By: Bennett Loudon//December 23, 2022
By: Bennett Loudon//December 23, 2022//
A state appeals court has reversed an animal cruelty conviction because the prosecution changed the theory of how the crime was committed at trial.
Defendant Anthony Notice was convicted in August 2018 in New York City Criminal Court on one count of violating Agriculture and Markets Law Section 353.
In a recent decision, the Appellate Division of state Supreme Court, Second Department, reversed the conviction and dismissed the charge.
In 2018, Notice was accused of “overdriving, torturing, and injuring animals or failure to provide proper sustenance for animals.”
The prosecution claimed that Notice kept two dogs (Princess and Ciroc) in a vacant lot, with no food and a frozen water bowl. The dogs had no shelter in temperatures of about 20 degrees and one of the dogs was malnourished.
In the prosecutor’s opening statement, he said “the case is about the defendant’s refusal to provide his two dogs … with the most basic needs, such as access to food, water and adequate shelter, to keep them safe and warm through the cold winter days.”
Witnesses called by the prosecutor testified to the circumstances of how the dogs were kept in the lot with no food, water, or proper shelter.
A forensic veterinarian testified that, in 2017, Princess had an ear infection and Notice was told to bring the dog back two weeks after the treatment for the ear infection, but he never returned.
Princess had a double ear infection and a torn ACL, a condition that existed for at least several weeks, or months, and was causing pain in her hind legs. After Notice was charged, Princess had surgery to repair the ACL.
During summation, the prosecutor said that an animal owner is required to provide sustenance and that defendant did not provide veterinary care for the dog’s ear infections and knee pain.
The judge denied a defense request for an instruction that the jury be told that ear infections and knee issues prior to the latest incident were not the subject of accusations against Notice.
The judge told the jury that a person is guilty of Section 353 when they deprive an animal of necessary sustenance or lets an animal be deprived of food and drink or furthers any act of cruelty to an animal.
The judge defined the term “sustenance” to include “veterinary care or shelter adequate to maintain the animal’s health and comfort.”
On appeal, Notice claimed he was denied a fair trial because the prosecution changed the theory of the case and relied on past alleged crimes to support the new theory. Notice also claimed that the instruction to the jury concerning the element of sustenance and the prosecutor’s summation remarks that defendant denied Princess veterinary care prejudiced the jury.
“The information made no reference to defendant’s failure to provide veterinary care for Princess’s ear infections and knee pain,” the court wrote.
“We find that a new theory was presented at trial based on the evidence and the prosecutor’s summation remarks indicating, among other things, that defendant failed to provide veterinary care for Princess’s infected ears and knee pain,” the court wrote.
“The variance between the charge as set forth in the accusatory instrument and the proof at trial deprived defendant of fair notice of the charge upon which he was to be tried, and prejudiced defendant,” the court wrote.
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