People v Richardson (Mary)
Annotate this CaseDecided on May 7, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LIPPMAN and OWEN, JJ
2002-711 D CR.
The People of the State of New York, Respondent,
against
Mary Helen Richardson, Appellant.
Appeal from a judgment of the Justice Court of the Town of Red Hook, Dutchess County (Richard R. Griffiths, J.), rendered April 25, 2002. The judgment convicted defendant, upon a jury verdict, of 12 counts of depriving an animal of necessary sustenance, food or drink.
Appeal held in abeyance and matter remanded to the Justice Court of the Town of Red Hook to conduct a reconstruction hearing to determine whether defendant was present at sidebar and in camera conferences with prospective jurors and, if not, whether defendant voluntarily, knowingly and intelligently waived said right and, in the event there was no such waiver, what transpired during the conferences.
Defendant and her father, Harry A. Richardson, were charged in a single accusatory instrument and, following a joint jury trial, convicted of 12 counts of violating former section 353 of the Agriculture and Markets Law in that on or about, and between, January 1, 2001 and April 9, 2001, they deprived 12 specified horses of necessary sustenance, food or drink.
At the conclusion of the People's case, and again after the defense rested, defendant moved for dismissal alleging that the People failed to establish defendant's guilt beyond a reasonable doubt. Since neither motion set forth with any specificity the alleged evidentiary deficiency in the People's proof, the legal sufficiency of the evidence was not preserved for appellate review (see People v Gray, 86 NY2d 10 [1995]; People v Udzinski, 146 AD2d 245 [1989], lv denied 74 NY2d 853 [1989]; see also People v Brown, 17 AD3d 691 [2005], lv denied 5 NY3d 804 [2005]). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish defendant's guilt of failure to provide necessary sustenance, food or drink to the 12 horses (Agriculture and Markets Law former § 353) beyond a reasonable doubt. The evidence at trial established that the horses were deprived of sufficient water and food, were emaciated, and [*2]living in unsanitary conditions.
Former section 353 of the Agriculture and Markets Law provided in pertinent
part as follows:
"§ 353. Overdriving, torturing and injuring animals; failure to provide proper sustenance
A person who . . . deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be . . .deprived of necessary food or drink, . . . is guilty of a misdemeanor, punishable by imprisonment for not more than one year, or by a fine of not more than one thousand dollars, or by both."
The term "sustenance," as set forth in the statute, has been held to be distinguishable from the term "food or drink" and to include veterinary care and shelter adequate to maintain the animal's health and comfort (see People v Mahoney, 9 Misc 3d 101 [App Term, 9th & 10th Jud Dists 2005], lv denied 5 NY3d 854 [2005]; see also People v O'Rourke, 83 Misc 2d 175, 178 [1975]). A violation of the statute is established upon proof that a defendant was entrusted with care of an animal and is cognizant of the fact that the animal was not being provided with necessary sustenance, food or drink (see Agriculture and Markets Law former § 353; People v Arcidicono, 75 Misc 2d 294 [1973], affd 79 Misc 2d 242 [App Term, 9th & 10th Jud Dists 1974]; People v O'Rourke, 83 Misc 2d 175, supra).
Contrary to defendant's contention, the People presented evidence that defendant did more than merely provide assistance to her father in caring for the horses. Defendant was at the farm on a daily basis and was observed providing some hay and water to the animals and doing some cleaning of the stalls. When the horses were being examined, it was defendant who brought them out of the stalls, provided the veterinarians with the horses' histories and assisted the veterinarians with their insurance examinations. Defendant also administered a tranquilizer to a horse. Accordingly, the People sufficiently established that defendant was entrusted with caring for the animals. Moreover, having observed the animals' poor physical conditions and accommodations, defendant, based on her past history and familiarity with horses, can be presumed to know that the animals were being deprived of necessary sustenance, food and drink (see People v O'Rourke, 83 Misc 2d at 180). In view of the foregoing, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]).
