N.Y. Court Finds Animal Cruelty Extends to Pet Fish
By Mark Fass
New York Law Journal
03-30-2006
In a case of first impression, New York's Appellate Division, 1st Department, has upheld the felony aggravated-cruelty-to-animals conviction of a man who, in the midst of a violent attack on his girlfriend and her family, turned to her 9-year-old son, and said, "You want to see something awesome?" and then purposefully crushed a pet goldfish underneath his foot.
The decision turned largely on whether a goldfish may be considered a domesticated, "companion animal."
In a 17-page opinion that included an extended discourse into the history of domestication, the 1st Department ruled that the reach of the state's Aggravated Cruelty to Animals law is broad.
Specifically, the panel held, a goldfish may indeed be considered a pet under the law.
"[T]he 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,'" Justice James M. Catterson wrote for the unanimous panel in People v. Garcia, 7863. "Thus, a goldfish such as the one herein is a domesticated rather than a wild animal within the common meaning of the term."
He added, "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 panel however modified Manhattan Supreme Court Justice Marcy L. Kahn's decision, vacating defendant Michael Garcia's conviction for attempted assault and reducing his aggregate sentence for the attack from 7-1/2-to-15 years to 5-1/2-to-11 years.
Garcia went on a rampage against Emelie Martinez and her family on Aug. 2, 2003.
"At about 3:00 a.m., Martinez awoke on the sofa to find the defendant standing over her, holding the fish tank," according to the decision. "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."
Garcia also shattered the VCR owned by Martinez's 9-year-old son, Juan.
Later, as Garcia helped clean up the mess, Juan came out of his room with his two younger sisters behind him, crying. At that point, Garcia crushed the goldfish -- one of three the family owned, each named for a different sibling.
The next day the violence continued, with Garcia beating Martinez repeatedly in her bedroom and then attacking Juan.
He was arrested later that day and convicted of attempted assault, criminal possession of a weapon, criminal mischief, assault, endangering the welfare of a child and aggravated cruelty to animals.
COMPANION FISH
On Tuesday, the 1st Department vacated the attempted-assault conviction, but it upheld the remaining convictions and set forth new precedent regarding the types of animals that are considered pets under Agriculture and Markets Law §353-a(1).
The "Aggravated Cruelty To Animals [law] 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," Catterson wrote. "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."
Known as Buster's Law -- in honor of an 18-month-old tabby that was doused with kerosene and set on fire by a Schenectady, N.Y., teenager in 1997 -- AML §353-a(1) makes the intentional killing of or causing of serious physical injury to a "companion animal" a felony subject to a maximum prison sentence of 2 years.
A "companion animal" is defined as "any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of" its owner.
Garcia appealed the animal-cruelty conviction.
"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," according to the decision. "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."
Catterson -- along with Justices John T. Buckley, Joseph P. Sullivan, Milton L. Williams and Luis A. Gonzalez -- disagreed.
"The Legislature simply did not require a reciprocity of affection in the definition of 'companion animal,'" Catterson wrote.
The panel also dismissed the defense's argument that domesticated animals by definition "no longer possess the disposition or inclination to escape."
"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," Catterson stated. "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."
Although the decision sets new precedent regarding animal cruelty, on a practical level it will have no effect on the present case. Garcia's 5-year sentence for killing the goldfish was merged into his sentence on the other charges.
Robert S. Dean of the Center for Appellate Litigation represented Garcia. He said that absent the other charges the killing of the goldfish would not have merited a 2-year sentence. He added that his client intends to appeal.
Assistant District Attorneys Alice Wiseman and Donald J. Siewert represented the Manhattan District Attorney's Office. Through a spokeswoman, they declined to comment.