People v. Minton

• Decision Date: 03 September 1996
• Parties: The PEOPLE of the State of New York, Plaintiff, v. James MINTON, Defendant.
• Court: New York City Court

Page 692

647 N.Y.S.2d 692

170 Misc.2d 272

The PEOPLE of the State of New York, Plaintiff, v. James MINTON, Defendant.

Criminal Court of the City of New York,

Bronx County.

Sept. 3, 1996.

Legal Aid Society, Bronx (Robert M. Baum, of counsel), for defendant.

Robert T. Johnson, District Attorney of Bronx County (Valerie Corder, of counsel), for plaintiff.

IRVING ROSEN, Judge.

The defendant, James Minton, is charged with violating Section 353 of the Agriculture and Markets Law which prohibits "overdriving, ... torturing ... and injuring ... animals; ... failure to provide proper sustenance." The factual allegations contained in the accusatory instrument are as follows:

"... that on or about and between July 19, 1996 [sic] at approximately 9:00 A.M. and November 15, 1995 at approximately 5:00 P.M. at 2806 Pond Place, County of the Bronx, State of New York,

"Deponent states that, at the above time and place, she observed defendant tie up a dog outside on the terrace with a leash so short that the dog could not sit or lay down.

"Deponent observed that at least once a week the defendant beat the dog with his fists, heavy objects, and kicked the dog with his feet.

"Deponent further states that the defendant did not provide the dog with water and during August of 1995 kept the dog in the hot sun without protection.

"Deponent states she observed the dog remain on the terrace on the short leash during the severe Noreaster of November 1995, exposed to the freezing rain and winds with no protection.

"Deponent states that on November 15, 1995 she observed the defendant beating the dog repeatedly with a heavy object and heard the blows striking the dog and the dog screaming in pain."

The defendant now moves to dismiss the accusatory instrument as duplicitous. The People oppose this motion contending that the continuing offense doctrine is applicable to section 353 of the A.M.L. and consequently the multiple acts committed by the defendant constitute a single crime.

A count is duplicitous when more than one offense is contained in a single count. People v. First Meridian Corp., 86 N.Y.2d 608, 635 N.Y.S.2d 144, 658 N.E.2d 1017; People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577; People v. Kindlon, 217 A.D.2d 793, 629 N.Y.S.2d 827; People v. Senisi, 196 A.D.2d 376, 610 N.Y.S.2d 542. C.P.L. § 200.30 prohibits duplicitous counts in an indictment. This section is also applicable to misdemeanors. People v. Mitchell S., 151 Misc.2d 208, 573 N.Y.S.2d 124; People v. Rios, 142 Misc.2d 357, 537 N.Y.S.2d 775; People v. Todd, 119 Misc.2d 488, 463 N.Y.S.2d 729.

Ascertaining whether a crime is continuous or not is often difficult to determine because there appears to be three separate categories of crimes. These categories are delineated in People v. Brown, 159 Misc.2d 11, 16, 603 N.Y.S.2d 256, where the Court stated as follows:

"The first category is those crimes which are, as a matter of law, always continuous. These crimes have an element which by their very nature require a course of conduct or several acts or omissions over a period of time ..."

"The second category is crimes which are, as a matter of law, noncontinuous. These crimes have an element which by their nature are complete upon a single act or omission ..."

"The third category is a hybrid. The crimes are sometimes continuous and sometimes not continuous. These crimes have an element that sometimes can be committed by a single act or omission or by several different acts or omissions over a period of time."

The question of whether multiple acts may properly be charged as a continuing crime is essentially one of statutory construction which requires reference to the language of the penal statute to determine whether the statutory definition of the crime necessarily contemplates a single act. See People v. Keindl, supra, at 421-422, 509 N.Y.S.2d 790, 502 N.E.2d 577; People v. Shack, 86 N.Y.2d 529, 540-541, 634 N.Y.S.2d 660, 658 N.E.2d 706; Matter of Johnson v. Morgenthau, 69 N.Y.2d 148, 512 N.Y.S.2d 797, 505 N.E.2d 240. Insight is achieved by analyzing whether the underlying legislative intent was to prohibit a course of conduct or only specific described acts. See People v. Okafore, 72 N.Y.2d 81, 86-87, 531 N.Y.S.2d 762, 527 N.E.2d 245; People v. Shack, supra, at 541, 634 N.Y.S.2d 660, 658 N.E.2d 706; People v. Sher, 149 Misc.2d 194, 195, 561 N.Y.S.2d 872.

The genesis of New York State's Cruelty to Animals Law dates back to 1828 when New York State became the first State in the nation to enact anti-cruelty animal legislation. ¹ The legislation enacted in 1828 provided that "[e]very person who shall maliciously kill, maim, or wound any horse, ox or other cattle or any sheep, belonging to another, or shall maliciously and cruelly beat or torture any such animal, whether belonging to himself or another, shall upon conviction, be adjudged guilty of a misdemeanor." ² This legislation was limited in scope, covering only owned horses, cattle and sheep.

In 1866 this section was amended and provided that "[e]very person who shall by his act or neglect, maliciously kill, maim, wound, injure, torture or cruelly beat any horse, mule, ox, cattle, sheep or other animal belonging to himself or another, shall, upon conviction, be adjudged guilty of a misdemeanor." ³ This amendment expanded animal cruelty to include neglect. A second section was added to the act designed to protect disabled horses and mules from abandonment.

In 1867 the New York State Legislature enacted a much more comprehensive statute consisting of ten sections designed to more effectively prevent cruelty to animals. Section 1 thereof provided: "[i]f any person shall over-drive, overload, torture, torment, deprive of necessary sustenance, or unnecessarily or cruelly beat, or needlessly mutilate or kill, or cause or procure to be overdriven, overloaded, tortured, tormented or deprived of necessary sustenance, or to be unnecessarily or cruelly beaten, or needlessly mutilated or killed, as aforesaid, any living creature, every such offender shall, for every such offense, be guilty of a misdemeanor." ⁴ (Italics added) The Legislature for the first time detailed specific acts as cruelties and made them applicable to "any living creature." Other sections of the statute, inter alia, prohibited animal fights and baiting (section 2); mandated that impounded creatures be given sufficient quantities of food and water during their confinement (sections 3 and 4); prohibited transporting creatures in a cruel or inhuman manner (section 5).

With the enactment of the Penal Code in 1881 the animal cruelty statutes were again amended. Section 655 of the Penal Code provided that: "[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, tortures, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, 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 1909 the Penal Code was revised by the enactment of the Penal Law. Section 185 of the new Penal Law, entitled "Overdriving, torturing and injuring animals; failure to provide proper sustenance" contained two paragraphs. The first paragraph carried over verbatim the language of Section 655 of the old Penal Code. A second paragraph, not relevant to the issue herein, pertained to the properly conducted scientific experiments or investigations.

In 1965 the Penal Law was reorganized. Many provisions were transferred to other State laws where they fit more appropriately. ⁵ Section 185 of the Penal Law was transferred to Section 353 of the Agriculture and Markets Law. The relevant first paragraph, including the section title, was carried over verbatim, except the Legislature specified at the very end of said first paragraph that the misdemeanor is "punishable by imprisonment for not more than one year, or by a fine of not...