People v Hancock
Annotate this CaseDecided on March 4, 2013
City Court of Mount Vernon
The People of the State of New York, Plaintiff,
against
Jessica Hancock, Defendant.
11-3961
Westchester County District Attorney
Mount Vernon branch
Barry Swiersky
Attorney for Defendant
P.O. Box 893
White Plains, NY 10602
Adam Seiden, J.
The defendant, charged by misdemeanor information with one count of Abandonment of Animals in violation of Agriculture & Market Law § 355, moves to dismiss the charge in the interest of justice.
The People oppose the motion.
The information charges that at 267 S. 1`st Avenue. Mt. Vernon, NY on July 31, 2011 through August 5, 2011, "the defendant . . . did leave a brown rabbit that she owned in the 2nd floor of 267 S. 1st Avenue without food or water. The rabbit was discovered on July 31, 2011 in the evening by Sakina Reaux. Defendant and her family were repeatedly asked to come to get the rabbit and while they got other items, they never did take the rabbit or provide any food or water despite temperatures reaching over 90 degrees. The rabbit was taken by SPCA of Westchester on August 5, 2011."
Agriculture and Markets Law § 355 provides:
A person being the owner or possessor, or having charge or custody of
an animal, who abandons such animal, or leaves it to die in a street, road
or public place, or who allows such animal, if it become disabled, to lie in a
public street, road or public place more than three hours after he receives
notice that it is left disabled, is guilty of a misdemeanor.
In support of the motion, defendant argues that on or about July 31, 2011,
defendant and her family moved out of their apartment at 267 South 2nd Avenue. Within
[*2]
the next few days, defendant's landlord, Ramone Bennett and his wife, Sakima Reaux, contacted the SPCA of Westchester County and reported that defendant abandoned a rabbit when she moved out of the apartment. Defendant was arrested on September 27, 2011 at the Mount Vernon Animal Shelter and charged with the instant offense.
The defendant contends that the above charge should be dismissed pursuant to CPL 170.40 in the interest of justice because the crime created no risk of harm to a person, the rabbit was not harmed in any way by being abandoned, since it was immediately discovered by the landlord and turned over to SPCA. Defendant also argues that a review of the supporting deposition reveals no assertion that the rabbit was seen in the apartment before the day the defendant moved out or that she was ever seen with a rabbit by any of the People's witnesses. Thus, defense counsel argues, the supporting deposition, does not show definitively that defendant was the owner or possessor of the rabbit. Counsel argues that defendant is a 34 year old mother of five children and is a widow. Defendant is unemployed and supports her family with survivor benefits and public assistance. Counsel maintains that defendant aspires to work in the veterinary field and will start school at Westchester Community College in January 2013 to pursue studies in that field, while working towards her GED. He affirms that defendant has volunteered to do work at the Mount Vernon Animal Shelter but due to the pendency of this case, she has not been cleared to be a volunteer at the shelter. Defendant has no criminal convictions. Counsel also argues that little would be served by punishing defendant for an alleged crime that caused no harm to an animal and that a conviction would undermine any chance for defendant to pursue veterinary work. Finally, counsel argues that in view of the nature of the crime charged, dismissal would have no adverse impact upon either the safety or the welfare of the general community nor the public confidence in the criminal justice system.
In opposition the People argue that but for the intervening actions of the landlord, the rabbit could have suffered great harm and the fact that the rabbit was unharmed does not mitigate the seriousness of the crime. The People also state that defendant does not have any criminal convictions, but has been convicted of disorderly conduct in both 1999 and 2010. Finally the People state that it is troubling that the defendant is applying to be a veterinarian given the nature of the charges.
A criminal charge may be dismissed in furtherance of justice pursuant to CPL 170.40 where there exists "some compelling factor or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in an injustice" (People v Clayton, 41 AD2d 204 (2d Dept 1973)). Such relief is to be exercised sparingly, "in the unusual case that cries out for fundamental justice beyond the confines of conventional considerations" (People v Belge, 41 NY2d 60 (1976)). "When deciding a motion to dismiss in the interest of justice, it is not necessary to engage in a point-by-point "catechistic" discussion of all ten factors Instead, the court is required to consider the factors individually and collectively' ." (People v Gragert, 1 Misc 3d 646, 765 NYS2d 471 (Crim Ct. NY Co. 2003)).
The court does not underestimate the seriousness of the charge brought against the defendant. However, under the totality of the circumstances, the court finds that dismissal is warranted. Here, the rabbit was not harmed in anyway. The factual [*3]allegations do not set forth that the defendant was known by the landlords to own or possess a pet rabbit prior to them discovering the rabbit in the premises after she moved out of the premises with her family. The Court further notes that the defendant has no criminal convictions.After consideration of all the factors contained in CPL 170.40, the court finds that dismissal in the interest of justice is warranted under these circumstances.
Therefore, the defendant's motion to dismiss the charge in the interest of justice is granted.
This constitutes the Decision and Order of this Court.
Dated:March 4, 2013
Mount Vernon, New York
____________________________________
Hon. Adam Seiden
Associate City Judge of Mount Vernon
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