Opinion
XXXXX.
Decided May 28, 2010.
Thomas J Lavallee, Esq., Attorney for Petitioner, Hauppauge, NY.
Marcia Kucera, Esq., Attorney for Respondent, ADA, Appeals Bureau, Riverhead, NY.
Petitioner, William Thomas, commenced this writ of habeas corpus proceeding, seeking immediate release from custody and dismissal of his District Court sentence following a jury trial, on the ground that such court lacked subject matter jurisdiction over his case, since his actions do not constitute a crime under New York law. The Petitioner was charged with and convicted on February 9, 2010, of a violation of Agriculture and Markets Law 353. The Accusatory Instrument, which Petitioner's counsel argues gives rise to this Petition, states, in pertinent part, that" (t)he defendant, at 613 Baylor Place, East Northport, . . ., on or about December 28, 2008, . . . did . . . unjustifiably . . . shoot and kill a squirrel"
Petitioner's counsel argues as follows: 1) due to the significance of the issues involved and the impracticality of awaiting the outcome of an appeal, a habeas corpus proceeding is the proper avenue to address this legal issue; 2) the Environmental Conservation Law makes lawful both hunting squirrel during a particular season (11-0903, 11-0103) and killing squirrels within one's property when they are injuring such property even without a hunting permit (11-0523). Based on the fact that the squirrel was killed by the Petitioner on his own property during hunting season, his counsel asserts that he was found criminally liable for conduct that does not constitute a crime.
Respondent argues both that a writ of habeas corpus is not the proper vehicle to raise this issue and, that, in any case, the Petitioner was properly convicted of a misdemeanor by the triers of fact. Respondent asserts that: 1) having had the opportunity to raise the issue before the trial court, by motion and on direct appeal to the Appellate Term, a writ of habeas corpus is improper; 2) the accusatory instrument reflects that Petitioner's intent was to kill rather than to hunt or preserve his property as he stated with regard to the issue and the complaining witness "(w)hen Queen Mary stops harassing me I will leave them alone" (last line of accusatory instrument); 3) the issues regarding legal hunting or preservation of one's real property are "justification" defenses, which are to be determined by the trier of fact, not via habeas corpus (i.e., the jury in this case that found Petitioner guilty).
'New York Agriculture and Markets Law 353 states, in pertinent part that' "A person who . . . kills any animal, whether wild or tame,. . . . or causes any animal to be . . . killed . . . is guilty of a Class A misdemeanor".
ECL 11-0903 (2) provides "The department may fix annually by regulation the open seasons and bag limits for wild game of the following species . . . . . . black, grey and fox squirrels . . ."
In Suffolk County, a properly licenced individual may kill and bag up to six squirrels per day during hunting season, which occurs between November and February ( 6 NYCRR 2.20 (a) (5); 6 NYCRR 2.20 (d)(1).
ECL 11-0523 subdivision 7 provides "Whenever black, grey and fox squirrels,. . . . are injuring property on . . . dwellings, they may be taken at any time in any manner, by the owners or occupants thereof. . . ."
The vehicle of a writ of habeas corpus to attack a criminal conviction is generally held unavailable where the petitioner's legal arguments either were or could have been raised in the context of a collateral motion under CPL 440 or through a direct appeal. People ex rel Vogelfang v Perez, 66 AD3d 1052, 886 NYS2d 817 (2d Dep't 2009); People ex rel Brown v Artus, 64 AD3d 1064, 883 NYS2d 634 (3d Dep't 2009); People ex rel Barnes v Fischer, 303 AD2d 526, 756 NYS2d 449 (2d Dep't 2003). The stated basis for these rulings appears to be that absent reasons of practicality and necessity, the use of the writ to determine such issues would create a departure from the traditional, orderly process set forth in the Criminal Produce Law. People ex rel Barnes v Fischer, supra .
As set forth in the Petition, there have been instances where the courts have entertained the writ of habeas corpus despite the ability and/or failure to raise the issue via CPL 440 or on direct appeal, where the appellate court did so in light of the "(i)mportance of the issues raised". See, People ex rel Culhane v Sullivan, 139 AD2d 315, 531 NYS2d 287 (2d Dep't 1988). That case involved the question of whether attempted escape could be used a s a predicate act for a felony-murder conviction after the date the legislature reclassified attempted escape as a Class A misdemeanor.
This Court does not believe that the issues raised in this writ rise to the level of significance set forth in Culhane v Sullivan, supra . However, even if they did, this Court would not find that the Petitioner was convicted of an act that does not constitute a crime. As stated by the Respondent's counsel, the issue herein is not whether the Petitioner's act constituted a crime; but, rather, whether his act of killing the squirrel was justified. The accusatory instrument does set forth, inter alia, that Petitioners' actions were not justified. In People v Voelker, 172 Misc 2d 564, 658 NYS2d 180 (Crim Ct NY Co 1997), the Court considered whether the issue of justification could provide a basis for dismissal of the identical charge. That matter involved an accusatory instrument, which, like the case at bar, accused the Defendant of killing animals (iguanas) without justification. The court found that whether an act of cruelty was justified or not is a question left to the trier of fact based on the moral standards of the community. Id.; People v Bunt, 118 Misc 2d 904, 462 NYS2d 142 (1983). According to respondent, what was brought out at trial was that Petitioner lured the animal to his property via bait and killed it without justification There was assertedly no claim that he was hunting or protecting his property.
The Court does agree with Petitioner's counsel that the legislature did not intend game hunting or other protected activity be considered criminal. Despite the fact that the exculpatory language contained in the felony act described by Agriculture and Markets law 353-a does not appear in the misdemeanor charge under Agriculture and Markets law 353, the crime contains the words "justification" within its definition. Therefore, the statute provides protection for those who kill game in appropriate fashion during hunting season or those who do so, under specified circumstances, to protect their property under ECL 11-0523.
Thus, this Court does not believe that the District Court lacked subject matter jurisdiction over the case brought against the Petitioner. Rather, the issue was whether his act was justified, for any number of reasons, including the permissive acts found under the Environmental Conservation law. Those were questions for the trier of fact, the jury in Petitioner's case, not this Court; and certainly not in a habeas corpus proceeding.
Accordingly, the Petition is denied and the proceeding is dismissed. This constitutes the Decision and Judgment of the Court.