Memorandum Regarding the Issue of Sustenance Including Veterinary Care

A NYSHA Fact Sheet

This memorandum is not intended to provide legal advice or legal services, but simply to provide research information as understood by NYSHA with regard to the issue of sustenance as referred to in Section 353 of Article 26 of the NYS Agriculture and Markets law. Prepared May 2007.

Question Presented: Within the context of Section 353 of the NYS Agriculture and Markets Law, is there recently published case law that supports the premise that the word “sustenance” includes medical/veterinary care?

Brief Answer: In People v. Arroyo, 2004 N.Y. Misc. LEXIS 175 (N.Y.C. Criminal Ct. 2004), the court found that “sustenance” did not include medical care. However, two appellate courts found it did. In People v. Mahoney, 9 Misc. 3d 101, 804 N.Y.S. 2d 535 (2nd Dep’t App. Term 2005), the court found that “sustenance” included veterinary care. In People v. Sitors, 12 Misc. 3d 928, 815 N.Y.S. 2d 393 (Schoharie County Ct. 2006), the court cited People v. Mahoney, supra, in its overturning of a lower court decision regarding appropriate animal care. Thus, appellate court rulings have indicated that veterinary care is included within the meaning of sustenance. And though those rulings are not controlling at the Appellate Division, they provide persuasive guidance on this topic. Also, of interest is an older case, Jones v.Beame, 56 A.D.2d 778 (1st Dep’t 1977), in which the trial court decision regarding the inclusion of veterinary care as part of “sustenance” was left intact.

Facts: Sustenance is a problematic concept within the context of Section 353. Because it is not defined in the Section 350, it has been subject to interpretation.

Discussion: The issue to be determined is whether a defendant can be successfully prosecuted under Section 353 for failing to provide medical care to an animal who is in need of it. The following cases are relevant to the issue.

In March 2004, in People v. Arroyo, supra, the defendant’s dog was suffering from terminal cancer and had an apparently painful tumor on its body. The defendant chose not to provide medical care for various reasons. The trial court ruled that the defendant could not be charged with not providing medical care for the animal because Section 353 was unconstitutionally vague as applied to the facts of the case and specifically that the word “sustenance”did not afford notice to a person of ordinary intelligence that he or she is obligated to provide veterinary care to a terminally ill animal.

In 2005, People v. Mahoney, supra, was a case with similar circumstances, but there the appellate court ruled differently. A veterinarian recommended to Mahoney that the dog receive follow up care to determine if a ulcerated tumor could be operated upon. Instead, Mahoney abandoned the dog to die in the basement of a rental property when she left. In its charge to the jury, the trial court stated that the term “sustenance” was distinguishable from the term “food or drink” and meant the provision of “veterinary care and shelter adequate to maintain health and comfort.” The jury found Mahoney guilty and she appealed. The appellate court ruled that the lower court’s reading of the law was correct, saying, “We likewise find that the jury charge defining sustenance to include veterinary care and adequate shelter to maintain the dog’s health and comfort properly conveyed the appropriate law.” (Case Shepardized, no negative action. Referenced, inter alia, in People v. Sitors, supra.)

In 2006, in People v. Sitors, supra, the People were appealing two rulings of the local trial court. In its first ruling, the trial court had dismissed an application for a security bond brought by a humane agency that had taken custody of numerous horses after a police seizure. By way of reasoning, the trial court indicated that as long as the animals are alive, there cannot be a finding of animal cruelty and furthermore that Section 353 could not dictate management practices. Because the security bond action, which had a civil standard of proof, was dismissed, the defense requested that the criminal charges be dismissed based on collateral estoppel. The judge agreed and dismissed the charges. The appellate court determined that the first action which lead to the second was an erroneous interpretation of the law. The court said, “Contrary to the Town Court’s interpretation, the Agriculture and Markets law does address management practices: no one may commit an act of cruelty to an animal [emphasis in original]....What is required to constitute a violation of the Agriculture and Markets Law in a case such as this is that the defendant committed an act of cruelty to an animal by failing to provide ‘necessary sustenance’.” The court concludes, “Animal cruelty under Agriculture and Markets Law 353 includes not only those acts or omissions that would result in death, but also encompasses a broad range of acts or omissions” and then cites People v. Mahoney, supra, among other cases, to makes its point regarding omissions. The appellate court returned both the civil action and the criminal action to the lower court. (Case was Shepardized, no negative action.)

In Jones v. Beame, supra, the plaintiffs waged a suit against New York City officials wherein they alleged in the first cause of action that the defendants were not providing veterinary care, inter alia, to the animals in the various city zoos in violation of Section 353. Though the trial court dismissed many of the causes of action, it retained the one that dealt with the lack of veterinary care, inter alia. The NYC officials wanted all causes of action dismissed and appealed the decision. The First Department reversed the trial court decision, finding Jones did not have “standing” to bring the case on behalf of the animals. In its publication, Animal Fighting And Cruelty Cases in New York, A Guide for Judges, Prosecutors, and Defense Counsel, the Association of the Bar of the City of New York cited the case as demonstrating that veterinary care, inter alia, was included within the concept of “sustenance” in Section 353. In an explanatory letter to the New York State Humane Association, writing on behalf of the Association of the Bar of the City of New York, Jane Hoffman, Esq. said, “... Jones v. Beame was properly cited for the proposition that ‘absence of effective veterinary care, lack of proper habitats, inadequate protection, untrained zoo caretakers, resulting in death and mental and physical suffering, if proved, would constitute blatant cruelty to animals.’ The appellate court reversed on the ground that the individual plaintiff did not have standing to sue for violation of a New York State criminal law. It therefore did not reach the issue of whether the violations cited, if proven, would in fact constitute a violation of the cruelty law. The Supreme Court’s holding on that ground was, thus, not reviewed on appeal and is still good law.”

Conclusion:

The trial court in People v. Arroyo, supra, determined that the concept of “sustenance” as used in Section 353 did not include medical care. However, subsequent to that decision, two appellate courts in People v. Mahoney, supra, and in People v. Sitors, supra, found differently.

Though these were intermediate appellate courts, one within the Second Department, the other within the Third Department, both found that “sustenance” included the concept of providing medical/veterinary care to an animal. The decisions are not controlling, except for those lower courts in the direct appellate chain of the courts that rendered those decisions, but they are persuasive. Therefore, these cases could be used to argue that “sustenance” includes medical/veterinary care. Further, in People v. Mahoney, supra, the court did not state that any authority figure has to dictate that a person provide medical care to an animal in order to find a person guilty of not providing such care. The court simply found that the trial court was correct in defining “sustenance” to include veterinary care and adequate shelter to maintain adequate health and comfort. Also, though Jones v. Beame, supra, is an older case, that trial court also determined that the lack of veterinary care provided to animals in city zoos constituted a viable cause of action for a civil suit.

Thus, it can be argued that a person who deprives an animal of medical/veterinary care or neglects or refuses to furnish it medical/veterinary care is guilty of a violation of Section 353 of Article 26 of the Agriculture and Markets law.

Prepared by New York State Humane Association, PO Box 3068, Kingston, NY 12402