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The Rogak Report: 02 April 2006 ** Animals - Fish **

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  • Lawrence Rogak
    GOLDFISH ARE DOMESTICATED ANIMALS AND STOMPING THEM TO DEATH IS A FELONY People v. Michael Garcia, NYLJ 04/03/06 (1st Dept 2006) In a decision which appears
    Message 1 of 1 , Apr 2, 2006

      People v. Michael Garcia, NYLJ 04/03/06 (1st Dept 2006)

      In a decision which appears to be the first of its kind, the
      Appellate Division has held that stomping a child's pet goldfish to
      death supports a conviction of the charge of aggravated cruelty to
      animals. The Court's decision follows:

      "The earliest known domestic animal appears to be the dog, a
      companion to mankind as early as 15,000 B.C. Goats, sheep, pigs and
      cows followed in domestication in the next ten thousand years.
      Horses, however, did not succumb to the lure of mankind's presence
      until 4000 B.C. The domestication of fish is believed to have begun
      much later, in China during the Tang Dynasty, around 620 A.D. The
      common goldfish (Carassius Auratus), a member of the carp family that
      was first domesticated in China, is now the most commonly kept
      aquarium fish. The goldfish's leap from domesticated fish to family
      pet and companion may have happened as early as 1368 during the Ming
      Dynasty. The goldfish's popularity in the West began as the first
      public aquarium opened in London in 1853. Keeping goldfish as
      companions and pets in the United States has been popular since that

      "Agriculture and Markets Law §353-a(1), Aggravated Cruelty To
      Animals, represents the Legislature's recognition that man's
      inhumanity to man often begins with inhumanity to those creatures
      that have formed particularly close relationships with mankind. NY
      Assembly Memo in Support of L1999, ch.118, 1999 McKinney's Session
      Laws of NY, at 1585. The scope of §353-a(1) is a question of first
      impression for the Appellate Division, and the instant case compels
      the conclusion that its reach is broad."

      "On August 2, 2003, Emelie Martinez was living in an apartment with
      the defendant, her three children, Juan Torres, Crystal and
      Emaleeann, and Jesus Rabassa, an 18-year-old high school student.
      Juan was nine years old, Crystal eight and Emaleeann five. Also
      living in the apartment were two dogs, a cat, and three goldfish
      named after the children, Junior, Crystal and Emma."

      "At about 3:00 a.m., Martinez awoke on the sofa to find the defendant
      standing over her, holding the fish tank. She asked him what he was
      doing. The defendant threw the fish tank into the television set,
      saying, "That could have been you." The fish tank shattered, as did
      the television screen and a portion of a glass wall unit. The
      defendant also destroyed Juan's VCR by ripping it out and throwing it
      against the wall unit."

      "Eventually, the defendant and Martinez began cleaning up the mess.
      Juan came out of his room, with the girls behind him, crying. The
      defendant turned to Juan and said, 'You want to see something
      awesome?' and stomped on Juan's fish, killing the fish. Martinez had
      to calm the children before she could continue cleaning up the mess."

      "The next day, the defendant attacked Martinez inside her bedroom. He
      grabbed Martinez by the right hand, and flung her onto the bed. He
      began punching her head and face with closed fists. One blow forced
      her teeth against her inner cheek and caused bleeding inside her
      mouth. After punching her three or four times, the defendant allowed
      her to get up and she went into the bathroom, where she tried to stop
      the bleeding by rinsing her mouth with cold water."

      "The defendant followed her into the bathroom and told Martinez to go
      back to the bedroom, which she did. She sat down on the bed, and the
      defendant, after closing the door, climbed onto her, pinned her down
      with his knee on her chest, and began choking her with his right
      hand. She had trouble breathing and could not scream for help. While
      the defendant was choking Martinez with his right hand, he reached
      into his pants pocket with his left, and pulled out a gravity knife
      he always carried. Martinez managed to "wiggle" her way through,
      break loose and scream for her son. The defendant dropped the knife
      on the bed, unopened. The assault eventually escalated to the point
      where the defendant attacked Rabassa and nine-year-old Juan. The
      defendant was arrested later that same day."

      "He was indicted for attempted assault in the first degree, pursuant
      to N.Y. Penal Law §§110.00, 120.10 (intent to cause serious physical
      injury by means of a deadly weapon or a dangerous instrument)...."

      "The trial court also convicted the defendant of aggravated cruelty
      to animals, a felony. The court determined that the pet goldfish of
      Martinez and her children was a companion animal within the meaning
      of Agriculture and Markets Law §§353-a(1) and 350(5), and that the
      statute is not unconstitutionally vague."

      "The defendant argues that his 'stomping of young Juan's pet
      goldfish' is a misdemeanor pursuant to Agriculture and Markets Law
      §353 (unjustifiable killing of any animal, whether wild or tame), and
      not a felony because a fish is not a 'companion animal' and
      his 'stomping' did not constitute 'aggravated cruelty' within the
      meaning of the statute."

      "Agriculture and Markets Law §353-a(1) provides: A person is guilty
      of aggravated cruelty to animals when, with no justifiable purpose,
      he or she intentionally kills or intentionally causes serious
      physical injury to a companion animal with aggravated cruelty. For
      purposes of this section, aggravated cruelty shall mean conduct
      which: (i) is intended to cause extreme physical pain; or (ii) is
      done or carried out in an especially depraved or sadistic manner."

