Whether the People can prove that defendant unjustifiably committed these acts is a matter best left to the trier of facts based upon the moral standards of the community. ( People v Voelker, 172 Misc 2d 564 [Crim Ct, Kings County 1997]; People v Bunt, 118 Misc 2d 904, 910 [Rhinebeck Just Ct 1983]; cf. People v O'Rourke, supra [evidence supports the conclusion that the horse was not given proper medical attention to alleviate its pain].) Thus, we find that the defendant is "amply informed of the prohibited activity and the statute contains provisions to allow the question of justification to be raised and considered."

Even though the court has not been asked to, and will not, address the issue of the unconstitutional vagueness of section 353 on its face, it will point out that the language of the statute is not an example of precision and clarity. ( See, People v. Bunt, 118 Misc 2d 904 [Just Ct, Dutchess County 1983] [noting that section 353 is constitutional but not well drafted].) The language in the current version of the statute was drafted in 1881 ( see, section 655 of the Penal Code of 1881), and it has been incorporated, without major changes, into every anticruelty statute enacted since then.

Even though the court has not been asked to, and will not, address the issue of the unconstitutional vagueness of § 353 on its face, it will point out that the language of the statute is not an example of precision and clarity. See, People v. Bunt, 118 Misc.2d 904 (Justice Ct., Rhinebeck, Dutchess Co. 1983) (noting that § 353 is constitutional but not well drafted). The language in the current version of the statute was drafted in 1881 ( See, § 655 of the Penal Code of 1881), and it has been incorporated, without major changes, into every anti-cruelty statute enacted since then.

In the second New York case, People v Bunt (118 Misc 2d 904 [Just Ct, Dutchess County 1983]), the defendant was charged under Agriculture and Markets Law § 353 with "brutally" beating a dog with a baseball bat. He challenged the constitutionality of the statute arguing, inter alia, that the term "unjustifiably," as used in the statute, was vague.

The court in People v. Bunt held that "[t]he question of fact as to whether the act of cruelty and the infliction of pain was justified or whether the injury, maiming, etc., was unjustified is a question to be determined by the trier of facts and based upon the moral standards of the community." People v. Bunt, 118 Misc 2d 904, 909 (Just Ct Town of Rhinebeck, Dutchess Cnty 1983); see also People v. Voelker, 172 Misc 2d 564, 569 (NYC Crim Ct, Kings Cnty 1997) ("Whether or not the People can prove that defendant unjustifiably' committed these acts is a matter best left to the trier of facts.")

However, the defendant's infliction of serious physical injury upon the dog would be justified to avoid less than serious injury to the defendant, since the interest of the defendant to protect his person cannot be equated with the interest of protecting an animal from injury. The question of whether the injury inflicted upon the dog could be justified to protect the person of the defendant or even his property is generally a question of fact to be determined by the trier of facts based upon the moral standards of the community (seePeople v. Bunt, 118 Misc.2d 904, 462 N.Y.S.2d 142 ; see alsoPeople v. Voelker, 172 Misc.2d 564, 658 N.Y.S.2d 180 ), and not as a matter of law based upon falsely equating the interest of the animal with the interest of a person. My colleagues in the majority contend that the defendant faced, "at most, a bite by this small animal through denim pants," therefore defending himself was not necessary.

Thus, Goldman offers no support for the interpretation urged by plaintiff. This case is more akin to People v Bunt ( 118 Misc.2d 904 [Justice Ct, Town of Rhinebeck, Dutchess County]), in which the statutory language in issue, part of Agriculture and Markets Law § 353, provides, in pertinent part, that a person who, inter alia, "unjustifiably injures, maims, mutilates or kills any animal * * * is guilty of a misdemeanor." The court held that "the term 'unjustifiably' * * * applies to the words 'injures', 'maims', 'mutilates' and 'kills', since by the varying nature of these prohibited acts it would be illogical to have them considered to absolutes and without the right of the defense of justification".

In People v. Curcio, 22 Misc.3d 907 [Crim Ct, NY County 2008], the accusatory instrument included an admission by the defendant that he knew his dog had a mass but "did not and would not take the dog to the vet for medical attention," along with sworn factual allegations from a veterinarian that this failure then caused a life a life-saving surgery, six days of intensive care, and for the dog to "suffer needlessly." In People v. Bunt, 118 Misc.2d 904 [Rhinebeck Just Ct 1983], the defendant was alleged to have hit his dog with a baseball bat repeatedly and continued to do so even after the dog was lying on the ground no longer moving. Even worse, People v. Boelker, 172 Misc.2d 564 [Crim Ct, Kings County 1997] was based on an accusatory instrument that included allegations that the defendant "cut off the heads of three live, conscious iguanas without justification" (id. at 565).

The court in People v. Bunt held that “[t]he question of fact as to whether the act of cruelty and the infliction of pain was justified or whether the injury, maiming, etc., was unjustified is a question to be determined by the trier of facts and based upon the moral standards of the community.” People v. Bunt, 118 Misc.2d 904, 909 (Just Ct Town of Rhinebeck, Dutchess Cnty 1983); see also People v. Voelker, 172 Misc.2d 564, 569 (N.Y.C Crim Ct, Kings Cnty 1997) (“Whether or not the People can prove that defendant unjustifiably' committed these acts is a matter best left to the trier of facts.”) Several courts, interpreting A.M.L. 353 to prohibit omissions that cause unjustified suffering, have denied motions to dismiss where there were allegations of medical neglect in the accusatory instrument.

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