Opinion
570048/04.
Decided February 21, 2006.
Defendant appeals from a judgment of the Criminal Court, New York County (Bruce Allen, J.), rendered December 1, 2003, after a nonjury trial, convicting him of animal cruelty in violation of Agriculture and Markets Law § 353, and imposing sentence.
Judgment of conviction (Bruce Allen, J.), rendered December 1, 2003, affirmed.
PRESENT: Suarez, P.J., McCooe, Schoenfeld, JJ.
Defendant was convicted, after a nonjury trial, of animal cruelty (Agriculture and Markets Law § 353), a misdemeanor, upon evidence that he tightly wrapped a rubber band around the base of a Rottweiler's tail for three days in a failed attempt to "dock" or amputate the tail, a procedure shown to have caused an open wound two inches in width and to have ultimately resulted in the surgical amputation of the animal's tail. On appeal defendant candidly acknowledges that the tail docking procedure that he employed "undeniabl[y] . . . caused pain and suffering that was excessive in proportion to the value of having the tail docked," and raises no argument directed to the constitutionality of the statute or its applicability to the facts of this case. Rather, defendant seeks reversal upon a single, narrow ground: that the People failed to establish that his conduct was actuated by the "mental culpability" claimed by the defense to be required by the statute. However, the penal statute as written specifies a strict liability offense not requiring any culpable mental state and, paradoxically, defendant appears to acknowledge as much by conceding that the terms of the statute "provide for no level of culpability". Nor may we rewrite the plain words of the statute by adding, through judicial gloss, a culpable mental state or new element not provided by the Legislature.
The statute provides that: "A person who * * * tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another * * * or causes, procures or permits any animal to be * * * unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, or who wilfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a misdemeanor * * *." (Emphasis added.)
All that the People were required to establish in this misdemeanor prosecution for animal cruelty was that defendant "unjustifiably" injured or mutilated the dog, a showing clearly and persuasively made by the People's trial proof ( cf. Agricultural and Markets Law § 353-a [Aggravated cruelty to animals, a felony, committed when one, "with no justifiable purpose, intentionally causes serious physical injury to a companion animal" (emphasis added)]). Defendant having raised no other basis for reversal on appeal, we sustain the conviction on the misdemeanor-level animal cruelty charge.
This constitutes the decision and order of the court.