People v. Garcia

• Decision Date: 28 March 2006
• Docket Number: 7863.
• Citation: 29 A.D.3d 255,812 N.Y.S.2d 66,2006 NY Slip Op 02315
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MICHAEL GARCIA, Appellant.
• Court: New York Supreme Court — Appellate Division

29 A.D.3d 255

812 N.Y.S.2d 66

2006 NY Slip Op 02315

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MICHAEL GARCIA, Appellant.

7863.

Appellate Division of the Supreme Court of the State of New York, First Department.

March 28, 2006.

APPEAL from a judgment of the Supreme Court, New York County (Marcy L. Kahn, J.), rendered February 23, 2004. The judgment convicted defendant, after a nonjury trial, of attempted assault in the second degree, criminal possession of a weapon in the third degree, criminal mischief in the third degree, assault in the third degree (three counts), endangering the welfare of a child (three counts), and aggravated cruelty to animals, and imposed sentence on defendant as a second violent felony offender.

Center for Appellate Litigation, New York City (Robert S. Dean of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Alice Wiseman and Donald J. Siewert of counsel), for respondent.

OPINION OF THE COURT

CATTERSON, J.

The earliest known domestic animal appears to be the dog, a companion to mankind as early as 15000 B.C. Goats, sheep, pigs and cows followed in domestication in the next 10,000 years. Horses, however, did not succumb to the lure of mankind's presence until 4000 B.C. The domestication of fish is believed to have begun much later, in China during the Tang Dynasty, around 620 A.D. The common goldfish (Carassius auratus), a member of the carp family that was first domesticated in China, is now the most commonly kept aquarium fish. The goldfish's leap from domesticated fish to family pet and companion may have happened as early as 1368 during the Ming Dynasty. The goldfish's popularity in the West began as the first public aquarium opened in London in 1853. Keeping goldfish as companions and pets in the United States has been popular since that time.

Agriculture and Markets Law § 353-a (1), "Aggravated cruelty to animals," represents the Legislature's recognition that man's inhumanity to man often begins with inhumanity to those creatures that have formed particularly close relationships with mankind. (Assembly Mem in Support of L 1999, ch 118, 1999 McKinney's Session Laws of NY, at 1585.) The scope of section 353-a (1) is a question of first impression for the Appellate Division, and the instant case compels the conclusion that its reach is broad.

On August 2, 2003, Emelie Martinez was living in an apartment with the defendant, her three children, Juan Torres, Crystal and Emaleeann, and Jesus Rabassa, an 18-year-old high school student. Juan was nine years old, Crystal eight and Emaleeann five. Also living in the apartment were two dogs, a cat, and three goldfish named after the children, Junior, Crystal and Emma.

At about 3:00 A.M., Martinez awoke on the sofa to find the defendant standing over her, holding the fish tank. She asked him what he was doing. The defendant threw the fish tank into the television set, saying, "That could have been you." The fish tank shattered, as did the television screen and a portion of a glass wall unit. The defendant also destroyed Juan's VCR by ripping it out and throwing it against the wall unit.

Eventually, the defendant and Martinez began cleaning up the mess. Juan came out of his room, with the girls behind him, crying. The defendant turned to Juan and said, "You want to see something awesome?" and stomped on Juan's fish, killing the fish. Martinez had to calm the children before she could continue cleaning up the mess.

The next day, the defendant attacked Martinez inside her bedroom. He grabbed Martinez by the right hand, and flung her onto the bed. He began punching her head and face with closed fists. One blow forced her teeth against her inner cheek and caused bleeding inside her mouth. After punching her three or four times, the defendant allowed her to get up and she went into the bathroom, where she tried to stop the bleeding by rinsing her mouth with cold water.

The defendant followed her into the bathroom and told Martinez to go back to the bedroom, which she did. She sat down on the bed, and the defendant, after closing the door, climbed onto her, pinned her down with his knee on her chest, and began choking her with his right hand. She had trouble breathing and could not scream for help. While the defendant was choking Martinez with his right hand, he reached into his pants pocket with his left, and pulled out a gravity knife he always carried. Martinez managed to "wiggle" her way through, break loose and scream for her son. The defendant dropped the knife on the bed, unopened. The assault eventually escalated to the point where the defendant attacked Rabassa and nine-year-old Juan. The defendant was arrested later that same day.

