Opinion
DOCKET NO. A-1142-13T1
03-09-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MERCEDES LOPEZ, Defendant-Appellant.
Albert J. Rescinio, attorney for appellant (Laura Orriols, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 13-029. Albert J. Rescinio, attorney for appellant (Laura Orriols, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Mercedes Lopez appeals the Law Division judgment finding her guilty, after a trial de novo on the record, Rule 3:23-8(a)(2), of depriving animals of necessary sustenance under earlier versions of N.J.S.A. 4:22-17(a)(1) and N.J.S.A. 4:22-26(a)(1). Because we find the Law Division judge erroneously expanded the meaning of "necessary sustenance" to include veterinary care, we reverse.
The judge acquitted defendant of the charge under N.J.S.A. 4:22-26(1), that she had "willfully sold [a] puppy Nahla with a contagious or infectious disease."
Since the issue on appeal is purely a question of law, we summarize only briefly the facts the judge relied upon in rendering his decision. Defendant, a volunteer at a local animal shelter, brought several puppies to an event at PetSmart and placed them with adoptive families. The animals suffered from a variety of illnesses, ranging from ringworm to parvovirus, resulting in the complaints at issue.
Defendant initially entered guilty pleas to both depriving an animal of sustenance, N.J.S.A. 4:22-26(a)(1), and selling an animal with contagious disease, N.J.S.A. 4:22-26(1). Thereafter, she was permitted to withdraw her guilty pleas, and a trial followed. After several days of trial over several months, she was found guilty on May 20, 2013, of the same offenses and fined. Defendant then appealed to the Law Division.
The Law Division judge found that, as to one puppy, the proofs established that "defendant [was] guilty of depriving an animal of necessary sustenance under 4:22-26(a)(1)." He reached that conclusion based on defendant's failure to follow through with veterinary advice when the puppy was returned for veterinary treatment, and to purchase the prescribed medication. Defendant allegedly gave the new owner medication not provided by the veterinary service she had consulted.
The Law Division judge interpreted the phrase "necessary sustenance," which is found in both N.J.S.A. 4:22-26(a)(1), the civil statute, and N.J.S.A. 4:22-17(a)(1), the disorderly persons offense, to include veterinary care. We recite the relevant portions of the statutes then in effect:
A person who shall . . . Overdrive, overload, drive when overloaded, overwork, deprive of necessary sustenance, abuse, or needlessly kill a living animal or creature;
. . . . Shall be guilty of a disorderly persons offense . . . [and] shall be fined not less than $250 nor more than $1,000, or be imprisoned for a term of not more than six months, or both, in the discretion of the court.
[N. J.S.A. 4:22-17(a)(1) (emphasis added).]
A person who shall . . . Overdrive, overload, drive when overloaded, overwork, deprive of necessary sustenance, abuse, or needlessly kill a living animal or creature, or cause or procure, by any direct or indirect means, including but not limited to through the use of another living animal or creature, any such acts to be done;
. . . . Shall forfeit and pay . . . . a sum of not less than $250 nor more than $1,000[.]
[N.J.S.A. 4:22-26(a)(1) (emphasis added).]
The Law Division judge considered the term "necessary sustenance" to be unclear, a premise with which we disagree. The term, both alone and in the context of the statutes, is a clear reference to food and water. It is flanked by descriptions of extreme cruelty by owners—animals who are "overloaded, overwork[ed,]" or "abuse[d], or needlessly kill[ed]." Nowhere else in the statutes is food or water mentioned, a baseline requirement for animal ownership in our society that belongs with the prohibitions against physical abuse and unnecessary slaughter.
"Necessary sustenance" was not defined in the statutes at the time of the alleged offenses. The Oxford English Dictionary (OED), however, defines "sustenance," in part, as "[t]he action of providing food, nourishment, or the means of subsistence to a[n] animal[.]" OED Online, entry 195219 (Dec. 2014). The OED in turn defines "subsistence" as "[t]he means of supporting life in [] animals; the means of support or livelihood" and as "[t]he action or fact of providing support for [] animal life; the provision of food or provender." Ibid. at entry 193020. See In re Taylor, 196 N.J. 162, 172-73 (2008) (resorting to dictionary definitions where the relevant statute did not define the term in question).
Available at http://www.oed.com/view/Entry/195219.
Available at http://www.oed.com/view/Entry/193020.
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Under these definitions, "sustenance" primarily refers to food or other nourishment and is correlated with bare "subsistence." This, in our view, accords with a common-sense reading of the phrase.
Though our animal welfare statutes did not define "necessary sustenance" on November 13, 2011, the date of the alleged offense, the immediate statutory context correlated this term with the provision of "proper food, drink, shelter[,] or protection from the weather," or provision of "a sufficient quantity of good and wholesome food and water." L. 2005, c. 105, § 1; L. 2005, c. 372, § 16.
To include veterinary care in the term "sustenance" would be to expand it well beyond the limits intended by the Legislature. Believing that "sustenance" was an ambiguous term, the judge then resorted to the well-established principle that, in construing ambiguous statutes, extrinsic evidence such as legislative history may be relied upon to aid interpretation.
Having recited that unobjectionable principle of statutory construction, the judge went on to discuss the August 7, 2013 amendment to the statutes. That amendment replaced the phrase "necessary sustenance" with "necessary care." L. 2013, c. 88, §§ 2-3. In other words, the judge employed a subsequent amendment to the statute to garner the predecessor law's meaning. The judge explained that, because "necessary sustenance" was later removed from the statutes and was replaced with "necessary care," including the provision of veterinary care, "the term 'necessary sustenance' as originally included in N.J.S.A. 4:22-17(a)(1) includes providing an animal with necessary veterinary care to [eliminate] suffering and maintain the health of an animal."
The August 7, 2013 amendments specify that "necessary care" in N.J.S.A. 4:22-15 includes "veterinary care to alleviate suffering and maintain health." We state the obvious, however, that had the predecessor statute's use of "necessary sustenance" included "veterinary care," there would have been no need for amendment. That the Legislature saw a need to amend the law compels the conclusion that the prior definition of "necessary sustenance" simply did not encompass veterinary care.
Although the record is not entirely clear whether the judge's decision rested on N.J.S.A. 4:22-17(a)(1) or N.J.S.A. 4:22-26(a)(1), it is clear that defendant's conduct did not come within either statute's purview. We do not reach defendant's other points on appeal as they are made moot by our decision.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION