Thursday, May 23, 2013

People v. Garcia case brief

People v. Garcia case brief
29 A.D.3d 255


Defendant challenged a judgment of the Supreme Court, New York County (New York), convicting him, after a nonjury trial, of attempted assault in the second degree, criminal possession of a weapon in the third degree, criminal mischief in the third degree, assault in the third degree (three counts), endangering the welfare of a child (three counts), and aggravated cruelty to animals, and imposing sentence as a second violent felony offender.


Defendant claimed his "stomping" on a pet goldfish was a misdemeanor (N.Y. Agric. & Mkts. Law § 353) and not a felony under N.Y. Agric. & Mkts. Law § 353-a(1) because a fish was not a "companion animal" and his actions did not constitute aggravated cruelty.

The appeals court found the Legislature did not require a reciprocity of affection in the definition of "companion animal."

The statute's language was consistent with the People's claim that "domesticated" was commonly understood to mean "to adapt (an animal or plant) to life in intimate association with and to the advantage of humans." Thus, a goldfish was a domesticated rather than a wild animal under the common meaning. Section 353-a was sufficiently clear to apprise a person of ordinary intelligence that the sort of conduct in which defendant engaged came within its prohibition. The trial court improperly exercised discretion in considering attempted assault in the second degree as a lesser-included offense of first-degree attempted assault. It was not until after summations that the court indicated it would consider attempted second-degree assault, a significant departure from the prosecution's theory of the case.


The judgment was modified, on the law, to the extent of vacating the conviction for attempted assault in the second degree, and replacing the second violent felony offender adjudication with a second felony offender adjudication, reducing the aggregate sentence to 5 1/2 to 11 years, and otherwise affirmed.

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