People v. Notice (Anthony)

People v Notice (2022 NY Slip Op 51263(U)) [*1] People v Notice (Anthony) 2022 NY Slip Op 51263(U) [77 Misc 3d 134(A)] Decided on December 2, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ 2018-1754 K CR The People of the State of New York, Respondent, against Anthony Notice, Appellant. Appellate Advocates (Chelsea Lopez of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Ruth E. Ross and Daniel Berman of counsel), for respondent. Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Elizabeth N. Warin, J.), rendered August 2, 2018. The judgment, insofar as appealed from as limited by the brief, convicted defendant, upon a jury verdict, of one count of violating Agriculture and Markets Law § 353, and imposed sentence. ORDERED that the judgment of conviction, insofar as appealed from, is reversed, on the law, and, as a matter of discretion in the interest of justice, so much of the accusatory instrument as charged defendant with the count of violating Agriculture and Markets Law § 353 of which he was convicted is dismissed. The information charging defendant with, among other things, violating Agriculture and Markets Law § 353 provides, that, on or about January 2 and 3, 2018, defendant committed the following: "OVERDRIVING, TORTURING, AND INJURING ANIMALS OR FAILURE TO PROVIDE PROPER SUSTENANCE FOR ANIMALS (2 COUNTS)." The factual allegations in the information provide that two dogs (Princess and Ciroc) were being kept outside in a vacant lot, where there was no food in the dogs' bowl, the water in their bowl was frozen, the dogs were shivering and the temperature was between 18 and 21 degrees. Additionally, it was alleged that [*2]there was no proper shelter for the dogs and that Princess was underweight. At a Molineux hearing (People v Molineux, 168 NY 264 [1901]), the prosecutor sought permission to use on direct testimony medical records showing, among other things, Princess's condition and treatment in 2017, prior to the instant offense. Initially, the Criminal Court denied the People's Molineux request but warned that if defense counsel opened the door to past conditions of the dog, the People would be permitted to use such evidence on their direct case. In the People's opening statement at a jury trial, the prosecutor stated that the "case is about the defendant's refusal to provide his two dogs, Princess and Ciroc, with the most basic needs, such as access to food, water and adequate shelter to keep them safe and warm through the cold winter days." The testimony by the People's witnesses established that the two dogs were being kept outside in a vacant lot, where there was no food in their bowl, another bowl contained frozen water, the dogs were shivering and the temperature was between 18 and 21 degrees. In addition, Princess was underweight. The shelter for the dogs consisted of a wire-mesh uninsulated enclosure covered with a plastic tarp. After defense counsel opened the door to past conditions of the dog, the People presented evidence of Princess's prior medical conditions. A forensic veterinarian at the ASPCA testified that, in 2017, Princess had an ear infection and defendant was told to bring Princess back two weeks after the treatment for the ear infection, but he never returned with her. Regarding the latest incident, Princess presented with a double ear infection and a torn ACL, which condition had existed for at least several weeks, or possibly months, and was causing her to have pain in her hind legs. Subsequent to the arrest, she had surgery to repair the ACL in both her knees. During summation, the prosecutor commented, among other things, that an animal owner is required to provide sustenance and that defendant did not provide veterinary care for her ear infections and knee pain. The court denied defense counsel's request for a limited instruction requesting that the jury be charged that ear infections and knee issues prior to this incident were not the subject of the jury charge. The court's jury instruction, with respect to the count charging defendant with violating Agriculture and Markets Law § 353, provided that a person is guilty of this crime when he or she 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 deprived of necessary food and drink or willfully sets on foot, instigates, engages in or in any way furthers any act of cruelty to an animal or any act tending to produce such cruelty. The court further defined the term "sustenance" to "include[] veterinary care or shelter adequate to maintain the animal's health and comfort." The jury found defendant guilty of, among other things, one count of Agriculture and Markets Law § 353 with respect to Princess. The jury acquitted defendant of the second count charging him with the same offense with respect to Ciroc. The court sentenced defendant to a [*3]conditional discharge, among other things. On appeal, defendant contends that defendant was denied a fair trial because the People changed the theory of the case and that they relied on Molineux evidence to support the new theory. Additionally, defendant contends that the charge to the jury concerning the element of sustenance and the prosecutor's summation remarks that defendant denied Princess veterinary care prejudiced the jury. It is well settled that the People are bound by their theory of the offenses as set forth in an indictment, in recognition of an accused's right to sufficient notice of the specifics of the criminal conduct alleged in order to afford defendant the opportunity to prepare a defense and avoid reprosecution for the same crime (see People v Grega, 72 NY2d 489, 495-497 [1988]; People v Spann, 56 NY2d 469, 472 [1982]; People v Plaisted, 1 AD3d 805, 806 [2003]). But, " '[w]here there is a variance between the proof and the indictment, and where the proof is directed exclusively to a new theory rather than the theory charged in the indictment, the proof is deemed insufficient to support the conviction' " (People v Hong Wu, 81 AD3d 849, 850 [2011], quoting People v Smith, 161 AD2d 1160, 1161 [1990]). This principle also applies to cases where a defendant is charged with an offense in an information (see People v Miles, 64 NY2d 731, 732-733 [1984]; see generally Spann, 56 NY2d at 473). Here, defendant was charged in the information with violating Agriculture and Markets Law § 353 in that he "depriv[ed] an[] animal of necessary sustenance, food or drink, or neglect[ed] or refus[ed] to furnish it such sustenance or drink." The information made no reference to defendant's failure to provide veterinary care for Princess's ear infections and knee pain. We find that a new theory was presented at trial based on the evidence and the prosecutor's summation remarks indicating, among other things, that defendant failed to provide veterinary care for Princess's infected ears and knee pain. The variance between the charge as set forth in the accusatory instrument and the proof at trial deprived defendant of fair notice of the charge upon which he was to be tried (see People v Joon Ho Chin, 267 AD2d 404 [1999]; People v Gachelin, 237 AD2d 300, 301 [1997]; People v Martin, 23 Misc 3d 67, 69-70 [App Term, 2d Dept, 9th & 10th Jud Dists 2009]) and prejudiced defendant, since the jury's guilty verdict on the count relating to Princess under Agriculture and Markets Law § 353 could have been based on this new theory by finding that defendant failed to provide Princess with veterinary care (see People v Gentles, 171 AD3d 471, 472 [2019]). Consequently, the judgment, insofar as appealed from, convicting defendant of violating Agriculture and Markets Law § 353, must be reversed. Furthermore, as a matter of discretion in the interest of justice, we dismiss the accusatory instrument, since defendant has completed his sentence and no penological purpose would be served by reinstating the proceedings (see People v Vicuna, 53 Misc 3d 153[A], 2016 NY Slip Op 51734[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; People v Moore, 48 Misc 3d 143[A], 2015 NY Slip Op 51337[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In view of the foregoing we do not pass upon defendant's remaining contentions. Accordingly, the judgment of conviction, insofar as appealed from, is reversed and, as a matter of discretion in the interest of justice, so much of the accusatory instrument as charged defendant with the count of violating Agriculture and Markets Law § 353 of which he was convicted is dismissed. WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 2, 2022