal and official misconduct, in violation of Agriculture and Markets Law §§ 353, 355 and 356, and Penal Law § 195.00(2), respectively.

The Defendant now moves for an order dismissing the accusatory instrument as facially insufficient, pursuant to CPL §§ 170.30(1)(a) and 170.35(1)(a), or, in the alternative, dismissing in the interests of justice, pursuant to CPL § 170.30(1)(g). The People oppose this motion.

FACIAL SUFFICIENCY

The information herein will be found facially sufficient where, in conformity with CPL §§ 100.15 and 100.40, it contains an accusatory part, designating the offenses charged, CPL § 100.15(2), setting forth every element thereof, People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56 (1979), and a factual part containing “a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges[,]” CPL § 100.15(3) based upon either the complainant's personal knowledge or upon information and belief. CPL § 100.15(3) The factual part, taken together with any supporting depositions, must contain non-hearsay allegations which, if true, establish every element of the offences charged, People v. Moore, 5 NY3d 725, 800 N.Y.S.2d 49 (2005); People v. Thomas, 4 NY3d 143, 791 N.Y.S.2d 68 (2005) “provid[ing] reasonable cause to believe that the defendant committed the offense[.]” People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927 (1987); CPL § 100.40(4)(b) “Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” CPL § 70.20

The factual allegations in the accusatory instrument and supporting depositions should be viewed in a light most favorable to the People, People v. Martinez, 16 Misc.3d 1111(A), 847 N.Y.S.2d 898 (Table), (Dist.Ct. Nassau Co.2007); People v. Delmonaco, 16 Misc.3d 526, 837 N.Y.S.2d 869 (Dist.Ct. Nassau Co.2007); People v. Mendelson, 15 Misc.3d 925, 834 N.Y.S.2d 445 (Dist.Ct. Nassau Co.2007) and should not be given an overly restrictive or technical reading, People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88 (2000); People v. Baumann & Sons Buses, Inc., 6 NY3d 404, 813 N.Y.S.2d 27 (2006). They must be sufficient to serve the purpose of providing the Defendant with notice enabling him to prepare for trial and to distinguish the offense sufficiently to prevent him from again being tried for the same offense. People v. McDermott, 69 N.Y.2d 889, 515 N.Y.S.2d 225 (1987); People v. McGuire, 5 N.Y.2d 523, 186 N.Y.S.2d 250 (1959) Such a showing is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Swamp, 84 N.Y.2d 725, 622 N.Y.S.2d 472 (1995); People v. Porter, 75 A.D.2d 901, 428 N.Y.S.2d 63 (2nd Dept.1980)

AGRICULTURE AND MARKETS LAW § 353

The information charging the Defendant with a violation of Agriculture and Markets Law § 353 alleges, in sum and substance, that on February 14, 2010, at approximately 11:00 p.m., the Defendant, an Animal Control Officer for the City of Long Beach, after taking possession of a cat “with a crushed stomach, mangled jaw, and blood coming from its mouth [,]” placed the cat in a box, sealed the box and left the box in the bathroom of the Freeport Animal Shelter, located at 2 Rider Place, Freeport, New York, which was closed for the night, “without making any efforts to immediately notify shelter personnel or obtain immediate care for the animal[,]” and failed to “provide a blanket, food, or water for the cat[,]” “prolong[ing] the cat's suffering until it was found, still alive and severely injured, by shelter personnel at approximately 9:00 am on February 15, 2010.” These allegations are accompanied by the supporting depositions of Stephanie Cieslik, John Curran, Elyse D'Agostino and Hal Waldman.