      "The term 'companion animal' is defined in §350(5): 'Companion
      animal' or 'pet' means any dog or cat, and shall also mean any other
      domesticated animal normally maintained in or near the household of
      the owner or person who cares for such other domesticated
      animal. 'Pet' or 'companion animal' shall not include a 'farm animal'
      as defined in this section."

      "The defendant contends that a fish is not a companion animal because
      it is not domesticated and because there is no reciprocity or
      mutuality of feeling between a fish and its owner, such as there is
      between a dog or a cat and its owner."

      "In the absence of a definition in the statute, the defendant, citing
      4 Am. Jur. 2d, Animals §2, p. 346, Lawyers Cooperative Publishing
      (1995), defines 'domesticated animals' as those that 'no longer
      possess the disposition or inclination to escape,' and claims
      that 'if dropped in a pond and offered the opportunity to swim away,
      a goldfish will do so without any hesitation and not look back'. He
      maintains that the statute's reference to 'any other' domesticated
      animal limits 'companion animals' to those that are similar to dogs
      or cats, that is, those with a degree of sentience sufficiently
      elevated to enable them to enter into a relationship of mutual
      affection with a human being. Furthermore, '[b]eloved household pets
      (fish) may be, but "companion animals" in the same vein as dogs or
      cats they are not'."

      "The defendant's contention that all household pets are equal but
      some are more equal than others is manifestly not derived from the
      statute. The Legislature simply did not require a reciprocity of
      affection in the definition of 'companion animal.' To the contrary,
      the statutory language is consistent with the People's contention
      that, 'domesticated' is commonly understood to mean 'to adapt (an
      animal or plant) to life in intimate association with and to the
      advantage of humans'. Thus, a goldfish such as the one herein is a
      domesticated rather than a wild animal within the common meaning of
      the term. Moreover, the goldfish was, as the statute
      requires, 'normally maintained in or near the household of the owner
      or person who cares for [them].' Indeed, acknowledging that the
      goldfish is one of the most common household pets, defense counsel
      stipulated at trial that there are 'millions of fish owners
      throughout the country.'"

      "The defendant's argument that goldfish are not domesticated animals
      because given the opportunity they would leave home is without merit.
      While this trait arguably distinguishes fish from dogs and, probably
      to a lesser extent cats, it fails to take into account that many
      other animals commonly considered pets, such as hermit crabs,
      gerbils, hamsters, guinea pigs and rabbits, would depart for less
      confining venues and greener pastures if given the opportunity.
      Loyalty, if that is what it is, is merely another characteristic
      urged by defendant - but not included by the Legislature - as a
      defining feature of a companion animal."

      "Moreover, Agriculture and Markets Law §353-a(2) provides
      that 'nothing contained in this section shall be construed to
      prohibit or interfere in any way with anyone lawfully engaged in
      hunting, trapping, or fishing . . . .' (emphasis added). This
      provision would be superfluous if a fish could not be considered a
      companion animal."

      "While the defendant maintains that the statute's definition
      of 'companion animal' is unconstitutionally vague, we find, as did
      the trial court, the statute sufficiently clear to apprise a person
      of ordinary intelligence that the sort of conduct in which the
      defendant engaged, comes within the statute's prohibition. See United
      States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed.
      989, 996 (1954)."

      "The defendant further asserts that because the fish's death was
      instantaneous, it was not accompanied by 'extreme pain' or
      accomplished with 'especial' depravity or sadism, and that therefore
      the killing was not accomplished with any heightened level of
      cruelty. The trial court correctly observed that the legislative
      history of the statute indicates that the crime was established in
      recognition of the correlation between violence against animals and
      subsequent violence against human beings. People v. Garcia, 3 Misc.3d
      699, 702, 777 N.Y.S.2d 846, 849 N.Y. Sup. Ct. 2004). Thus, it must be
      inferred that the Legislature's concern was with the state of mind of
      the perpetrator rather than that of the victim."


      "Accordingly, the judgment of the Supreme Court, New York County
      (Marcy L. Kahn, J.), rendered February 23, 2004, convicting
      defendant, after a nonjury trial, of attempted assault in the second
      degree, criminal possession of a weapon in the third degree, criminal
      mischief in the third degree, assault in the third degree (three
      counts), endangering the welfare of a child (three counts), and
      aggravated cruelty to animals in violation of Agriculture and Markets
      Law §353-a(1), and sentencing him, as a second violent felony
      offender, to an aggregate term of 7-1/2 to 15 years, should be
      modified, on the law, to the extent of vacating the conviction for
      attempted assault in the second degree, and replacing the second
      violent felony offender adjudication with a second felony offender
      adjudication, reducing the aggregate sentence to 5-1/2 to 11 years,
      and otherwise affirmed."

      Comment: This is not an insurance or negligence case, but the fact
      that pet goldfish are officially designated companion animals is
      certainly something that should be noted. As for this particular
      defendant, it sounds to me like he's the one who should be living in
      a cage -- and it looks like he will, for the next 5 1/2 to 11 years.

      Larry Rogak
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