People v. Benjam (In re Restifo)

220 A.D.3d 1113

199 N.Y.S.3d 247

The PEOPLE of the State of New York, Respondent,

v.Benjamin RESTIFO, Appellant.

110862

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 12, 2023

Decided and Entered: October 26, 2023

Adam W. Toraya, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P. Appeal from a judgment of the Supreme Court (Kathleen B. Hogan, J.), rendered September 7, 2018 in Schenectady County, upon a verdict convicting defendant of the crime of aggravated cruelty to animals.

In the early evening of July 8, 2017, defendant was walking Aurora and Kaia, his two pit bull dogs, on Emmett Street in the City of Schenectady. The dogs became agitated as they walked past the home of Catherine Richards and Leslie Richards, and witnesses described defendant walking uninvited into the fenced yard and toward the front porch of their residence. Defendant walked the leashed dogs far enough into the yard to allow them to climb the steps to the front porch – a distance of 14 feet, 5 inches from the fence line – and reach the Richards’ pet cat, Buttons, who was on the porch. The dogs mauled Buttons and, when Leslie Richards came out to investigate why his upstairs tenant was yelling, he found defendant standing there with his dogs, one of whom had Buttons in its mouth. Defendant rebuffed the demands of Leslie Richards and other neighbors to make the dogs stop, then pulled the dogs away and tried to flee with Buttons still in one of the dogs’ mouths. Leslie Richards and neighbors who had witnessed the attack pursued defendant and continued to demand that he make the dog drop Buttons, which he did not. The crowd followed defendant back to his residence on Albany Street, where the dog finally dropped Buttons. Leslie Richards retrieved the body of Buttons from the street.

As a result of the incident, defendant was charged in an indictment with aggravated cruelty to animals and overdriving, torturing and injuring animals; failure to provide proper sustenance. Defendant was convicted as charged following a jury trial. Supreme Court sentenced defendant to six months in jail and five years of probation on the aggravated animal cruelty conviction, and a concurrent term of nine months in jail on the overdriving, torturing and injuring animals conviction. Defendant appeals.

We begin by noting that, during the pendency of this appeal, Supreme Court granted defendant's CPL article 440 motion seeking to vacate the overdriving, torturing and injuring animals conviction upon the ground that it was a lesser included offense of aggravated animal cruelty. We accordingly limit our discussion to the conviction for aggravated animal cruelty, and affirm.

First, defendant contends that the verdict is not supported by legally sufficient evidence and is also against the weight of the evidence. "When considering a challenge to the legal sufficiency of the evidence, this Court views the evidence in the light most favorable to the People and evaluates whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Davis, 200 A.D.3d 1200, 1201, 157 N.Y.S.3d 580 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted]; accord People v. Cotto, 218 A.D.3d 1021, 1022, 193 N.Y.S.3d 419 [3d Dept. 2023] ). In contrast, a weight of the evidence review requires this Court to "view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not," proceed to "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Montford, 207 A.D.3d 811, 812, 170 N.Y.S.3d 735 [3d Dept. 2022] [internal quotation marks and citations omitted], lv denied 39 N.Y.3d 941, 177 N.Y.S.3d 539, 198 N.E.3d 782 [2022] ; see People v. Cotto, 218 A.D.3d at 1022, 193 N.Y.S.3d 419 ).

"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" ( Agriculture and Markets Law § 353–a [1] ). Aggravated cruelty is defined as an act, omission or neglect that, as charged to the jury here, "is done or carried out in an especially depraved or sadistic manner" ( Agriculture and Markets Law § 353–a [1][ii] ; see Agriculture and Markets Law § 350[2] ). In assessing whether that standard has been met, a key consideration is "whether the killing or serious physical injury to a companion animal was done in a manner likely to prolong the animal's suffering, and whether the defendant's acts ... ‘considered cumulatively’ establish the elements of [the] crime" ( People v. Valdez, 181 A.D.3d 981, 983, 121 N.Y.S.3d 181 [3d Dept. 2020] [internal quotation marks, brackets and citation omitted], quoting People v. Degiorgio, 36 A.D.3d 1007, 1008–1009, 827 N.Y.S.2d 342 [3d Dept. 2007], lv denied 8 N.Y.3d 921, 834 N.Y.S.2d 511, 866 N.E.2d 457 [2007], cert denied 552 U.S. 999, 128 S.Ct. 506, 169 L.Ed.2d 354 [2007] ). The parties stipulated at trial that defendant was the man with the two pit bulls that killed Buttons, a companion animal, and there was no dispute that the killing had no justifiable purpose. The only question, as a result, is whether the proof established that defendant intended to kill or seriously injure Buttons with the requisite aggravated cruelty.

