Opinion
8898 Ind. 1924/13
04-04-2019
The PEOPLE of the State of New York, Respondent, v. Dwayne GENTLES, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Alexandra L. Mitter of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Alexandra L. Mitter of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.
Sweeny, J.P., Manzanet–Daniels, Kern, Oing, Singh, JJ.
Judgment, Supreme Court, Bronx County (Miriam Best, J.), rendered August 13, 2015, convicting defendant, after a jury trial, of overdriving, torturing, and injuring animals ( Agriculture & Markets Law § 353 ), and sentencing him to a term of one year, unanimously reversed, as a matter of discretion in the interest of justice, and the matter remanded for a new trial.
We find that there was an unpreserved error warranting reversal in the interest of justice. As the People essentially concede, the court's jury charge constructively amended the indictment (see People v. Kaminski, 58 N.Y.2d 886, 460 N.Y.S.2d 495, 447 N.E.2d 43 [1983] ). The indictment was limited to a theory that defendant personally mistreated his dog. However, the court read Agriculture & Markets Law § 353 to the jury almost in its entirety, including a provision that would allow the jury to convict defendant if he merely permitted another person to mistreat his dog. Unlike ordinary accessorial liability under Penal Law § 20.00, this theory of "permitting" is an entirely different way of committing the crime from personally mistreating the animal. This error was not harmless, because there was evidence from which a reasonable jury could have inferred that defendant took the blame for his dog's condition to cover for his uncle, who lived with defendant and made inconsistent statements about whether he witnessed defendant beating the dog.
However, the fact that defendant has completed his sentence does not warrant dismissal of the indictment. That approach is suitable only in cases of "relatively minor crimes" ( People v. Burwell, 53 N.Y.2d 849, 851, 440 N.Y.S.2d 177, 422 N.E.2d 822 [1981] ), and this case involves "serious" allegations ( People v. Extale, 18 N.Y.3d 690, 696, 943 N.Y.S.2d 801, 967 N.E.2d 179 [2012] ) of abusing an animal. Accordingly, we remand for a new trial.
Since we are ordering a new trial, we need not reach defendant's remaining arguments.