Home Legal Resources Case Law Summaries Animal Cruelty

Animal Cruelty

• The People of the State of New York v. Degiorgio, 36 A.D.3d 1007, 827 N.Y.S.2d 342, 2007 N.Y. Slip Op. 00168 (3 Dept., 2007)

Defendant allegedly attacked and killed his girlfriend’s dog, and after she reported him to the police, he left a series of threats on her phone which resulted in her seeking an order of protection.  Defendant was also ordered to surrender all firearms, but told police he would not do so.  A search warrant was obtained and several guns were removed from Defendant’s home.  Defendant after a nonjury trial was found guilty for the crimes of intimidating a victim or witness in the third degree, aggravated cruelty to animals, aggravated harassment in the second degree and criminal contempt in the second degree.  The County Court sentenced him to concurrent prison terms of 1 1/3 years to 4 years for aggravated harassment, one year for criminal contempt and consecutive to those terms two years for aggravated cruelty to animals.  Defendant appealed.

Defendant argued that there was no intimidation since he did not specifically request that the victim refrain from testifying or reporting a crime and the evidence was not sufficient to establish the crime of intimidating a victim or witness.  Considering that the Defendant was recently charged and the court proceedings were upcoming; the threats could be interpreted as an effort to intimidate the victim into not testifying or to curtail her cooperation with the police and prosecution.  The evidence was sufficient to conclude that Defendant committed the crime.  Next, the Defendant argued that the cruelty to animals conviction failed under legal sufficiency and weight of the evidence since his acts lacked the degree of depravity described in the legislative history and that required by the statute.  The Court found that kicking a 12 year old dachshund with his boots, picking it up, shaking it, hitting its head against a door and throwing it down the basement stores was sufficient, though possible not a felony.  The Appellate Division affirmed the lower court’s decision.

• Garcia v. Rivera, Slip Copy, 2007 WL 2325928 (S.D.N.Y. 2007)

The Petitioner was convicted by the Supreme Court, New York County of various assault, weapon, endangering the welfare of a child and aggravated cruelty to animals and sentenced to concurrent and consecutive sentences aggregating to 7 ½ - 15 years.  In addition to other grounds the Petitioner alleged that the court abused its discretion as a matter of law for the felony of aggravated cruelty violating his due process.

The animal cruelty arose from the Petitioner throwing a fish tank into the television and threatening his girlfriend.  The fight later worsened with assaults on the girlfriend and child.  The girlfriend’s dog tried to grab the Petitioner upon which the Petitioner slammed the dog into the floor.  The lower court held that the definition of animal included every living creature such as goldfish and these were household pets intended to protected by Agriculture and Markets Law §353-a.  Upon appeal the First Department rejected Petitioner’s arguments that a goldfish was not domesticated and there was no reciprocity or mutuality of feeling, as there was no requirement for reciprocity of affection in the statute under the definition of companion animal.  Since the goldfish is a common household pet, it met the definition and upheld the decision of the lower court.

• Garcia v. Rivera, 2008 WL 400893 (S.D.N.Y. 2008)

In 2004 the petitioner was convicted and sentenced for various criminal offenses including aggravated cruelty to animals.  The petitioner asserted five claims for his relief one of which was that the conviction of aggravated cruelty to animals violates due process.

The United State Magistrate issued a report and recommendation recommending denial of the petition and no objections were filed.  Therefore the Court found that there was no clear error on the face of the record, that the conviction and sentence were not shown by the Petitioner to be contrary to, or an unreasonable application of, clearly established federal law, therefore the petition for writ of habeas corpus was denied.

NEW YORK STATE BAR ASSOCIATION, ONE ELK STREET, ALBANY, NY 12207   PH: (518) 463-3200   FX: (518) 487-5517

Copyright © New York State Bar Association, 2008
Privacy Statement | Terms of Use