Defendant was well aware that his dogs were "very aggressive," as he put it in his testimony, and he acknowledged that he even kept the dogs away from his young son because it was "not worth the risk." By the time the dogs killed Buttons in July 2017, he also knew that they would attack smaller animals, including pets, and the proof reflected that he was uninterested in addressing the problem. For example, the trial included testimony from a homeowner who described an incident prior to the attack on Buttons in which defendant allowed his leashed dogs to run onto her porch and lunge at two feral cats without making any effort to stop them. Other testimony revealed a second incident in May 2016 wherein defendant's dogs fatally mauled a small dog when the dog ran toward them. The small dog's owner and another eyewitness testified that defendant made no effort to stop that attack either, instead telling the small dog's owner that it was "done" and to let defendant's dogs "finish it." The pit bulls were so aggressive, in fact, that an animal control officer testified to telling defendant in September 2016 that he should keep them muzzled while walking them. Defendant, despite that warning, did not muzzle them and continued to walk them on a regular, six-foot leash. Other testimony reflected that defendant consciously allowed the pit bulls to attack other animals, with his former coworkers testifying as to how he bragged about his prowess in controlling aggressive dogs and how he let his pit bulls "go after" other dogs and go off leash to attack "wild animals and old animals."

The proof, in other words, reflected that defendant was aware of his pit bulls’ aggressive behavior toward other animals, made little effort to stop their penchant for attacking smaller animals and, in fact, encouraged it. Moreover, a next door neighbor of the Richards who witnessed the attack on July 8, 2017 testified that defendant calmly walked the pit bulls into the Richards’ yard and toward the front porch, where Buttons was visible, and made no effort to pull the dogs back. Thereafter, once the pit bulls had attacked Buttons, that neighbor and others testified that defendant did not stop the attack or even try to make the dogs drop the cat's carcass, instead choosing to leave the scene with Buttons still in one of the dogs’ mouths and protesting that he could not "do anything." Viewing the foregoing proof in the light most favorable to the People – and stressing that "[c]riminal intent may be inferred from the totality of the circumstances or from the natural and probable consequences of the defendant's conduct" – it provided a valid line of reasoning from which the jury could infer that defendant trespassed into the Richards’ yard on July 8, 2017 with the aim of letting the pit bulls reach Buttons and knowing full well what would happen if they did so ( People v. Conway, 179 A.D.3d 1218, 1219, 116 N.Y.S.3d 118 [3d Dept. 2020] [internal quotation marks, ellipsis, brackets and citations omitted], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 288, 147 N.E.3d 558 [2020] ). Accordingly, "considered cumulatively under the prevailing circumstances, we conclude that the proof was legally sufficient to satisfy the statutory elements of the charged crime" ( People v. Degiorgio, 36 A.D.3d at 1009, 827 N.Y.S.2d 342 ; see People v. Valdez, 181 A.D.3d at 985, 121 N.Y.S.3d 181 ).

To be sure, defendant offered a different account in his testimony. Defendant downplayed the importance of, as well as his culpability in, the prior incidents in which the pit bulls attacked other animals. He also denied telling a coworker that he let the pit bulls attack other dogs and denied having been told by the animal control officer to muzzle the pit bulls when he was walking them. As for the July 8, 2017 incident itself, defendant denied having any intent to harm Buttons, claiming that the pit bulls became alert and entered the Richards’ yard on their own and that he was trying to guide them away when he became distracted by the Richards’ upstairs tenant yelling at him to get off of the property. He further...