Defendant's contentions on appeal concerning the adequacy of various aspects of the jury charge are unpreserved as defense counsel failed to raise any objections thereto (see CPL 470.05 [2]; see also People v Faulkner, 36 AD3d 951 [2007]). Counsel's silence at a time when any error by the court could have been obviated by timely objection renders the claims unpreserved and unreviewable (see People v Starling, 85 NY2d 509, 516 [1995]; People v Rivera, 233 AD2d 344 [1996], lv denied 89 NY2d 946 [1997]). In any event, we find no error with the charge. [*3]
A full circumstantial evidence charge, i.e., one wherein the court instructs the jury that the facts from which the evidence of defendant's guilt is drawn must be inconsistent with his innocence and must exclude to a moral certainty every other reasonable hypothesis, is appropriate in cases where only circumstantial evidence of guilt is presented (see People v Barnes, 50 NY2d 375, 380 [1980]; see also People v Roldan, 88 NY2d 826, 827 [1996]). Since the People's case rested, at least partially, on direct evidence, defendant was not entitled to a full circumstantial evidence charge (see People v Barnes, 50 NY2d at 380; see also People v McDonald, 287 AD2d 655, 656 [2001], lv denied 97 NY2d 685 [2001]; People v Chillino, 186 AD2d 260, 261-262 [1992], lv denied 80 NY2d 973 [1992]).
In addition, we have reviewed defendant's remaining contentions relative to the charge and find them to be without merit. The charge, when viewed in its entirety, set forth the fundamental legal principles applicable to criminal cases in general and to the instant situation in particular, and adequately explained the application of the law to the facts. Accordingly, the court's charge satisfied the statutory requirements (see CPL 300.10 [2]; see also People v Drake, 7 NY3d 28, 33-34 [2006]; People v Knight, 87 NY2d 873, 874 [1995]).
The court did not improperly delegate judicial authority or deprive defendant of her right to be present at a material stage of the trial when, in response to requests from the jury, first for a dictionary and second for a definition of the word "emaciated," it told the officer to inform the jury that their requests could not be granted. The officer's communication with the jury was purely ministerial and did not constitute "information" or "instruction" within the meaning of CPL 310.30 (see People v Bonaparte, 78 NY2d 26, 30-31 [1991]; People v Johnson, 27 AD3d 289 [2006], lv denied 6 NY3d 895 [2006]; People v Noel, 10 AD3d 735 [2004], lv denied 3 NY3d 759 [2004]).
Defendant contends that the court erroneously denied her motion to set aside the verdict or conduct a hearing due to the People's failure to reveal exculpatory information concerning the efforts made by the owner of the farm at which the horses were kept to prohibit defendant from providing food and water to the animals. The exculpatory information, set forth in the affidavit in support of the motion, was to the effect that the affiant informed the People before trial that the owner stated that he had not brought an action against Harry Richardson for nonpayment of rent because it was easier to turn off the water and call the Dutchess County Society for the Prevention of Cruelty to Animals. The prosecutor stated in her affirmation in opposition to the motion that she did not recall affiant having provided the information to her.
Post-conviction Brady claims (Brady v Maryland, 373 US 83 [1963]) are usually denied unless the putative exculpatory information was "highly material to the defense" (People v Simmons, 36 NY2d 126, 132 [1975]), thereby depriving the defendant of an opportunity to cross-examine a witness on a trial issue, and depriving the defendant of due process (see People v Martin, 240 AD2d 5, 9 [1998], lv denied 92 NY2d 856 [1998]). Here, defendant was acutely aware of the dispute between the owner of the farm and her father. In addition, since the owner was not called as a witness by the People, the statement could not be used for impeachment purposes.
