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In a case of first impression, a Brooklyn judge has ruled that a state law forbidding cruelty to animals is unconstitutional when applied to defendants who fail to provide medical treatment for their pets’ terminal illnesses. The decision will be published Thursday. Kings County Court Judge Margarita Lopez Torres held that a provision of Agriculture and Markets Law (AML) did not adequately notify defendant Manuel Arroyo that his failure to have his dog treated for a grapefruit-sized tumor ran afoul of the law. The judge determined that AML �353 did not give notice to people of ordinary intelligence that they were obligated to provide veterinary care to sick animals. Judge Torres therefore granted the defendant’s motion to dismiss People v. Arroyo, KNO21091-02, finding that the law, as applied, was unconstitutionally vague. The ruling stemmed from the observations made by a special investigator with the American Society for the Prevention of Cruelty to Animals, who went to the defendant’s Brooklyn home and discovered the dog, a shepherd mix, with a large tumor hanging from its stomach. The agent also saw that the dog had difficulty walking due to pain. Following the first agent’s visit, Special Agent Anne-Marie Lucas and a TV crew for the show “Animal Precinct” went to Mr. Arroyo’s home. After speaking with a man who identified himself as a friend of Mr. Arroyo, the agent took the dog. It received surgery and was diagnosed with terminal cancer. The situation appeared in an episode of “Animal Precinct.” Mr. Arroyo later went to the local ASPCA office, at Ms. Lucas’ request, and acknowledged the dog was his. He also said he could not afford to treat the dog. The defendant subsequently was arrested for violating AML �353, which in general prohibits cruelty to animals. Violation of the law is a misdemeanor punishable by up to one year in prison and a $1,000 fine. In support of his motion to dismiss, Mr. Arroyo argued that AML �353 was vague because the terms in the statute, requiring owners to give “necessary sustenance” and to prevent “unjustifiable physical pain,” were not specific enough to provide notice that an owner must give medical care to a terminally ill animal. The prosecution argued that AML �353 was not so vague as to violate due process standards and that the statute gave enough notice to Mr. Arroyo that he was required to get veterinary care for his dog. In particular, the prosecution argued that the intent of the Legislature and wording of the statute made it clear that the term “sustenance” meant more than food and drink. In considering the defendant’s void-for-vagueness argument, Judge Torres was required to determine whether the term “necessary sustenance” in the statute included giving medical care to an animal. She also had to determine whether the term “unjustifiable” conveyed sufficient notice to people that their decision not to provide a pet with medical care was a crime. As for the term “necessary sustenance,” the judge considered the lone reported case addressing the issue of whether the term “sustenance” in the context of AML �353 included medical treatment. In People v. O’Rourke, 83 Misc.2d 175, Manhattan Criminal Court in 1975 held that forcing a limping horse to continue working without supplying necessary medical attention constituted neglect under the statute by a failure to provide sustenance. But Judge Torres distinguished that case from the situation before her. She noted that the owner in the O’Rourke case had received two prior summonses ordering him to relieve the horse from work. She further wrote that O’Rourke dealt with an animal used for labor. Turning to the intent of the Legislature and the plain meaning of the law, the judge concluded that “necessary sustenance” did not include medical care. “Therefore, the provision making it a violation of the statute to fail to provide necessary sustenance does not afford notice to a person of ordinary intelligence that not providing medical care for an animal is a violation of the statute,” she wrote. ‘Unjustifiable Pain’ As for the term “unjustifiable” as it applied to an owner’s responsibility in alleviating the animal’s level of pain, the judge noted an array of state court decisions, which were split on the issue of whether the term was vague and incapable of conveying a proscription. From reading those decisions and others in New York, Judge Torres wrote that it was evident that what was “unjustifiable” in the context of anti-cruelty statutes was “what is not reasonable, defensible, right, unavoidable or excusable.” She also noted that the statute did not require owners to prevent their pets from experiencing pain, but unjustifiable pain. As such, the judge wrote that creating a situation of “unjustifiable pain” for the animal did not include a decision to allow it to die of “natural causes.” Judge Torres cited several cases where courts had ruled that anti-cruelty statutes included a failure to provide medical care. But she wrote that those cases dealt with malnourished animals, in which the owner’s decision not to seek care was part of a pattern of neglect. Finally, the judge wrote that the task of including medical treatment in the state law did not rest with the judiciary. “[T]he court is very mindful that animals are living creatures that feel pain and experience suffering,” she wrote. “If we, as a society, have arrived at the point where we feel that the provision of medical care to alleviate or avoid pain and suffering is a duty undertaken by pet owners toward their pets, and that failure to fulfill this duty should be a crime, it is incumbent upon our Legislature to enact a provision that clearly sets the standard for � and gives notice of � the proscribed conduct. The legislatures of other states have already done so.” Kings County Assistant District Attorney Anita Channapati represented the prosecution. Mr. Arroyo was represented by Clinton Hughes of the Legal Aid Society.

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