People v. Roth (Lonnie)

People v Roth (2021 NY Slip Op 51264(U)) [*1] People v Roth (Lonnie) 2021 NY Slip Op 51264(U) [73 Misc 3d 147(A)] Decided on December 23, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on December 23, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : TERRY JANE RUDERMAN, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ 2021-3 S CR The People of the State of New York, Respondent, against Lonnie D. Roth, Appellant. Arnold A. Arpino, for appellant. Suffolk County District Attorney (Karla Lato of counsel), for respondent. Appeal from a judgment of the District Court of Suffolk County, First District (Paul E. Henning, J.), rendered October 29, 2020. The judgment convicted defendant, upon his plea of guilty, of violating Agriculture and Markets Law § 353. ORDERED that the judgment of conviction is affirmed. Defendant was charged in an information with violating Agriculture and Markets Law § 353, in that, on July 4, 2020, defendant "neglected [his] three tan Yorkie dogs by leaving [them] in his home for several hours, despite that said home had been previously declared unfit for habitation on June 23, 2020, and remained that way on July 4, 2020. The home was filthy and disgusting and had feces, urine and garbage strewn all over the house, and had the strong smell of feces and urine." In a supporting deposition by a fire marshal, it is alleged that defendant's home had been declared unfit for habitation on June 23, 2020 and that it was still unfit for habitation on July 4, 2020. Defendant pleaded guilty to the charge. On appeal, defendant contends that the information is jurisdictionally defective as it is not clear what portion of Agriculture and Markets Law § 353 is being charged against him and as the information fails to contain allegations showing that the dogs sustained injuries as a result of defendant's actions. The facial insufficiency of an accusatory instrument constitutes a jurisdictional defect which is not forfeited by a defendant's guilty plea (see People v Dreyden, 15 NY3d 100, 103 [2010]; People v Konieczny, 2 NY3d 569, 573 [2004]). Here, since defendant did not expressly [*2]waive the right to be prosecuted by information, the accusatory instrument must be evaluated under the standards that govern a misdemeanor information (see People v Dumay, 23 NY3d 518, 524 [2014]; see also CPL 100.15, 100.40 [1]; People v Dumas, 68 NY2d 729, 731 [1986]). While a charged offense and the factual basis therefor must be sufficiently alleged (see CPL 100.15, 100.40 [1]), "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]; see Konieczny, 2 NY3d at 575). Defendant raises no hearsay claim on appeal, and, even if he had, the claim would have been waived by his failure to raise it in the District Court (see Casey, 95 NY2d 354). Pursuant to Agriculture and Markets Law § 353, "[a] person who overdrives, overloads, tortures . . . or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, is guilty of a class A misdemeanor." "The term 'sustenance,' as set forth in the statute, has been held to be distinguishable from the term 'food or drink' and to include veterinary care and shelter adequate to maintain the animal's health and comfort" (People v Richardson, 15 Misc 3d 138[A], 2007 NY Slip Op 50934[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]; see People v Blackman, 66 Misc 3d 145[A], 2020 NY Slip Op 50202[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; People v Mahoney, 9 Misc 3d 101 [App Term, 2d Dept, 9th & 10th Jud Dists 2005]). The offense does not require that the animal have sustained an injury as a result of the defendant's conduct (see Agriculture and Markets Law § 350 [2]; People v Robinson, 56 Misc 3d 77, 79 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). A violation of the statute is established upon proof that a defendant was entrusted with the care of an animal and that the animal was not being provided with necessary sustenance (see People v Neira, 55 Misc 3d 149[A], 2017 NY Slip Op 50729[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Richardson, 2007 NY Slip Op 50934[U], *2). Here, giving the allegations in the accusatory instrument and the supporting deposition—to the effect that defendant left his three dogs in his home where there was urine, feces and garbage strewn all over and which had been declared unfit for habitation—a fair and not overly restrictive or technical reading (see Casey, 95 NY2d at 360), we find that they established, if true, every element of the offense charged, to wit, that defendant's actions failed to furnish sustenance to his dogs in violation of Agriculture and Markets Law § 353 (see CPL 100.15 [3]; 100.40 [1] [c]; Dumas, 68 NY2d at 731). Consequently, the information supplied defendant "with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy" (Dreyden, 15 NY3d at 103; see People v Kalin, 12 NY3d 225, 231-232 [2009]; Casey, 95 NY2d at 366). Accordingly, the judgment of conviction is affirmed. RUDERMAN, P.J., EMERSON and DRISCOLL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 23, 2021