He was indicted for attempted assault in the first degree, pursuant to Penal Law §§ 110.00 and120.10 (intent to cause serious physical injury by means of a deadly weapon or a dangerous instrument). At his nonjury trial, in his motion for a trial order of dismissal, the defendant argued that the evidence was insufficient to prove either an intent to cause serious physical injury or an attempt to do so with a dangerous instrument. He argued that the evidence of weapon possession in the third degree pursuant to Penal Law § 265.02 (1) (commission of fourth-degree weapon possession after having previously been convicted of a crime) was also insufficient because he did not intend to use the knife against Martinez. The defendant pointed out that he could have used the knife against her if that had been his intent, but he did not use it.

The prosecutor argued that the defendant took the knife out of his pocket "because the assault was escalating" and that when he did so his intent was to commit serious physical injury. He further argued that because the defendant intended to use the knife unlawfully, the evidence was sufficient to sustain the weapon possession count.

At the close of arguments and summations, the court observed that it had the power, sua sponte, to consider the lesser included offense of attempted second-degree assault pursuant to Penal Law §§ 110.00 and 120.05 (1) (with intent to cause serious physical injury, attempting to cause such injury, no weapon). Defense counsel objected that the parties had summed up on the theory of the defendant's attempt to cause serious physical injury with the use of the knife, not of his hand. The court then dismissed the attempted first-degree assault count and found the defendant guilty of attempted second-degree assault.

On the date of sentence and at the defendant's request, the court stated that it found the attempted second-degree charge proved beyond a reasonable doubt based on all the defendant's conduct inside the apartment. This conduct included the pulling of the knife out of his pants pocket as well as his beating of Martinez with his fists before he pulled the knife. The court later said that it did not think the knife was intended to cause serious physical injury but rather to menace Martinez, and that it convicted the defendant on the theory of attempted assault in the second degree with intent to cause serious physical injury, without a weapon.

The trial court also convicted the defendant of aggravated cruelty to animals, a felony. The court determined that the pet goldfish of Martinez and her children was a companion animal within the meaning of Agriculture and Markets Law § 353-a (1) and § 350 (5), and that the statute is not unconstitutionally vague.

"ALL CREATURES GREAT AND SMALL"^*

The defendant argues that his "stomping of young Juan's pet goldfish" is a misdemeanor pursuant to Agriculture and Markets Law § 353 (unjustifiable killing of any animal, whether wild or tame), and not a felony because a fish is not a "companion animal" and his "stomping" did not constitute "aggravated cruelty" within the meaning of the statute.

Agriculture and Markets Law § 353-a (1) provides "A person is guilty of aggravated cruelty to animals when, with no justifiable purpose, he or she intentionally kills or intentionally causes serious physical injury to a companion animal with aggravated cruelty. For purposes of this section, `aggravated cruelty' shall mean conduct which: (i) is intended to cause extreme physical pain; or (ii) is done or carried out in an especially depraved or sadistic manner."

The term "companion animal" is defined in section 350 (5):

"`Companion animal' or `pet' means any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal. `Pet' or `companion animal' shall not include a `farm animal' as defined in this section."

The defendant contends that a fish is not a companion animal because it is not domesticated and because there is no reciprocity or mutuality of feeling between a fish and its owner, such as there is between a dog or a cat and its owner.

In the absence of a definition in the statute, the defendant, citing 4 Am Jur 2d, Animals § 2 (at 346 [Lawyers Coop Publ 1995]), defines "domesticated animals" as those that "no longer possess the disposition or inclination to escape," and claims that "if dropped in a pond and offered the opportunity to swim away, a goldfish will do so without any hesitation and not look back." He maintains that the statute's reference to "any other" domesticated animal limits "companion animal[s]" to those that are similar to dogs or cats, that is, those with a degree of sentience sufficiently elevated to enable them to enter into a relationship of mutual affection with a human being. Furthermore, "[b]eloved household pets (fish) may be, but `companion animals' in the same vein as dogs or cats they are not."

The defendant's contention that all household pets are equal but some are more equal than others is manifestly not derived from the statute. The Legislature simply did not require a reciprocity of affection in the definition of ...