Stephanie Cieslik alleges, inter alia, that she is the Director and Treasurer of the Freeport Animal Shelter (“the Shelter”) and that she works as the “principal liaison between the shelter, animal control officers and law enforcement agencies, and emergency veterinary centers.” Ms. Cieslik further avers that the Shelter's regular business hours are 11:00 a.m. to 5:00 p.m., on Sundays through Tuesdays, and 11:00 a.m. to 7:00 p.m., on Wednesdays through Fridays. According to Ms. Cieslik, there is no staff at the Shelter after closing, but she remains on call twenty-four hours a day, seven days a week. Ms. Cieslik alleges that in the summer of 2009 she personally advised the Defendant how to file a report with the Shelter, where to log intake forms, where to place incoming animals and advised him of “the emergency contact procedures for after hours emergency situations involving injured animals.” Ms. Cieslik further alleges that prior to February 14, 2010 she had received several calls from the Defendant in accordance with the Shelter's police providing for a “Long Beach Animal Control Officer to call [her] personally on [her] cellular phone whenever an injured animal is recovered (at any time of day) and then make a determination whether to bring the animal to the shelter or directly to an emergency veterinarian for immediate care or to be humanely euthanized[;]” but, she did not receive any such call from him on February 14 or February 15, 2010. Finally, Ms. Cieslik alleges that on February 18, 2010 she listened to a voicemail left on the Shelter's voicemail system on February 15, 2010 at approximately 12:30 a.m. by an individual who identified himself as the Defendant, and whose voice Ms. Cieslik recognized as the Defendant's, in which the Defendant “states that he had left a cat in the shelter bathroom that was apparently hit by a car and barely breathing and that he had left paperwork on the desk.”

The supporting deposition of John Curren, who is employed as a kennel worker at the Shelter, alleges, inter alia, that on February 15, 2010, at approximately 9:00 a.m., he went into the bathroom at the Shelter and “saw a white Petco' box, which is the type of box that the Freeport Animal Shelter gives to Long Beach Animal Control Officers to collect small animals, sitting on the floor in the middle of the bathroom. The lid on the box was closed and folded shut in such a way that the box was sealed.” Mr. Curren claims that he opened the box and saw a cat inside, “in obvious distress; it wasn't moving, but it was breathing ... its mouth was completely smashed-up with several teeth crushed. There was blood coming from its nose and mouth, ... [i]t was wheezing and couldn't take normal breaths. There was nothing else inside the box: no food, water, blanket, or anything like that. It was obvious that the cat needed immediate medical care.” Mr. Curren further alleges that he took the cat to be examined by Dr. Hal Waldman, arriving at Dr. Waldman's office at approximately 9:20 a.m. During Dr. Waldman's examination of the cat, Mr. Curren observed that the cat's right side was crushed-in and saw the cat urinate on the examination table. Finally, Mr. Curren alleges that on February 18, 2010 he listened to the same voicemail discussed hereinabove and that he too recognized the voice on the message to be that of the Defendant.

Elyse D'Agostino, another kennel worker at the Shelter, alleges in her supporting deposition, inter alia, that on February 15, 2010, at approximately 9:00 a.m. she saw a white “Petco” box in the Shelter's public bathroom with a long-haired brownish cat inside. Ms. D'Agostino further alleges that she observed the cat “was still breathing, but it appeared to be in distress. Its jaw appeared to be unhinged, its front paws were twitching, and it obviously needed some immediate medical treatment ... there was no food, water, blanket, or anything else inside the box besides the injured cat.” Ms. D'Agostino also alleges that she listened to the above discussed voicemail on February 16, 2010 and that she too recognized the call to be the Defendant.

Hal Waldman's supporting deposition alleges, inter alia, that he is a doctor of veterinary medicine; that he is veterinarian for the Shelter and that he is available to them as an on-call veterinarian for any emergencies. Dr. Waldman further alleges that on February 15, 2010 he was met at the Baldwin Harbor Animal Hospital by representatives of the Shelter who brought in a cat with “its eyes closed, blood coming from its mouth, with a low heart rate and cold body temperature. The cat was unconscious but breathing. The cat's face was distorted.” After a brief examination, Dr. Waldman euthanized the cat. Finally, Dr. Waldman alleges that he did not receive any emergency calls on February 14, 2010 or during the overnight period into February 15, 2010 from any member of the Long Beach Animal Control or the Shelter.

In seeking dismissal of this count, the Defendant argues that “[n]owhere in the accusatory instrument is ( sic ) alleged that the defendant affirmatively injured the subject.” ( Groder Affirmation 5/21/10, p. 5) As a consequence thereof, the Defendant posits, that the portion of the statute which provides for the criminal responsibility of one who “overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or...