Defendant's remaining contentions regarding the numerous alleged errors committed by the court during the course of the trial were considered and found to be without merit, with one possible exception. Defendant has alleged violations of her right to be present during selection of the prospective jurors. [*4]
A defendant has a fundamental right to be present at all material stages of the trial (see CPL 260.20; People v Turaine, 78 NY2d 871, 872 [1991]; see generally People v Dokes, 79 NY2d 656, 659-660 [1992]), including the impaneling of the jury (People v Velasco, 77 NY2d 469, 472 [1991]; People v Mullen, 44 NY2d 1, 4 [1978]). A defendant's right to be present during discussions relating to the qualifications of jurors or prospective jurors depends on the subject matter of the discussions. A defendant's right to be present is not violated where the discussions relate to juror qualifications such as physical impairment, family obligations or work commitments (see People v Camacho, 90 NY2d 558, 561 [1997]; People v Antommarchi, 80 NY2d 247, 250 [1992], rearg denied 81 NY2d 759 [1992]; People v Velasco, 77 NY2d at 472-473). The court may not conduct an interview that concerns a juror's background, bias or hostility, or ability to weigh the evidence objectively, unless defendant is present, as that would constitute a material stage of a trial (see People v Antommarchi, 80 NY2d at 250; see also People v Maher, 89 NY2d 318, 324 [1996]; People v Sloan, 79 NY2d 386, 392-393 [1992]). Although the right to be present during questioning of prospective jurors on matters of bias or prejudice may be waived by a voluntary, knowing and intelligent choice (People v Williams, 92 NY2d 993 [1998]; People v Vargas, 88 NY2d 363, 375-376 [1996]), a waiver by defendant's counsel outside of defendant's presence is ineffective (see People v Antommarchi, 80 NY2d at 250), and a waiver by defendant will not be inferred from a silent record (see People v Allen, 300 AD2d 1098 [2002]; see also People v Lopez, 6 NY3d 248, 255 [2006]; People v Callahan, 80 NY2d 273, 283 [1992]). Moreover, a defendant is not required to object to his exclusion in order to preserve a claim that he was denied the right to be present (see People v Antommarchi, 80 NY2d at 250; see also People v Dokes, 79 NY2d at 662; People v Mangan, 258 AD2d 819 [1999], lv denied 93 NY2d 927 [1999]).
Notwithstanding the foregoing, there exists a distinction between those violations that require reversal and those that are harmless error. In instances where a prospective juror is sworn as a juror, is peremptorily challenged by defense counsel, or is excused by consent of defense counsel, the violation will result in a reversal of defendant's conviction (see People v Davidson, 89 NY2d 881, 883 [1996]; see also People v Allen, 300 AD2d 1098, supra). In such instances, the defendant may be deemed to have been deprived of the opportunity to provide valuable input regarding his attorney's decision (People v Davidson, 89 NY2d at 883; see People v Sloan, 79 NY2d at 392). However, where it appears from the record that a prospective juror was excused by the court based on a challenge for cause or a peremptory challenge by the
People, the violation of defendant's right will be deemed harmless since any contribution by defendant would have been superfluous (see People v Maher, 89 NY2d at 325; see also People v Vargas, 88 NY2d at 378; People v Roman, 88 NY2d 18, 26-28 [1996]).
In the case at bar, there is nothing in the record from which this court can determine whether defendant was present during sidebar and in camera conferences with prospective jurors. Moreover, the record is silent as to whether defendant affirmatively waived her right to be present (see People v Allen, 300 AD2d 1098, supra; see also People v Cohen, 302 AD2d 904 [2003]). The record simply reveals that said prospective jurors were questioned individually in the presence of counsel. Although some of the prospective jurors questioned served on the jury, others were excused by the court on consent of the parties, others for cause and others peremptorily challenged. However, it cannot be determined from the record the nature of the [*5]discussions and the basis for the dispositions. In the absence of said information, defendant's claim cannot be resolved. Since the foregoing raises issues sufficient to rebut the presumption of regularity (see People v Velasquez, 1 NY3d 44 [2003]; see also People v Cahill, 2 NY3d 14 [2003]), this court must reserve decision and remit the matter to the court below for a reconstruction hearing on said issues (see People v Allen, 300 AD2d 1098, supra; People v Sands, 280 AD2d 561 [2001]; People v Ramos, 245 AD2d, 314, 315 [1997]).
At this juncture, we do not pass upon the propriety of the sentence imposed.
Rudolph, P.J., Lippman and Owen, JJ., concur.
Decision Date: May 7, 2007
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