The Rogak Report: 02 April 2006 ** Animals - Fish **
- GOLDFISH ARE "DOMESTICATED ANIMALS" AND STOMPING THEM TO DEATH IS A
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
"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.