State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 2, 2015 106224 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

PAUL T. FACEY,

Appellant.

________________________________

Calendar Date: February 18, 2015

Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.

__________

Mark Schneider, Plattsburgh, for appellant.

Kristy L. Sprague, District Attorney, Elizabethtown

(Michele A. Bowen of counsel), for respondent.

__________

Lynch, J.

Appeal from a judgment of the County Court of Essex County

(Meyer, J.), rendered October 13, 2013, upon a verdict convicting

defendant of the crime of aggravated cruelty to animals.

Following a jury trial, defendant was convicted, as

charged, of aggravated cruelty to animals stemming from the

killing of a pit bull in July 2012. He was sentenced to six

months in jail plus five years of probation. Defendant appeals.

We first find that defendant's conviction was supported by

legally sufficient evidence. As relevant here, a "person is

guilty of aggravated cruelty to animals when, with no justifiable

purpose, he or she intentionally kills . . . a companion animal

with aggravated cruelty," which is defined as conduct "intended
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to cause extreme physical pain [or] done or carried out in an

especially depraved or sadistic manner" (Agriculture and Markets

Law § 353-a [1]; see People v Degiorgio, 36 AD3d 1007, 1008

[2007], lv denied 8 NY3d 921 [2007], cert denied 552 US 999

[2007]; People v Garcia, 29 AD3d 255, 259-260 [2006], lv denied 7

NY3d 789 [2006]). A companion animal "means any dog or cat"

(Agriculture and Markets Law § 350 [5]), which includes a pit

bull (see People v Siplin, 66 AD3d 1416, 1417 [2009], lv denied

13 NY3d 942 [2010]). Although he was admittedly present at the

scene while the pit bull was still alive, defendant maintains

that there is no evidence that he killed the dog and emphasizes

no weapon was ever found. The neighbor testified that after

hearing the screech of a dog coming from the woods behind his

yard, he went to investigate and encountered defendant, who was

covered in blood and crouched down with his hands on the dog. 

The dog was still alive, but its throat had been slashed. The

neighbor testified that defendant was not comforting the dog, and

had an expression of fear or panic when the neighbor inquired

what had happened. Fearing for his own safety, the neighbor

returned home and called the police. A state trooper responded

to the scene and found defendant at home with a bandaged thumb,

which defendant explained had been cut earlier that day at work. 

A veterinarian testified that there was a deep laceration in the

dog's throat, which must have been forcibly cut with a sharp

object. She explained that the dog bled to death in no more than

10 minutes. Although defendant maintains that, as he arrived, he

saw two men in camouflage leaving the scene headed in the

direction of the neighbor's house, the neighbor did not see

anyone else in the area. Viewing this evidence in the light most

favorable to the People, there was a valid line of reasoning and

permissible inferences by which the jury could conclude that

defendant committed this crime (see People v Augustine, 89 AD3d

1238, 1242 [2011], affd 21 NY3d 949 [2013]; People v Degiorgio,

36 AD3d at 1009; People v Garcia, 29 AD3d at 261).

Next, defendant contends that County Court erred in

rendering a supplemental jury instruction that effectively

shifted the burden of proof to defendant to prove his own

innocence. While defendant failed to preserve this issue through

an appropriate objection, given the nature of the challenged

instruction, we exercise our interest of justice jurisdiction to
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take corrective action (see CPL 470.15 [3] [c]; People v Thomas,

50 NY2d 467, 472 [1980]; see also People v Konigsberg, 137 AD2d

142, 147 [1988], lv denied 72 NY2d 912 [1988]). Without

question, the People bear the burden of proving a defendant's

guilt beyond a reasonable doubt, and County Court so charged the

jury twice before giving the instruction at issue. After

receiving a further note from the jury requesting definitions for

certain terms, including "depraved" and "sadistic," the court

determined that it would "be beneficial . . . to once again go

over the definition of aggravated cruelty." In doing so,

however, the court advised the jury: "Thus, if you find beyond a

reasonable doubt that the defendant did not engage in conduct

which caused the animal extreme pain or which was not done or

carried out in an especially depraved or sadistic manner, you

must find the defendant not guilty." This charge impermissibly

shifted the burden of proof by suggesting that defendant needed

to prove his innocence beyond a reasonable doubt. Compounding

the problem, the charge was rendered shortly before the jury

rendered the guilty verdict. In our view, this was a fundamental

error, requiring the reversal of the judgment and a new trial

(see Sullivan v Louisiana, 508 US 275, 278 [1993]; People v

Antommarchi, 80 NY2d 247, 251-252 [1992]; People v Victor, 62

NY2d 374, 377 [1984]).

To the extent not rendered academic, defendant's remaining

contentions have been reviewed and are without merit.

Peters, P.J., Lahtinen and Garry, JJ., concur.

ORDERED that the judgment is reversed, as a matter of

discretion in the interest of justice, and matter remitted to the

County Court of Essex County for a new trial.

ENTER:

Robert D. Mayberger

Clerk of the Court